Report: MA Forfeiture Laws Receive Failing Grade

Monday, February 18, 2013

Adam Joseph Drici, GoLocalWorcester Contributor

State Auditor Suzanne Bump called for tighter procedures and increased transparency in the Worcester County District Attorney’s Office for the tracking and use of confiscated and forfeited funds in an audit released last week, and a report from the Institute for Justice gave the Bay State's civil forfeiture laws a failing grade based on how easily law enforcement can confiscate private property without even charging individuals with a crime.

In "Policing for Profit: The Abuse of Civil Asset Forfeiture," the Institute for Justice's authors delve into the civil asset forfeiture laws of all 50 states, as well as the federal government, and issue a grade to each. Unlike asset forfeiture in criminal cases, individuals subject to civil asset forfeiture do not have to be found guilty or even be charged with a crime in order for law enforcement agencies to seize their property.

With law enforcement in most states permitted to keep some or all of the proceeds from such forfeitures, the Institute for Justice report argues that civil forfeiture laws encourage "policing for profit," using seizures and forfeitures to bolster their own budgets.

The report's authors graded state laws on three criteria: the profit motive, based on what share of the proceeds from forfeitures state law enforcement agencies receive; the innocent owner burden, whether property owners are considered innocent or guilty; and the standard of proof, where the government must meet a higher bar before taking forfeited property from presumed innocent owners.

“Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head,” said Scott Bullock, an Institute for Justice senior attorney and a co-author of the report. “With civil forfeiture, your property is guilty until you prove it innocent.”

'A terrible civil forfeiture regime' in Massachusets

In his analysis of Massachusetts law, Bullock issued the Bay State an 'F' for its forfeiture law and a 'C' for state law evasion, for a final grade of 'D'.

"Massachusetts has a terrible civil forfeiture regime," the report states, earning among the worst grades in the country.

According to the report, under the Commonwealth's civil forfeiture law, law enforcement officials only have to show probable cause that an individual's property--money, a car, a home or any other private property--was related to a crime in order to forfeit it. At that point, the onus falls on the property owner to prove that the property was either not forfeitable or that he or she "did not know and should not have known about the conduct giving rise to the forfeiture."

In addition, Bay State law enforcement keeps all of the forfeited property. From their the prosecutor's office and local or state police split the proceeds from the forfeited property 50-50 and can use the money to supplement their own operations or for other law enforcement purposes.

The Commonwealth, which is required to collect forfeiture data, provided the Institute for Justice with figures for the years 2000 to 2003. During that four-year period, Massachusetts District Attorneys' Offices racked up $16,795,619 in forfeitures.

How much of that property was connected to criminal charges was unclear, but according to the Institute for Justice report, a full 80 percent of individuals who had their property seized by the federal government under forfeiture laws were never charged with a crime.

The Bay State is not alone

While Massachusetts was near the bottom with its combined grade of 'D' for its forfeiture laws, it was far from alone. Maine, Vermont and North Dakota were the only three states to receive combined grades of 'B' or higher. The Commonwealth and the remaining 46 states all received 'C's and 'D's.

"Private property is one of this nation’s most cherished principles, but it is a principle under assault by modern civil forfeiture law. The changes to civil forfeiture that gave law enforcement agencies a percentage of forfeiture proceeds while also giving them the upper hand in forfeiture proceedings have created a powerful incentive: seize, forfeit and profit," writes Bullock.

"But this pecuniary interest and the other advantages granted the government under civil forfeiture laws have distorted law enforcement priorities, altered officer and prosecutor behavior and led to a number of police and prosecutorial abuses."

Without abolishing civil forfeiture laws entirely, Bullock outlines a number of recommendations for state and federal government including removing the current profit incentive, imposing a higher standard of proof, placing that burden of proof on law enforcement rather than the property owner themselves and requiring all agencies to track and report forfeiture revenues and distributions so the information is readily available to the public.