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Civil Forfeiture Under Fire in Massachusetts

by Jayson Hawkins

Devantee Jones-Bernier did not have any drugs on him when police executed a search warrant on the apartment where he was visiting some friends in Worcester, Massachusetts. Marijuana was found in the unit, and so Jones-Bernier was initially charged along with everyone else there. Police also took his phone and $95 he had in his pocket. The charges were later dropped, but like so many others arrested in similar situations in Worcester and elsewhere in Massachusetts, he never got his property back.

When police confiscate money or property during an arrest, they can often keep it through a process called civil forfeiture. Though this process was designed to be brought to bear on drug traffickers to destabilize and disrupt their operations, it is most often used to confiscate the pocket money of people arrested for small crimes, many of whom are never formally charged, much less convicted.

Some form of civil forfeiture exists in almost every jurisdiction in America, but Massachusetts is an outlier in the low bar police must meet to justify confiscation, the lack of oversight in how forfeiture cases are processed, how seized money is spent, the difficulty in challenging a forfeiture claim, and, not surprisingly, the high number of forfeiture cases in terms of both incidents and cash forfeited per capita.

Worcester County ranks among the most aggressive forfeiture counties in the state. The county district attorney, Joseph D. Early, Jr., has since his election in 2006 trumpeted his use of confiscated money to fund his office’s activities, including nearly $4 million from 2017-2020. But the anomaly of forfeiture law in Massachusetts, and its possible abuse in Worcester County, have drawn the attention of social justice advocates, media, and state oversight commissions.

ProPublica and local station WBUR took an in-depth look at how civi1 forfeiture works in Worcester County, and when they pierced the veil of obfuscation, poor records, and the disconnect between criminal charges and forfeiture, the investigation found a startling pattern of confiscations held for years before being processed, confiscations with no accompanying conviction, and nearly insurmountable obstacles between citizens and unjustly confiscated property.

There is no public recording of criminal conviction rates tied to forfeitures. To get any sense of the situation, investigators at WBUR analyzed all Worcester County forfeitures in 2018, a year they chose to allow sufficient time for any criminal case to be adjudicated. Their analysis found forfeitures across several courts resulting from 396 seizures. Of these seizures, 90 instances were uncovered detailing forfeitures of cash or cars where there was no accompanying conviction. This number, astonishing as it is, is probably an underrepresentation because another 9% of seizures had no publicly available records to examine, meaning either there were no charges or the courts sealed the records.

It is also unclear how many additional seizures are still being processed because Worcester County has a long record of holding forfeitures for years (or even decades) before sending forfeiture claims through the civil courts. WBUR found more than 500 cases from 2016-2019 where the district attorney’s office had held seized money for a decade or more before actually adjudicating the forfeiture. One instance dated back to 1990.

Early’s office has a habit of bundling forfeiture cases. Over the last five years, cases involving 1,270 people and $350,000 in cash and assets were packaged into 16 forfeiture proceedings. Almost three-quarters of the seizures were over three years old before the forfeiture was filed.

The record in Worcester County is to bundle 700 incidents into one forfeiture case, but Jones-Bernier’s $95 was part of a smaller package—109 incidents (including a forfeiture of $11) amounting to $28,356.50 and spanning nearly 20 years.

He did not see his name in the fine print of the newspaper notification, nor did the DA’s office try to reach him at home. Thus, he never knew the forfeiture was complete until contacted by WBUR.

He is not alone. Eighty-four percent of the civil forfeiture cases in Worcester County in 2019 were default judgments. Sometimes, the people with a pending claim don’t respond in the 20-day window because they are unaware of the pending case, like Jones-Bernier sometimes the cost of fighting in court is beyond their financial reach or not worth the small amounts involved—and sometimes, the police have legitimately confiscated cash that is unquestionably tied to a drug crime.

Even when people do contest their loss, it is unusual for them to prevail. According to data obtained through a public records request, of more than 1,000 seizures from 2017-2019, Early’s office returned money to only 16 people.

There have been efforts at the state level to reform the civil forfeiture system in Massachusetts. Pending legislation would require a conviction and provide indigent citizens with legal counsel for the civil proceeding. A state commission was formed in 2019 to study the system, but it often had trouble getting data from county DAs, including Joseph Early. The commission recommended to the legislature that the burden of proof for forfeitures be raised, that counties lose the financial incentive to confiscate by being required to send the money to the state, that a minimum amount be set for confiscations, and that a more thorough record system be created.

District Attorneys like Early remain largely unmoved. Worcester County altered its policies after the state commission released its report—creating a minimum confiscation level of $1,000 and putting a two-year limit on time between confiscation and forfeiture filing, but he dismisses most of the criticism he faces on the issue.

“In no way, shape, or form do we look at this as an infringement on people’s rights,” he said. “We follow the rules the court gives us.”

Early’s office, however, has become a lightning rod for activists challenging forfeiture laws, and his behavior has not helped his cause. State auditors found in 2013 that over $50,000 in forfeiture money that flowed through his office was inadequately accounted for. More recently, controversy has arisen from the purchase of cars for Early and an assistant with confiscated money. Again, he denies any wrongdoing.

It is still unclear whether the reforms before the legislature will pass, or what practical effect they might have. Other states in New England have passed similar efforts, but most observers say not enough time has elapsed to gauge their impact.

In the meantime, the Massachusetts system will remain, according to Rahsaan Hall who sat on the civil forfeiture commission and is currently director of the Racial Justice Program for the ACLU in Massachusetts, “a stain on our identity.”  

Source: propublica.org

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