August 10, 2021
By Stephen Silverman
Several years ago, innocent grandmother Malinda Harris found herself the target of government bullies: Her car was taken and held under the state’s civil asset forfeiture laws, which allow government to take and hold a person’s private property, even when they haven’t been accused—let alone convicted of a crime. It was only after the Goldwater Institute got involved that Berkshire County, Massachusetts, police agreed to return the car to her earlier this year.
Malinda’s predicament is a glaring example of how abysmal the Bay State’s asset forfeiture laws truly are. But good news: Reform may be on the way.
Massachusetts’ forfeiture laws are among the most stringent in the country, putting the onus on Americans to prove their innocence, rather than on government to prove their guilt. Between 2000 and 2019 alone, Massachusetts confiscated at least $327 million through civil asset forfeiture. Yet nationally, the average currency forfeiture is a little less than $1,300, less than the cost of a lawyer to fight forfeiture—which shows that fighting back against the seizure of one’s property often just don’t make financial sense. Not surprisingly, then, around 80% of forfeiture cases go unopposed.
But this may change, if the Massachusetts Legislature adopts changes recommended by a special legislative commission to study the state’s forfeiture laws. The Special Commission to Study Civil Asset Forfeiture Policies and Practices in the Commonwealth recommends raising the state’s burden of proof: Massachusetts’ burden of proof is the lowest of any state, requiring that the prosecutor only show “probable cause” that a person’s property is subject to forfeiture. It also suggests that Massachusetts improve its financial reporting requirements, allow for public defender representation, and tackle the pervasive “policing-for-profit” model by directing that forfeiture proceeds go to the general treasury or for specific programs.
The Commission’s proposals are a good start, but more ought to be done. At a minimum, the Massachusetts Legislature should require that forfeiture cases be filed within a short period of time after forfeiture. Even though the vast majority of forfeitures in the state are unopposed, only 72% of Massachusetts forfeiture cases are resolved in under a year. This creates situations like Malinda Harris’—situations in which an innocent person loses their property for years at a time. Under federal law, a notice of forfeiture must be filed within 60 days of seizure, but nothing in the recommended changes addresses this glaring deficiency in Massachusetts law.
But in order to implement truly meaningful reform, Massachusetts—and all states—should require a criminal conviction before the government can take someone’s property or abolish the practice of civil forfeiture completely. New Mexico largely abolished civil asset forfeiture in 2015 without sacrificing public safety. This year, Arizona enacted the Goldwater Institute’s asset forfeiture reform, and Maine, Nebraska, and North Carolina also acted to end civil asset forfeiture and require a criminal conviction for almost all forfeiture matters.
It is admirable that Massachusetts wants to move up from the bottom. But it should aspire to be among the best states in protecting property rights, not just to be in the mediocre middle.
Stephen Silverman is a Senior Attorney at the Goldwater Institute.