In Massachusetts, Malinda Harris argues, civil asset forfeiture routinely violates the right to due process.
JACOB SULLUM | 3.2.2021 5:35 PM
On March 4, 2015, police in Berkshire County, Massachusetts, seized Malinda Harris’ 2011 Infiniti G37 because her son, Trevice, was suspected of selling drugs. Although Harris had let Trevice borrow her car, the cops never alleged that he used it for drug dealing or that she knew about her son’s illegal activity. Harris heard nothing more about her purloined property until October 2020, more than five years after the seizure, when she was served with a civil forfeiture complaint that had been prepared the previous January.
In a state court motion filed last week, Harris argues that the unconscionable delay in giving her a chance to recover her car was a due process violation that by itself justifies its immediate return. Massachusetts invites such abuse, she says, because its civil forfeiture law “does not provide any deadline [by] which the Commonwealth is required to initiate forfeiture proceedings.” The Phoenix-based Goldwater Institute, which represents Harris, cites several other constitutionally questionable aspects of the state’s law, which epitomizes everything that is wrong with the practice of confiscating property by alleging that it is connected to crime, even when the owner has done nothing illegal.
According to the Institute for Justice, Massachusetts “has the worst civil forfeiture laws in the country.” Massachusetts is the only state to earn an F in the latest edition of the organization’s Policing for Profit report. It is not hard to see why.
As in most states, police in Massachusetts can seize property when they have “probable cause” to believe it was used for drug trafficking. But once they have met that minimal threshold, the burden of proof shifts to the owner, who must show that the property is not subject to forfeiture.
In this case, the government has offered no evidence that Harris’ son, who left town after the seizure and was murdered three years later, used her car for drug dealing. While the forfeiture affidavit alleges that three other cars seized by police were used to transport drugs, Goldwater Institute senior attorney Stephen Silverman notes, “it contains no such allegations with respect to Harris’ Infiniti.” It says only that police found the title to the Infiniti in Trevice’s bedroom and, upon searching the car, found “occupancy papers,” two parking tickets, and a “Jiffy Lube receipt.” That evidence, Silverman says, “is plainly insufficient to establish probable cause for the forfeiture.”
Massachusetts allows innocent owners to seek the return of their assets unless they “knew or should have known that such conveyance or real property was used in and for the business of unlawfully manufacturing, dispensing, or distributing controlled substances.” But it requires owners to prove their innocence, the reverse of the presumption that applies in criminal cases.
Silverman says that rule violates due process. And since the government can keep Harris’ property even though she “has has no culpability at all,” he argues, the state’s legalized larceny also violates the Eighth Amendment’s Excessive Fines Clause. “Punishment must be proportional to the property owner’s wrongdoing,” he says. “In the case of an innocent owner, any punishment would be disproportionate.”
Even attempting to recover seized property requires hiring a lawyer, which costs thousands of dollars, a bill that in this case easily could have exceeded the market value of Harris’ car. Since the Goldwater Institute is representing her for free, she does not have to worry about that obstacle, but most forfeiture victims are not so lucky. Since the value of seized property is typically less than the cost of trying to get it back, it usually makes more sense just to give up.
Even when a Massachusetts property owner can afford a lawyer, he cannot do anything until the government notifies him that it is proceeding with the forfeiture, which in this case happened 68 months after the seizure. “The Commonwealth has offered no justification for why it took almost five years to file this suit or another 10 months to serve it,” Silverman says. “This lengthy, unexplained delay deprived Harris of due process and requires that the Complaint be dismissed.”
More generally, Massachusetts “does not dictate that owners be provided prompt,
post-seizure hearings to challenge, among other things, the validity of the seizure and the continued retention of the property pending the forfeiture proceeding’s final outcome,” Silverman says. “This omission creates too big of a risk of erroneous deprivation.”
And did I mention that the Berkshire County Law Enforcement Task Force, which seized Harris’ Infiniti, and the Berkshire County District Attorney’s Office, which is pursuing the forfeiture, get to keep all the proceeds from selling the car? That financial incentive, Silverman says, also violates due process, because it creates a “temptation to overzealously pursue forfeiture cases.” It also encourages police to prioritize profit above public safety.
If police and prosecutors did not have a financial stake in civil forfeiture, they probably would be much less resistant to changes that threaten to derail the money train. Although the Bay State’s especially odious forfeiture racket has provoked criticism for years, opposition from law enforcement agencies so far has doomed all reform efforts.
“Civil asset forfeiture abuse will only stop when people stand up to and fight against these abuses,” Silverman says. “I admire Malinda’s courage and strength and look forward to Malinda getting her day in court.”
