Massachusetts Lawyers Are Challenging Law Enforcement Seizures

Above Photo: Sophie Morse for WBUR.

Following Our Investigation, Massachusetts Lawmakers Are Calling For Changes To The State’s Civil Asset Forfeiture System, Which Allowed One Top Prosecutor To Keep People’s Money For Years, Even When They Weren’t Charged With A Crime.

Lawmakers and criminal justice advocates in Massachusetts are calling for changes to the laws that govern how law enforcement seizes, and keeps, cash and property confiscated in suspected drug crimes. The push follows a WBUR and ProPublica investigation that found a top prosecutor stockpiling people’s money for years, even when they weren’t charged with a drug offense or their cases were dismissed.

The system, known as civil asset forfeiture, was designed to disrupt criminal drug operations, but in Massachusetts, it’s easier for prosecutors to hold onto cash indefinitely once it’s seized. That’s because, under state laws, district attorneys need only meet the lowest legal burden of proof, probable cause, to support suspicions that the money was involved in a drug crime; DAs also face no deadline to notify a person that they intend to keep the cash.

In Worcester County, where annual forfeiture numbers are among the highest in the state, that has led to long delays and, according to legal experts, potential violations of due process rights under the U.S. Constitution. WBUR and ProPublica found District Attorney Joseph D. Early Jr.’s office routinely waits years before attempting to notify someone of their right to legally fight for the return of their money.

In more than 500 instances between 2016 and 2019, our analysis showed that Early’s office held onto seized money and property for more than a decade before filing a motion in court seeking to retain the seized goods and cash.

In an interview, Early told the news organizations that his office obeys the law, but he said he now plans to file civil forfeitures within two years of when the corresponding criminal case is closed. According to a WBUR analysis, the majority of states require DAs to take action within 90 days of a seizure or the conclusion of a criminal case.

Some lawmakers say it’s time to require a deadline for prosecutors in Massachusetts.

State Sen. Jamie Eldridge co-chaired a state commission that recently suggested a range of changes to Massachusetts’ civil forfeiture laws. But he said in an interview that he had no idea some DAs were delaying for so long before he read the WBUR/ProPublica investigation.

“I think what you’ve discovered just highlights another example of injustice in the court system,” Eldridge said. “Elected officials should not be saying that we are a progressive state in the area of civil liberties.”

Eldridge, who also co-chairs the state Legislature’s Joint Committee on the Judiciary, said he will talk with fellow lawmakers about setting a forfeiture deadline for DAs, either through new legislation or in a bill that’s currently being reviewed by his committee.

State Rep. Jay Livingstone, one of the measure’s main sponsors and a former assistant district attorney in Middlesex County, said he’s considering filing such an amendment in response to the WBUR/ProPublica investigation.

“There’s a limit on every type of cause of action civilly, and so it’s surprising that people don’t believe there’s one for civil forfeiture,” he said, “but it seems to me that there should be.”

Two of Livingstone’s prior measures to overhaul the forfeiture system have failed in recent years, but other lawmakers are also pressing the case this session. State Sen. Cindy Creem is sponsoring a companion measure in the Senate.

“It is critical that any system allowing the government to take the personal property of its citizens require the government to meet a high burden of proof, provide significant due process protections and be done in an open and transparent manner,” she said in a statement. “I believe the report of the Special Commission and the recent WBUR investigation reinforce the fact that our state’s civil forfeiture system does not currently meet these standards and is in need of significant reform.”

State Rep. Michael Day, the other co-chair of the Joint Committee on the Judiciary, said the state’s civil forfeiture laws have been on the Legislature’s radar for some time, but the WBUR/ProPublica investigation has helped shine a light on the issue. Day anticipates a committee hearing this fall to review the pending legislation.

“Right now, we’re trying to make sure we get through these hearings and act on things that we believe should be moving at a vigorous pace in the state, and this may very well be one of those issues that we take up this year or this session,” Day said.

State Sen. Michael Moore represents parts of the city of Worcester and neighboring towns, and he was also a member of the state’s commission on civil forfeiture. He said he too now believes the Legislature should address the timeliness of civil forfeiture filings to ensure due process rights are upheld. Some leading stakeholders in the criminal justice system agree.

“A delay in due process is a delay in justice,” said Lisa Hewitt, general counsel for the Committee for Public Counsel Services, the statewide public defender’s office. She said lawmakers should go further and abolish civil forfeiture, as four states have done, including nearby Maine.

Asked about the delays in Worcester County and the potential due process violations, a spokesperson for Attorney General Maura Healey said the office finds “any system in which due process protections and constitutional rights are not being met deeply concerning — especially one that can disproportionately impact low-income communities and communities of color.” Spokesperson Chloe Gotsis said the office is reviewing the current legislative proposals related to forfeiture.

Early said that the district attorney’s office follows the laws and rules set forth by the court, and that he believes individuals who wish to take action to get their money and property back are able to do so. But, as WBUR and ProPublica reported this month, people have just 20 days to respond after notification — one of the shortest response windows in the nation — leaving little time for a letter to be rerouted from an incorrect address or for the person to hire an attorney.

As a result, the majority of civil forfeiture cases are ruled in the district attorney’s favor by default, meaning people took no action to get their money back. In Worcester County, 84% of forfeiture cases in fiscal year 2019 were default judgments, according to data from the trial court.

WBUR’s analysis also showed that nearly 1 in 4 seizures of cash and property that the Worcester DA’s office filed forfeitures for in 2018 either were not associated with a criminal conviction or weren’t even linked to a criminal drug charge. (This is a first-of-its-kind accounting in Massachusetts, and the news organization chose 2018 as the year of study to allow sufficient time for related criminal cases to have concluded.)

Civil rights advocates say this statistic shows why the state should require criminal convictions before law enforcement officials are allowed to keep money and property. Some other New England states, like Connecticut, New Hampshire and Vermont, have conviction provisions before property can be forfeited.

Rahsaan Hall, director of the racial justice program at the ACLU of Massachusetts, pointed to WBUR’s findings in saying he’ll continue pushing for changes to the state’s civil forfeiture laws. He supports Livingstone’s bill, which would require a conviction before prosecutors can keep seized money and belongings.

“There’s more than enough evidence to show that it is a problem and something needs to be done about it,” Hall said of the existing civil forfeiture system. “And my hope is — and I will continue to advocate for this — that the Legislature changes the law so that civil asset forfeiture can no longer be abused by police and district attorneys and that people have some protections against the current practices.”

Gov. Charlie Baker’s office declined to comment on the WBUR/ProPublica investigation, but a spokesperson said the administration would review any legislation that reaches the governor’s desk.