It's Easy For Police To Seize Money. Worcester's District Attorney Makes It Hard To Get It Back

Massachusetts is an outlier among states when it comes to civil forfeiture laws. Prosecutors in the commonwealth are able to keep seized assets using a lower legal bar than in any other state.

“It’s out of step with justice,” said Louis Rulli, a professor at the University of Pennsylvania who specializes in public interest law. “It produces unjust results and cries out for reform.”

Amid rising national attention to the issue, other states have rewritten their laws, and the U.S. Supreme Court recently ruled in favor of a man whose car was seized during an arrest on a small drug sale. But Massachusetts has not budged.

WBUR took an in-depth look at Worcester County, which ranks among the top counties for forfeitures in the state. An examination of all forfeitures filed there in 2018 found that of the hundreds of incidents, nearly one in four — or 24% — had no accompanying drug conviction or criminal drug case filing.

And that is likely conservative; another 9% of seizures had no publicly available court records, meaning there were no charges or courts sealed the records.

In an investigation with ProPublica, WBUR also found that Worcester County District Attorney Joseph D. Early Jr. regularly stockpiles seized money, including that of people not charged with a crime, for years, and sometimes decades.

In more than 500 instances between 2016 and 2019, WBUR found that funds had been in the custody of the DA’s office for a decade or more before officials had attempted to notify people and give them a chance to get their money back. One case dated back to 1990.

The years-long delays raise “obvious due process concerns,” according to Sam Gedge, an attorney at the Institute for Justice in Arlington, Va., a nonprofit that has studied the issue and advocated for changes to forfeiture laws across the country. “The notion that you have the government waiting even two years — but certainly two decades — to commence forfeiture proceedings is, if not unprecedented, then extraordinarily rare.”

Gedge said the latitude granted to law enforcement in Massachusetts in civil forfeitures reflects broad problems with the system nationwide. In general, he said, “It’s much easier for the government to take your cash, your car, your home, using civil forfeiture than it is to prove your guilt beyond a reasonable doubt in criminal court.”

Early, in an interview, said his office obeys the law.

“We follow all the rules that the court gives us,” he said. As for the long delays in filing forfeitures, “We try and get these wrapped up as expeditiously as we can,” Early said.

But for hundreds of people in Worcester County, it’s been anything but expeditious. There’s no oversight by the state when it comes to how long district attorneys wait to notify people that, without a court fight, their money will stay in law enforcement’s hands. And there is no public reporting of criminal conviction rates tied to forfeitures.

In the absence of that information, WBUR set out to compile the data. To evaluate the county’s record, WBUR analyzed all the Worcester County forfeitures in 2018, a year chosen to allow sufficient time for related criminal cases to have concluded. The analysis included the review of thousands of pages of records in several courts and included forfeitures from 396 seizures.

Among those, there were more than 90 instances where people lost money or cars, taken most often during traffic stops, frisks and home searches — even though there weren't related drug convictions or drug charges. Law enforcement still held onto the cash and property.

Civil forfeitures are big business in Worcester County, where Early has been the elected district attorney since 2006. His office brought in nearly $4 million in forfeitures in just the latest four years, from fiscal 2017 through 2020, according to analyses by the state’s trial court.

Where that money goes is notable. In almost all cases, the proceeds are split 50/50 between the Worcester County district attorney’s office and the local or state police department that handled the seizure. That’s legal in Massachusetts, but it’s a system rife with conflicts of interest because the offices confiscating the money also stand to benefit from it, lawyers and civil rights advocates say.

Early has been criticized by the state auditor for spending forfeiture funds on a Zamboni ice-clearing machine and tree-trimming equipment. Over the years, his office has posted photos on its website of Early handing out checks for “Drug Forfeiture Community Reinvestment,” to pay for baseball and softball fields or to support a cheerleading team.

