Asset forfeiture reformers eye scope of seizures

Boston Statehouse

BOSTON, Mass. (State House News Service)–With civil asset forfeiture laws coming under scrutiny in Massachusetts and around the country, lawmakers and advocates pushed Tuesday to force law enforcement agencies to document how much they are seizing and how it is being spent in an effort to better understand the system before reforming it.

Rep. Danillo Sena and Sen. Becca Rausch both testified before the Committee on State Administration and Regulatory Oversight on behalf of the bills they filed (H 3233 / S 2105) to bring transparency to the civil forfeiture process.

Sena, of Acton, said told the committee that civil forfeiture has a disproportionate impact on residents of color who are more likely to find themselves involved with the justice system. And Rausch, of Needham, said the bill was “needed to create accountability where it is lacking and help us understand the extent of this practice, which has been criticized as a violation of constitutional due process rights.”

The practice of civil asset forfeiture allows law enforcement to seize money and property that it believes was used in the commission of a crime, mostly drug crimes. Experts and public officials familiar with the system, however, said there is little oversight or insight into who that property is being taken from, and how asset-related revenues are being spent once seized.

Furthermore, Massachusetts requires district attorneys to meet the lowest burden of proof, probable causes, in forfeiture cases, rather than the preponderance-of-the-evidence standard used by many other states. Maine this summer became the fourth state to abolish its civil forfeiture laws and require a criminal conviction for law enforcement to seize property and bank accounts. “Without more information about how forfeiture is used in the Bay State, legislators are at a disadvantage considering potential reforms to Massachusetts forfeiture laws,” said Dan Alban, senior attorney and co-director of the Institute for Justice’s National Initiative to End Forfeiture Abuse.

The Sena-Rausch bills would require the attorney general, district attorneys and police departments to report annually on property seizures and expenditures, and would instruct Treasurer Deb Goldberg to build a public database that would report a variety of information, including where property was seized, how long it was kept and the whether the suspect ever faced criminal charges.

The committee’s consideration of the bill comes in the wake of reporting done by WBUR and ProPublica that scrutinized the state’s civil forfeiture system, particularly in Worcester County where the district attorney kept seized property for years before initiating forfeiture cases, in many cases even after criminal charges were dropped or dismissed.

Alban said that without adequate data collection and public reporting, it’s impossible to fully understand whether criminals are, in fact, the individuals most impacted by civil forfeiture, or to track how law enforcement agencies are spending the money and assets they seize.

The Institute for Justice has found that in other states the median value of a forfeiture is about $1,300, breaking what it described as a misconception that law enforcement is mostly seizing large banks accounts and homes from drug dealers.

More reporting in Massachusetts would not only inform policymakers of the median value of a seizure, but also allow lawmakers to hold district attorneys and other agencies accountable for how they spend those funds. “Those expenditures are off budget and not controlled by any legislative body. They’re controlled exclusively by either the district attorney’s office or the law enforcement agency that’s been allocated the funds, and so as a result of that we have very little insight into what this money is spent on,” Alban said.

The Institute for Justice reported that from 2000 to 2019, $327 million was forfeited in Massachusetts, including $12 million under state law in 2018 and another $24 million under federal law that was returned to Massachusetts through the federal equitable sharing program. Through public record requests, IJ found that 53 percent of the funds forfeited in 2018 were spent by public agencies in the category of “other,” while other funds went toward things like equipment and training.

Rep. Antonio Cabral, the co-chair of the committee, said he has been filing legislation to require reporting on seizures in drug crimes since the 1990s. “I think all of your years of labor may be coming to a head just now,” the ACLU’s Rasaan Hall told Cabral.

Hall, director of the racial justice program of the ACLU of Massachusetts, said the bills would “help elucidate what is happening in the courts.” Hall said he also hopes that either through this bill or subsequent bills that the state will take a closer look at the demographics of those involved in civil forfeiture cases in an attempt to confirm the widely held belief that the system disparately impacts Black and Latinx residents.

Lisa Hewitt, general counsel of the Committee for Public Counsel Services, was a member of the 2019 Special Commission to Study Civil Asset Forfeiture, and she called the notion that the forfeiture laws are used mostly to confiscate property from drug kingpins “patently false.” While Hewitt said much of what the commission learned was “how little data we actually collect,” she said the data they did uncover showed 75 percent of forfeiture cases involved sums of less than $5,000 and half involves property worth less than $2,000. Hewitt noted that many cases wind up having no connection to a criminal case and 80 percent of forfeitures go unchallenged because the defendant has no right to counsel.

“We aren’t taking about money from big drug cartels. We’re talking about taking sometimes the last dollars a person has to their name. Shouldn’t we at least give them a chance to explain why it is rightfully theirs and perhaps it was illegally taken,” Hewitt said.

The Judiciary Committee is considering additional legislation this session that proposes to reform the civil forfeiture laws.

Alex Matthews, a volunteer with the non-profit advocacy group Digital Fourth, said his organization believes Massachusetts has a “grave problem with abusive asset forfeiture powers,” but he noted for the committee that the Sena-Rausch bill would do nothing to change existing forfeiture laws. “To vote this bill through, you don’t have to believe that there are abuses. It only means that you’re interested in clearly establishing whether there are abuses,” Matthews said.

Rep. Steven Xiahros, a Barnstable Republican and former deputy police chief in Yarmouth, said he has firsthand knowledge of how forfeited property and funds are processed and used by police departments, and would be happy to work with the committee and stakeholders to “get this over the goal line.”

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