Massachusetts lawmakers and advocates of criminal justice are calling for changes to the law that governs how law enforcement officers seize and retain seized cash and property in suspected drug offenses. The advance follows an investigation by WBUR and ProPublica that found a top prosecutor to have been storing people’s money for years, even if they haven’t been charged with a drug offense or their cases dropped.
This story was supported by the Pulitzer Center.
Known as civil forfeiture, the system was designed to disrupt criminal drug operations, but in Massachusetts it is easier for prosecutors to hold cash indefinitely once it has been confiscated. That’s because state law requires state attorneys to have minimal legal burden of proof, probable cause, to support suspicions that the money was involved in a drug offense; Neither do they have a deadline to notify a person that they intend to keep the cash.
In Worcester County, where annual confiscations are among the highest in the state, this has resulted in lengthy delays and, according to legal experts, possible violations of due process rights under the US Constitution. WBUR and ProPublica found that prosecutor Joseph D. Early Jr.’s office routinely waits years before attempting to inform someone of their right to legally fight for their money back.
In more than 500 cases between 2016 and 2019, our analysis showed that Early’s office held seized money and property for more than a decade before filing a court motion for the seized goods and cash to be withheld.
In an interview, Early told news organizations that his office was obeying the law, but he now plans to file civil forfeitures within two years of completing the relevant criminal proceedings. According to a WBUR analysis, most states require prosecutors to act within 90 days of a seizure or prosecution.
Some lawmakers say it is time to give Massachusetts prosecutors a deadline.
State Senator Jamie Eldridge, chairman of the Legislative Joint Judiciary Committee. (Jesse Costa / WBUR)
State Sen. Jamie Eldridge co-chaired a state commission that recently proposed a number of changes to Massachusetts’ civil recovery laws. But he said in an interview that he had no idea that some prosecutors were delaying so long before reading the WBUR / ProPublica investigation.
“I think what you’ve found just highlights another example of injustice in the judicial system,” said Eldridge. “Elected officials should not say that we are a progressive state in terms of civil liberties.”
Eldridge, who is also co-chair of the state legislature’s Joint Judiciary Committee, said he would speak with other lawmakers about setting an expiration date for DAs, either through new laws or in a law currently under scrutiny by its committee.
State Rep. Jay Livingstone, a key sponsor of the measure and former assistant district attorney in Middlesex County, said he was considering filing such an amendment in response to the WBUR / ProPublica investigation.
“There is a limit to any type of civil cause of action, and so it is surprising that people don’t believe there is a civil foray,” he said, “but it seems to me that there should be.”
“I think what you’ve found just underscores another example of injustice in the judicial system.
State Senator Jamie Eldridge
Two of Livingstone’s earlier measures to revise the recovery system have failed in recent years, but other lawmakers are pushing for the case at this session. State Sen. Cindy Creem is sponsoring an adjunct in the Senate.
“It is vital that any system that allows the government to steal its citizens’ personal property requires a heavy burden of proof from the government, provides significant protections from due process, and operates in an open and transparent manner,” said them in a statement. “I believe the report of the Special Commission and the latest WBUR investigation confirm the fact that our state’s civilian confiscation system does not currently meet these standards and requires considerable reform.”
State Representative Michael Day, the other co-chair of the Joint Judiciary Committee, said the state’s civil confiscation laws have been on the legislature’s radar for some time, but the WBUR / ProPublica investigation helped shed light. Day expects a committee hearing this fall to review pending legislation.
“Right now we are trying to make sure we get through these hearings and do things that we believe should be vigorously moving forward in the state, and that could very well be one of the topics we are taking up this year” or this session ” said Day.
State Sen. Michael Moore serves on the commission to investigate Massachusetts civil property forfeiture policies and practices. (Jesse Costa / WBUR)
State Sen. Michael Moore represents parts of the city of Worcester and neighboring cities and has also served on the state commission on civil confiscation. He said he, too, now believes that lawmakers should consider the timeliness of civil foreclosure requests to ensure due process rights are upheld. Some leading players in the criminal justice system agree.
“A due process delay is a judicial delay,” said Lisa Hewitt, general counsel for the Committee for Public Counsel Services. She said lawmakers should go further and end civil decay, as four states have done, including nearby Maine.
When asked about the delays in Worcester County and the possible violations of due process, a spokeswoman for Attorney General Maura Healey said the office finds “any system in which due process protection and constitutional rights are violated is deeply worrying – particularly one that may have a disproportionate impact on low impact “. -Income communities and color communities. ”Spokeswoman Chloe Gotsis said the office is reviewing current bills to expire.
Early said that prosecutors follow laws and rules established by the court and that he believes that people who want to take action to get their money and property back can do so. But as WBUR and ProPublica reported this month, people only have 20 days to reply after the notification – one of the shortest response windows in the nation – leaving little time to redirect a letter from a wrong address or an employee hire lawyer.
As a result, the majority of civil recovery proceedings are by default decided in favor of the prosecutor, which means that people have not taken any action to get their money back. In Worcester County, 84% of forfeiture cases in fiscal year 2019 were default judgments, according to the court of first instance.
Read the full study by WBUR and ProPublica here.
WBUR’s analysis also showed that almost one in four cash and property seizures that the Worcester prosecutor filed for forfeiture in 2018 either resulted in either non-criminal conviction or even criminal drug charges. (This is the first accounting of its kind in Massachusetts, and the news organization chose 2018 as its academic year to allow ample time to complete related criminal cases.)
Civil rights activists say these statistics show why the state should demand criminal convictions before law enforcement officers are allowed to keep money and property. Some other New England states, such as Connecticut, New Hampshire, and Vermont, have sentencing provisions before property can be forfeited.
“My hope is … that the legislature will change the law so that the confiscation of civil assets can no longer be abused by police and prosecutors and that people have some protection against current practices.”
Rahsaan Hall, director of the ACLU of Massachusetts
Rahsaan Hall, director of the Racial Justice Program at the Massachusetts ACLU, noted the results of WBUR and said he would continue to push for changes to the state’s civil confiscation laws. He supports Livingstone’s bill that would require a conviction before prosecutors can keep seized money and property.
“There is more than enough evidence that it is a problem and that something needs to be done about it,” Hall said of the civil recovery system in place. “And my hope is – and I will continue to advocate – that lawmakers will change the law so that the confiscation of civil assets can no longer be misused by police and district attorneys and that people have some protection against current practices. “
Governor Charlie Baker’s office declined to comment on the WBUR / ProPublica investigation, but a spokesman said the government will review any laws that reach the governor’s desk.
Comments are closed.