District Attorney Joseph D. Early Jr. presents a check from his county's drug forfeiture funds to Gardner Youth Baseball & Softball League to help improve their field. The league’s president, Kevin Robillard, accepted the check and they were joined by former Gardner Mayor Mark Hawke and state Rep. Jonathan Zlotnik. (Photo published on Worcester County District Attorney's Office website in 2016)

Early said he’s proud that his office has spent large sums of confiscated money on youth programs and drug prevention. “I love taking the drug dealers’ money. I love taking their lifeblood and putting it back into the community,” he said.

But WBUR’s analysis shows many of the people who lose money to Early’s office are not charged with dealing drugs.

Preying On The Poor

While the system has evolved into a significant revenue source, it started as a remnant of old English law. Civil forfeiture was pioneered at the federal level in 1970, touted as a tool in the war on drugs. The idea was to financially weaken big drug dealers and gangs by allowing police to take their money, property and drugs.

When the drug forfeiture law was adopted in Massachusetts in 1971, it required prosecutors to show a "preponderance of evidence" to support a seizure. Specifically, they had to establish that seized property or money was "more likely than not" involved in a drug crime. In 1989, Massachusetts lawmakers eased the rules to the current "probable cause" standard, the least demanding burden of proof in the American legal system. Massachusetts was not alone at the time, but it's the only state that in the intervening years has not reinstated a higher level of proof, according to an Institute for Justice report.

Police in this state can take money or belongings based merely on the reasonable suspicion that someone is involved in drug activity. Often police cite people appearing nervous, carrying rolls of $20 bills or traveling on what officers call a “well-known route used by drug traffickers” as the justification for seizure.

The U.S. Supreme Court in 2019 ruled unanimously on a civil forfeiture case, Timbs v. Indiana, that the state’s forfeiture of a man’s $42,000 Range Rover was unconstitutional. The court found that confiscating his vehicle was “grossly disproportionate” to the seriousness of his crime — the sale of $225 worth of heroin — and violated the Eighth Amendment protection from excessive government fines, as well as the 14th Amendment right to due process.

The Timbs ruling was cited this year in a case involving a Massachusetts woman whose car was confiscated for six years after police suspected it was connected to drug trafficking charges her son was facing. The son died before prosecutors finished trying the case. The woman faced no charges. The Berkshire County district attorney finally released the vehicle, after a high-profile legal group stepped in to sue the DA on her behalf.

In other New England states, people have a better chance of getting their belongings back from seizures.

Connecticut, New Hampshire and Vermont all require some form of criminal conviction for the forfeiture of property. And in Rhode Island, prosecutors must meet the preponderance-of-evidence standard. In federal cases too, the law has changed from probable cause to a higher standard of proof; the government must show that property is “likely” connected to a crime in order to forfeit it.

And Maine has gone a step further. It recently passed a bill to abolish civil forfeiture, becoming the fourth state in the nation to do so. The law now requires a criminal conviction before law enforcement can permanently take property.

The Massachusetts forfeiture law was originally aimed at breaking up large drug rings. However, WBUR's analysis found that more than half of seizures in recent Worcester County forfeiture cases were for less than $500. (Sophie Morse for WBUR)

The Massachusetts forfeiture law was originally intended to go after people involved in large drug rings. But Rulli, the University of Pennsylvania professor, said there has been a shift in how forfeiture is deployed at the street level, targeting people involved in petty crimes or marijuana sales, or no crime at all.

“This became a very lucrative area of revenue. And as a result it got applied to ordinary folks,” rather than focusing solely on drug kingpins, he said.

WBUR’s analysis of Worcester County forfeitures from 2017 through 2019 found that more than half of the seizures in these cases were for less than $500. In one incident, Fitchburg police seized $10 from a man listed as homeless. In another, Sturbridge police took $10 from a 14-year-old boy.

State Rep. Jay Livingstone, who represents the Back Bay, Beacon Hill and parts of Cambridge, is a former assistant district attorney for Middlesex County. He said civil forfeiture tends to disproportionately affect poor people, and he’s witnessed law enforcement “taking small amounts of money from people that really can’t afford it.”

