Civil Asset Forfeiture Commission Convenes, with BBA at the Table

The State Legislature has started taking a serious look at state policies and practices around the issue of civil asset forfeiture, with a newly-established commission designed to gather data on the practice statewide and then submit recommendations for potential reforms.  The recently-enacted state budget for the current fiscal year creates the 21-member commission in Section 90, with a tight—and, shall we say, optimistic—deadline of December 31 to present the Legislature with “a report of its study and any recommendations, together with any draft legislation necessary to carry those recommendations into effect”.

This is an issue we’ve been keeping an eye on, as it attracted attention in the media (including an episode of John Oliver’s TV show), from think tanks of various stripes (one of which gave Massachusetts an F grade for its current forfeiture laws), and from legislators sponsoring reform-minded bills.  The concerns mostly center on the low standard of proof in Massachusetts as compared with other states, limited reporting requirements, and incentives that arguably encourage its use and perhaps skew law-enforcement priorities.  We were pleased that the budget language carves out a seat for the BBA on the new panel, and former President Carol Starkey has been appointed to represent us there.

The commission met for the first time earlier this month, with four further meetings scheduled for the rest of this year ahead of the deadline.  Perhaps not coincidentally, the Judiciary Committee—whose co-chairs, Sen. Jamie Eldridge and Rep. Claire Cronin also head the commission—held a hearing the following day with an agenda that included five bills dealing with civil asset forfeiture.

The commission is tasked with:

  • an evaluation of the standard of proof required for law enforcement to establish that property seized is related to a crime, as compared to the standard imposed in other states;
  • a review of current documentation and reporting obligations for law enforcement, including the extent to which law enforcement records whether the property’s owner was charged with or convicted of a crime, and any recommendations for enhanced or additional reporting requirements;
  • an analysis of the scope of civil asset forfeiture, including an estimate of the total value of assets seized annually, the average value of assets seized in a case and a breakdown by percentage of the underlying offenses giving rise to the forfeiture;
  • an examination of how civil asset forfeiture proceeds are allocated and spent;
  • an evaluation of the process by which property owners may challenge a seizure, including the percentage of seizure proceedings challenged annually, the percentage of successful challenges and the average cost of bringing a challenge;
  • an analysis of any racial or socioeconomic disparities in the application of civil asset forfeiture laws; and
  • a review of best practices undertaken in other states.

It bears mentioning, as well, that Section 101 of the state budget creates another commission on which the BBA has a seat, albeit one that has a longer timeline (reporting deadline: September 1, 2020) and hasn’t yet gotten up and running.  This one (to which a BBA representative has not yet been appointed) will, in the words of the enacting language, “conduct a comprehensive study to evaluate and make recommendations regarding the appropriate level of funding for the department of correction and each sheriff’s department.” 

We will use this space to keep you updated as each of these commissions progress.

—Michael Avitzur
Government Relations Director
Boston Bar Association