In an extensive report released late last week, a special commission created by the Massachusetts Legislature urged lawmakers to overhaul civil forfeiture, which lets law enforcement seize and keep property without prosecutors ever charging anyone with a crime. Although civil forfeiture is often defended as a way to target drug kingpins, the reality is far different. Over the past three fiscal years, 86 percent of all cash forfeitures involved amounts of less than $10,000, including as low as $6.20.
Worse, once a property has been forfeited, police and agencies can keep up to 100 percent of the proceeds. According to the Institute for Justice’s nationwide study of civil forfeiture, Policing for Profit (which was included in its entirety as an exhibit to the special commission’s report), Massachusetts law enforcement has forfeited nearly $182 million under state law since 2000.
Established in 2019, the Special Commission to Study Civil Asset Forfeiture Policies and Practices in the Commonwealth was tasked with examining the scope of civil forfeiture in Massachusetts, as well as best practices found in other states. Among its multiple recommendations for reform, the most sweeping would be to redirect all forfeiture funds away from law enforcement coffers “to either the General Fund or specific programs to combat substance abuse or assist victims of crime.” As the special commission rightly points out, this reform “would remove an incentive to seize property in the budgetary self-interest of law enforcement.”
The special commission also urged lawmakers to raise the standard of proof to forfeit property. Currently, Massachusetts is an “outlier” and merely requires probable cause to permanently confiscate property, “the lowest burden of proof in the country.” That is a far cry from the highest standard, i.e. ending civil forfeiture and replacing it with only criminal forfeiture as have Nebraska, New Mexico, North Carolina, and most recently, Maine.
Moreover, to better protect low-income property owners from abusive forfeitures, the special commission recommended creating minimum seizure thresholds (as is the case in Alabama and Florida) and require court-appointed counsel for indigent owners in forfeiture cases. Since hiring an attorney to fight back in court can easily cost more than what the seized property is worth, many owners don’t even engage in civil litigation to get back their property. In recent years, 72 percent of all forfeiture cases in Massachusetts ended in a “default judgment,” or automatic wins for the government.
Finally, the special commission “found deficiencies in the reporting requirements,” which fail to show how “property is actually allocated.” Bolstering transparency requirements and “documenting all funds is essential for the fair administration of justice.”
“The special commission’s report confirms what we have long argued: Civil forfeiture is one of the greatest threats to private property and civil liberties in Massachusetts today,” said Institute for Justice Senior Attorney Dan Alban, who testified before the special commission and heads IJ’s initiative to end civil forfeiture. “Massachusetts has the absolute worst civil forfeiture laws in the nation. By adopting the special commission’s worthwhile recommendations, the Massachusetts Legislature can end policing for profit and become a leader in forfeiture reform.”