After filing two unsuccessful measures to overhaul the forfeiture system in Massachusetts, Livingstone now has a third reform measure pending in the Legislature’s Joint Committee on the Judiciary that would require a conviction and provide legal counsel to the indigent.

Navigating the system to reclaim money is an enormous challenge, in part because forfeiture falls into a complicated, two-pronged legal track in Massachusetts.

First, police seize money under suspicion of drug activity and pass the matter on to the district attorney. The DA’s office, if it decides to file a criminal drug charge, generally does so within a few weeks in district court.

Separately, the DA files a forfeiture case in a different, civil, court system — typically the state Superior Court. The civil and criminal cases are not linked in court databases, adding to the complexity of navigating the system and making oversight of the outcomes difficult.

Beyond the opaque court process, those in charge of civil forfeitures — district attorneys and police — face little public accountability when it comes to seizing money from residents, and what happens to the confiscated cash and property.

The only public accounting of how the money is spent is the information DAs now must report to the state treasurer’s office, as part of the Legislature’s 2018 criminal justice reform. But those reports don’t disclose all the spending and are not itemized beyond broad categories, such as “other law enforcement purposes.”

A state commission formed in 2019 to study the forfeiture system had little luck obtaining more data from the DAs. During commission meetings, including one in June, officials said DAs had ignored their requests, as well as questions about how they collect and spend confiscated funds.

The commission recently released its recommendations to the Legislature, proposing a number of changes to check the power of law enforcement. Chief among them are raising the burden of proof for forfeitures and removing the financial incentive to keep seized assets, by requiring that the money be sent to the state’s general fund. The proposal also seeks stronger reporting to the state and a set minimum amount of money eligible for forfeiture.

Early said he has now adopted a minimum of $1,000 for civil forfeitures, a policy he updated a day after receiving WBUR’s questions and a week after the commission issued its report. But he defended past forfeitures of small sums, saying any alleged drug money is bad for neighborhoods.

“If I can get $5 or $10, $20, $50, $200, $50,000 or $100,000, it’s all going into my prevention efforts,” Early said.

Some of the commission’s proposed changes are likely to face opposition. Many in law enforcement argue that civil asset forfeiture helps take down major drug traffickers, stripping criminals of resources and destabilizing organized crime. And officers do find drugs in many instances, as they did in a 2018 case where Worcester police, along with members of a drug task force, busted a heroin distribution ring and seized $30,414 in cash.

Prosecutors in Massachusetts are able to keep seized assets using a lower burden of proof than in any other state. (Sophie Morse for WBUR)

Norfolk County District Attorney Michael Morrissey represented all DAs on the state commission. In one of its recent meetings, he said his office uses forfeiture funds to pay for extraditions and warrants. In a subsequent interview, Morrissey said he believes some of the commission’s proposed changes are reasonable, but warned that if those funds were to dry up, the Legislature “should start thinking about how much money they’re going to have to backfill my budget.”

Early said he relies on confiscated money to pay for investigations into drugs and human trafficking, for expert witnesses and witness protection. Without that money, he said, it’s possible his office would need the state to increase his budget.

He argued that there’s no conflict of interest in law enforcement keeping confiscated funds. As for raising the burden of proof to a preponderance of evidence, Early now says he’s for it.

In The DA’s Hands

None of the proposed reforms address how long a DA can hold seized funds. Money confiscated by police sits in limbo until the DA files a forfeiture case in civil court. Early’s office has amassed hundreds of thousands of dollars by routinely waiting years to file civil forfeiture actions, without notifying individuals of the status of their money and effectively holding it hostage until court proceedings commence. This includes the 500 cases WBUR found that lingered for more than a decade.

Early blamed police for being slow at times to turn over seized cash to his office, but did not name specific departments. He also said it’s his office’s practice to wait for criminal cases to conclude before filing civil forfeitures. That doesn’t explain the years-long delays, however.