This Week in Civil Forfeiture Outrages

Not for the first time, I came across so many accounts of civil forfeiture outrages this week that I couldn’t narrow them down to just one or two. Here are three:

1. WBUR, Boston’s National Public Radio station, recently produced an excellent overview of the civil forfeiture system in Massachusetts. The story begins with an evocative anecdote about a victim of forfeiture, Devantee Jones-Bernier. Some years ago, when Jones-Bernier was hanging out at a friend’s apartment, the police banged on the door looking for drugs. They found marijuana in the apartment, but all they found on Jones-Bernier was $95 and an iPhone. Nevertheless, the cops took both the cash and the phone. He was then charged with a drug offense, as were seven other people in the apartment. Later on, the charges were dismissed against seven of the eight, including Jones-Bernier.

The police never gave Jones-Bernier his money or his phone back, though. Four years later, the district attorney “notified” him that the office intended to keep his money and his phone unless he responded within 20 days. To be clear, they didn’t really notify him—that is, they didn’t call him or mail him a letter. Rather, they “notified” him only in a technical sense, by publishing his name in a newspaper ad in tiny type, next to more than 100 other names, in a notice that supposedly let him know about the impending forfeiture. Unsurprisingly, Jones-Bernier never saw the ad; he permanently lost his iPhone and his money.

WBUR’s account of the morass that is civil forfeiture in Massachusetts contains many other disturbing details:WBUR investigated seizures in Worcester County; it found hundreds of cases of seized property that had been in the custody of its district attorney for a decade or more before officials had carried out the newspaper “notification” procedure.

Over half of the Worcester County seizures from 2017 to 2019 were for less than $500. In one case, Fitchburg police took $10 from a homeless man; in another case, Sturbridge police took $10 from a 14-year-old boy.

The Worcester County district attorney was criticized by the state auditor for using forfeiture funds to support a cheerleading team and to buy tree-trimming equipment and a Zamboni ice-clearing machine. Although such expenditures are no doubt appreciated by (for example) the users of public ice rinks, they are difficult to square with the state’s mandate that forfeiture funds may only be used for law enforcement purposes.

Massachusetts’ civil seizure rules are more confiscation-friendly than those of any other state. In order for seizure to occur, law enforcement agents only need probable cause—the least demanding burden of proof in our legal system—to confiscate property. In the 49 other states, law enforcement agents must meet a significantly more demanding standard; they must be able to show that it’s more likely than not that the seized property is involved in a crime.

2. Charles Oliver of Reason highlighted a fascinating account of a Kentucky constable who was recently convicted of abusing his authority by planting drugs on suspects. I am generally skeptical of claims I hear about police manufacturing crimes by innocent people (the officer who decides to boost arrest statistics by planting fraudulent evidence would fail not only a moral test, but also a cost-benefit test), but the story makes sense in the context of the perverse incentives of civil forfeiture.

Former Pulaski County Constable Michael Wallace was sentenced to 11 years in prison after being convicted of planting drugs on suspects. Constables aren’t paid a salary, but Oliver’s story suggests that Wallace’s actions were motivated by the prospect of keeping a share of the property he seized during his investigations.

“Wallace lied to justify searches and arrests. In one case, Somerset police officers who went to back up Wallace at a traffic stop testified they searched the car and found no drugs, but that Wallace then went to the car, spent just a moment at the driver’s door and then walked back holding a bottle that contained meth.”

An FBI sting brought Wallace down. After Wallace encountered an undercover FBI agent posing as a drug dealer, he not only signed a false certification alleging criminal conduct, but also lied when writing out an application for a search warrant for the agent’s hotel room.

FBI agents found several grams of methamphetamine at Wallace’s house; prosecutors argued that he kept the methamphetamine handy so that it could be planted on suspects to support spurious charges.

3. Finally, the seizure of nearly $166,000 on a Kansas highway of proceeds from Missouri marijuana sales raises some questions about the priorities and goals of Kansas law enforcement authorities.

On May 16, a deputy sheriff in Kansas directed a van to pull over for a traffic violation. The van’s driver told the deputy sheriff that she had been tasked to transport cash from marijuana dispensaries in Missouri to a credit union in Colorado. Both states have thriving and legal medical marijuana industries.

One day later, after the Drug Enforcement Administration surveilled the driver visiting multiple marijuana businesses in Missouri, the same deputy sheriff pulled over the same van. This time, law enforcement officers seized five bags of cash; federal prosecutors argued that the money was subject to forfeiture, alleging that it came from the illegal manufacturing and distribution of drugs.

The company employing the van driver has just filed a brief arguing that the driver’s conduct was legal under Missouri law and “tacitly or affirmatively allowed” by the federal government.

Even though the cash was seized, the van’s driver has never been charged with any crimes. It’s almost as if the motivation of the government in this case had nothing to do with drug enforcement at all!