Lawmakers consider reform of civil asset forfeiture

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    Hampden District Attorney Anthony Gulluni speaks at a press conference June 23, 2022, addressing a bill that would reform the practice of "civil asset forfeiture" in Massachusetts. STAFF PHOTO/DUSTY CHRISTENSEN

  • Northwestern District Attorney David Sullivan STAFF FILE PHOTO/PAUL FRANZ

Staff Writer
Published: 6/26/2022 8:34:53 PM

NORTHAMPTON — A bill making its way through the Legislature would reform the way law enforcement agencies in Massachusetts currently seize money and spend it.

Called “An Act relative to forfeiture reform,” the legislation would change the state’s process of “civil asset forfeiture” — the system by which law enforcement can confiscate money and assets from people if they think that property is connected to illegal activity. And if those assets are “forfeited” in a court case separate from any criminal charge that person may be facing, district attorneys and police departments get to keep that money and spend it at their discretion.

Currently, Massachusetts is the only state in the country where the legal bar law enforcement has to clear to support the seizure of property is “probable cause” — the lowest possible standard of proof. The bill would raise that standard to the next highest level, “preponderance of evidence.” It would also establish a $250 minimum for forfeiture, would send forfeited money not to police and district attorneys but instead into the state’s general fund, and would provide those facing civil asset forfeiture the right to an attorney if they are found to be indigent.

“There are certain principles that we want to uphold in every area of the law, including innocent until proven guilty and a right to an attorney,” said state Sen. Adam Hinds, D-Pittsfield, who is one of the original co-sponsors of the bill.

Hinds said the bill is a continuation of the state Legislature’s criminal justice reform efforts in recent years. The bill has already been voted favorably out of the Senate’s Judiciary and Ways and Means committees, and might come up for a vote this week after it was tabled during a session Thursday, he said.

‘Insult to taxpayers’

As momentum grows behind the bill, however, some in law enforcement are coming out strongly against the reforms.

In particular, Hampden District Attorney Anthony Gulluni slammed the bill, holding a press conference on Thursday to criticize the efforts. Gulluni, the county’s top prosecutor, called the bill “an insult to taxpayers” and “a solution in search of a problem.”

“This bill affords no respect to those who have lost a loved one to drug addiction, no respect to our neighborhoods and communities fighting against drug dealers, no respect to law enforcement who’s working every day to hold dealers and traffickers accountable and no respect to the taxpaying citizens of the commonwealth of Massachusetts,” Gulluni said.

Gulluni said that after seizing property and filing a case against it, his office doesn’t move for forfeiture until a related criminal case is resolved. Other district attorneys have said the same, including Worcester County District Attorney Joseph Early Jr., who told the news outlet WBUR that his office waits for criminal cases to conclude before filing for forfeitures. A WBUR investigation did find that in 2018 nearly a quarter of all forfeiture cases filed in Worcester County had no accompanying drug conviction or criminal drug case filing.

The Legislature put together a special commission to study civil asset forfeiture in the state, and last year it released its report, which found that from fiscal year 2018 to 2019, in the 2,100 forfeiture cases disposed of in the Superior Court, an owner made a claim to the seized property in only 417 cases. Of all those 2,100 cases, 72% resulted in default judgments in favor of law enforcement, 235 ended in a settlement, 151 ended in a judgment by judge or jury and 184 were dismissed, the report found.

“The Commission was unable to definitively determine the cause of such a high proportion of defaults but discussed the possibility of the added costs and attention necessary to deal with the separate forfeiture action while criminal charges were pending,” the report said.

In some cases, police end up seizing money from people who face no charges or allegations at all. Last year, for example, Holyoke agreed to return nearly $25,000 to a woman whose lawyer said she was the subject of an ”illegal shakedown” at the hands of Holyoke police. She had not been accused of any crime, nor did prosecutors file for civil asset forfeiture on the seized money, which the city immediately returned after she sued.

Spending the money

Gulluni said money his office takes from alleged drug traffickers in forfeiture cases goes to important law enforcement work like forensic analysis in investigations, community organizations — everything from funding drug prevention and recovery efforts to money for the Holyoke Boys & Girls Club to buy new gym equipment — the opioid overdose-reversing medication naloxone and more.

“This … is the ‘Robin Hood effect,’” he said.

State law currently ensures that forfeiture proceeds are evenly split between district attorneys and local police departments. The Legislature’s special commission found that the top three categories that the state’s 11 elected district attorneys and the attorney general used their forfeited money on were “other law enforcement purposes, protracted investigations, and distribution to police.”

“Training only accounted for 6% of expenditures in 2018, 4% in 2019, and 1.3% in 2020,” the report notes. “Furthermore, community grants amounted to 8% of spending in 2018, 12% in 2019, and 1.5% in 2020.”

A recent Gazette investigation found that the Holyoke Police Department spent around $310,000 in forfeiture money from 2018 through this month, mostly on overtime for police officers, as well as everything from tasers to desk chairs. The funds help offset overtime costs for complex investigations, the department said.

Hinds said that the state’s budgeting process is “very transparent,” particularly when it comes to funding the state’s district attorney offices and the equipment they need.

“If there are concerns around budget resources and equipment procurement, we can have those conversations,” Hinds said. “But that’s separate from how we’re treating folks suspected of being involved in a crime and having property and money taken before any of that is proven.”

‘Unfair process’

Gulluni also came out against the idea of public defenders representing indigent clients facing civil asset forfeiture, describing it as providing “drug traffickers with free, taxpayer-funded lawyers to protect their drug money.” So, too, did Northwestern District Attorney David Sullivan, who in a phone interview echoed a lot of the same points as Gulluni.

“It’s pretty outrageous,” Sullivan said, noting that those seeking restraining orders in domestic violence cases or facing eviction don’t receive public defenders in Massachusetts.

Hinds said that he agrees that defendants in those cases should also have the right to a public defender if they need one.

“Our current asset forfeiture system is among the worst in the country and allows for an unfair process where police and prosecutors can supplement their operating budgets with almost no oversight,” said Anthony Benedetti, the chief counsel at the Committee for Public Counsel Services, the agency responsible for providing legal services to those who are unable to afford them in Massachusetts,

Benedetti said that when clients represented by public defenders have their assets seized by the state, it is “a massive burden for them to receive due process because hiring an attorney would often cost more than the actual value of their property.”

He noted that around 80% of people never even make a legal claim for their property when facing civil asset forfeiture, according to the state legislature’s report.

“During these moments, the right to counsel is necessary,” Benedetti said. “Efforts to deny the due process rights of those who have the least is an affront to the very legal system we have all sworn to protec t.”

Correction: This story has been updated to clarify that Worcester County District Attorney Joseph Early Jr. told the news outlet WBUR that his office waits for criminal cases to conclude before filing for civil asset forfeiture.

Dusty Christensen can be reached at dchristensen@gazettenet.com.

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