Proposal nudges sheriffs into civil asset forfeiture

Baker calls it accounting move, but Cabral wants to block it

THE BAKER ADMINISTRATION and House leaders seem intent on giving the state’s sheriffs a more formal role in accessing civil asset forfeiture money – the controversial bounty that law enforcement officials take from suspected criminals.

State law calls for forfeiture funds to be split evenly between police and prosecutors, but occasionally some of the funds have been shared with at least one sheriff. The budgets proposed by Gov. Charlie Baker and House leaders contain a provision that would set up trusts to collect those funds. Baker officials portray the budget provision as an accounting change, but some are wary of what it might portend.

Rep. Antonio Cabral, a New Bedford Democrat who thinks that some of the forfeiture funds should go towards substance abuse treatment, said sheriffs should not be taking part in the system at all and filed an amendment to eliminate the budget provision.

“They’re not involved in any of that, so why would we need to amend that section of the law to include sheriffs?” Cabral asked ahead of the House budget deliberations that begin today. The primary responsibility of sheriffs is to oversee jails and houses of correction, but they can also play a role in other law enforcement activities.

Rahsaan Hall, director of the racial justice program for the American Civil Liberties Union of Massachusetts, said giving sheriffs an incentive to go after suspects’ property could lead to bad consequences.

“The more agencies that have a stake in the proceeds from civil asset forfeiture, the greater the concern is that additional agencies will be involved in policing for profit,” Hall said.

Drug case forfeiture is the most prominent type of forfeiture in Massachusetts. (There is also a somewhat different forfeiture statute that can be employed in cases of human trafficking, with proceeds going toward a Victims of Human Trafficking Trust Fund.) The drug forfeiture statute says that the assets are to be divided evenly between prosecutors and city, town, or state police departments – not sheriffs, whose jurisdiction is at the county level. The budget rider would do nothing to alter that.

Yet at least one sheriff department has occasionally benefited from assets forfeited through a state drug investigation. Bristol County District Attorney Thomas Quinn’s office has on rare occasions provided Bristol County Sheriff Tom Hodgson’s office with some forfeited proceeds, both offices acknowledged.

“Although extremely rare, the Bristol County Sheriff’s Department has received a portion of civil asset forfeiture funds when they were involved in investigation that resulted in the lawful seizure of illegally obtained money from drug dealing arrests. The sheriff’s office is a law enforcement agency with officers who can and do participate in drug dealing investigations. They are therefore entitled to a portion of the funds seized when they are involved in an investigation that results in a lawful seizure of forfeited funds,” the DA’s spokesman, Gregg Miliote, said in a statement. “It is also important to note that the district attorney’s office, by statute, can utilize civil asset forfeiture money for any law enforcement purpose. This would include providing a portion of seized funds to a law enforcement agency such as the sheriff’s office.”

In 2016, the Bristol sheriff’s office received less than $4,500 in forfeiture funding through the DA from a drug case that the office worked on, according to the sheriff’s spokesman.

Spokeswomen for Attorney General Maura Healey and Middlesex District Attorney Marian Ryan said that their offices do not provide forfeiture money to sheriffs, and a spokesman for Peter Koutoujian, sheriff of Middlesex County, which is the state’s most populous, said that department received no state drug case civil asset forfeiture funding dating back to July 2017. The Middlesex and Bristol sheriffs have both received some recent funding from federal forfeiture.

The Baker administration describes the budget provision as an accounting change that would represent best practices under state finance law.

Others want the law that enables prosecutors to take millions of dollars from criminal suspects to undergo a more extensive overhaul.

The civil asset forfeiture law allows the attorney general and district attorney to petition a court for the forfeiture of property seized in the course of a criminal investigation involving controlled substances – for instance, a car used in drug trafficking or cash earmarked for illegal narcotic purchases. The standard of proof that judges use to determine civil asset forfeiture cases is the same as other civil cases and not as stringent as the beyond-a-reasonable-doubt standard used in criminal trials, according to the attorney general’s office.

The forfeiture proceedings in civil court can proceed even if the prosecutor has dropped the criminal charges, putting the onus on property owners to demonstrate their innocence or ignorance of the property’s involvement in a crime, according to Lee McGrath, senior legislative counsel for the Institute for Justice. Those are some factors that led the liberty-minded institute to conclude Massachusetts, along with North Dakota, has the “worst civil forfeiture laws in the country.”

The Institute knocked the fact that Massachusetts police and prosecutors keep 100 percent of the proceeds, giving them “considerable incentive to seize property.” The institute also said “very poor” reporting requirements have made it difficult to assess how much forfeiture occurs. Using public records, the institute estimated that Massachusetts law enforcement obtained forfeiture of an average of $9.3 million annually between 2000 and 2014.

There has been past controversy over how law enforcement agencies spend forfeited funds. A 2013 review led by Auditor Suzanne Bump determined that Worcester County District Attorney Joseph Early’s office took in nearly $800,000 over a 15-month span, and spent money from that fund on conferences and donations to churches and other organizations, in addition to expenditures on investigations. Most notably, the prosecutors’ office spent nearly $1,000 on a 50-gallon Zamboni for its diversion program. The auditors were unable to find the ice-surfacing machine or determine its law enforcement purpose.

Last year’s criminal justice reform law created new requirements for prosecutors to create annual reports, which are public, documenting the amount of assets seized and held in forfeiture trust funds, along with some information about the disbursement of that money.

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Andy Metzger

Reporter, CommonWealth magazine

About Andy Metzger

Andy Metzger joined CommonWealth Magazine as a reporter in January 2019. He has covered news in Massachusetts since 2007. For more than six years starting in May 2012 he wrote about state politics and government for the State House News Service.  At the News Service, he followed three criminal trials from opening statements to verdicts, tracked bills through the flumes and eddies of the Legislature, and sounded out the governor’s point of view on a host of issues – from the proposed Olympics bid to federal politics.

Before that, Metzger worked at the Chelmsford Independent, The Arlington Advocate, the Somerville Journal and the Cambridge Chronicle, weekly community newspapers that cover an array of local topics. Metzger graduated from UMass Boston in 2006. In addition to his written journalism, Metzger produced a work of illustrated journalism about Gov. Charlie Baker’s record regarding the MBTA. He lives in Somerville and commutes mainly by bicycle.

About Andy Metzger

Andy Metzger joined CommonWealth Magazine as a reporter in January 2019. He has covered news in Massachusetts since 2007. For more than six years starting in May 2012 he wrote about state politics and government for the State House News Service.  At the News Service, he followed three criminal trials from opening statements to verdicts, tracked bills through the flumes and eddies of the Legislature, and sounded out the governor’s point of view on a host of issues – from the proposed Olympics bid to federal politics.

Before that, Metzger worked at the Chelmsford Independent, The Arlington Advocate, the Somerville Journal and the Cambridge Chronicle, weekly community newspapers that cover an array of local topics. Metzger graduated from UMass Boston in 2006. In addition to his written journalism, Metzger produced a work of illustrated journalism about Gov. Charlie Baker’s record regarding the MBTA. He lives in Somerville and commutes mainly by bicycle.

Those bare bones reports show all the state’s district attorneys reported a total of $4.9 million in assets. The asset amounts do not correspond to the size of the jurisdiction. At $837,914, Bristol prosecutors took in the most, followed by the $703,057 taken by Hampden, and $693,571. In Middlesex, Ryan took in $395,379.

The prosecutors’ reports do not show how much police departments obtained through civil asset forfeiture.