This Week’s Civil Forfeiture Outrage (Eighth in a Series)

I wish it were harder to find forfeiture outrages to write about, but they keep popping up. This week, I focus on Massachusetts.

Here’s a news story out of Holyoke, Massachusetts, that features Natasha Custodio, a victim of civil asset seizure. Her troubles began when she bailed out an acquaintance in criminal jeopardy, Arthur Estabrook, with $24,850. Eight months after Estabrook was released on bail, Custodio returned to the court where she had deposited the money so that she could get her $24,850 back. After she received it, she drove to the bank, deposited the check, and drove home—where she found three police officers who demanded that she give them the money, saying that Estabrook’s bail had been revoked and that the $24,850 “belonged to the case.”

The officers told Custodio that she would be arrested if she did not give them the money immediately. They escorted her to the bank and ordered her to withdraw the funds in cash and hand it to them. When the bank declined to comply with her request for cash disbursement, the officers told Custodio to get the deposited check back from the bank and to endorse it over to the city’s police department.

Oddly, neither Custodio’s name nor the $24,850 appear in any of the local district attorney’s filings for civil asset forfeiture. The entire matter is puzzling, especially because the obligations of a bail funder are typically satisfied once the alleged offender has been delivered into custody. Ultimately, Custodio sued for the return of the money; two months later, the city agreed to accept a judgment against it and gave Custodio $26,000.

Did the officers really think that Custodio had committed a crime? (From the story, it’s difficult to tell what the crime might be.) Or was their conduct driven by the desire to pad their own office’s budget? It’s unclear.

Forfeiture is a cheap way to raise revenue for Massachusetts governments, although it can be quite expensive for residents of the Bay State: Massachusetts is the only state in the union where probable cause to believe that criminal conduct has occurred is enough for forfeiture. In contrast, most states require a significantly higher standard of proof for forfeiture. Typically, forfeiture requires evidence that it’s more likely than not that criminal conduct has taken place.

That’s just one of many disturbing aspects of the Massachusetts forfeiture regime that this Boston Globe editorial describes. The editorial begins with an anecdote about another victim of seizure, Malinda Harris. One day, county police showed up at Harris’s home and demanded the keys to her Infiniti, telling her that her son Trevice was suspected of dealing drugs and “warning her not to get involved with her son’s case.” The timeline here deserves emphasis:

The year Harris’s car was confiscated: 2015.
The year Harris was served with a forfeiture complaint to trigger the process that would grant ownership of her car to the government: 2020.
The year that the government provided any evidence that Harris’s car had any involvement in crime: never.
In other words, Harris’s car was impounded for five years—stuck in bureaucratic limbo—before the government ever gave her notice that it planned to take it permanently. In the interim, her son Trevice was murdered. Again, no evidence was ever supplied to demonstrate any relationship between her car and any criminality; the most one could say is that her son Trevice borrowed the car from time to time. Eventually, Harris sued (she was represented by Arizona’s Goldwater Institute), which encouraged the district attorney’s office to return her car rapidly.

Massachusetts’ reported take over the last three years of civil forfeiture is roughly $20 million. That seized property largely supplements the budgets of law enforcement bureaucracies without any public oversight—encouraging, among other things, the purchase of essentially unregulated high-tech surveillance devices by Massachusetts police departments. Regrettably, Custodio’s and Harris’s victories in getting their property back from the government are not typical. As the Globe editorial notes:

The process of getting the cash or property back is so onerous that about 80 percent of the owners of confiscated assets never make a legal claim for them—many because they can’t afford a lawyer to do so. Often the cost of a lawyer would exceed the amount of the forfeiture. A report by the Institute for Justice puts the median value of forfeitures at about $1,300. …

A report prepared by the state’s trial court system for fiscal 2017-2019 found 3,047 civil asset forfeitures, totaling $6.2 million, $7.5 million, and $6.5 million, respectively. The bulk of those seizures (76 percent) were cash. Motor vehicles, 609 of them, made up 15 percent of seizures, and the rest (9 percent) were a hodge-podge of iPhones, digital tablets, computers, scooters, the occasional Rolex watch, and, somewhat mysteriously, a “shoe collection.”

The editorial concludes:

Currently here in Massachusetts, civil asset forfeiture doesn’t discriminate—it punishes the innocent along with the guilty. It gives police departments a ready slush fund and an added incentive to keep seizing more assets. It’s a perverse system that cries out to be ended.