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Reforming Civil Asset Forfeiture:Ensuring Fairness and Due Process for

Property Owners in Massachusetts

CHARLES BASLER

ABSTRACT

According to the Supreme Court, governments core function is toprovide for the security of the individual and of his property. Despite

such pronouncements, many jurisdictions in the United States operateunder statutory frameworks that, rather than provide any form of securityfor the individual, appear to actively undermine property rights. Motoristsare stopped and stripped of cash and valuables, homes are lost, and yet thevast majority of civil forfeiture cases involve individuals who are nevereven charged with a crime. The abuse of civil asset forfeiture has not goneunnoticed, and in 2000, Congress passed the Civil Asset Forfeiture ReformAct (CAFRA) which sought to correct many of the most glaring problemswith the federal forfeiture system. A number of states have followed suit,reforming civil forfeiture systems in favor of individual property rights.Massachusetts, however, has not been a part of this trend and the state scivil asset forfeiture statute must be reformed to ensure that property

ownersrights are respected.This Note argues that Massachusetts current drug forfeiture law is

unfair to property owners and puts them at risk of erroneous deprivationsof private property. Massachusetts forfeiture law allows law enforcement,including both police departments and district attorneysoffices, to retainthe proceeds from seized property. This creates a structural conflict ofinterest which provides police with an incentive to favor revenuegeneration over law enforcement. Prosecutors are allowed to initiateforfeiture proceedings while offering virtually no evidence connecting the

Juris Doctor, summa cum laude, New England Law | Boston (2015). B.A. cum laude,

Philosophy and Political Science, Boston University (2006). I would like to thank the entire

New England Law Review staff for their support and hard work in preparing this Note for

publication.


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property to illegal activity, while the propertys owner bears the burden ofproving the property is not subject to forfeiture. This leaves Massachusettsproperty owners largely guilty until proven innocent. The states statutory

framework is based on obsolete federal law which has since undergonesignificant reforms in an attempt to address some of these concerns. Inorder to ensure property owners are treated fairly, Massachusetts mustupdate its civil forfeiture statute or, at a minimum, implement CAFRA score reforms.

INTRODUCTION

ccording to the Supreme Court, governments core function is toprovide for the security of the individual and of his property.1Despite such pronouncements, many jurisdictions in the United

States operate under statutory frameworks that, rather than provide anyform of security for the individual, appear to actively undermine propertyrights.2Motorists are stopped and stripped of cash and valuables, 3homesare lost,4 and yet the vast majority of civil forfeiture cases involveindividuals who are never even charged with a crime. 5Civil asset forfeiturebegan as a means of ensuring that wrongdoers do not profit from illegalactivity, but over time has morphed into a system that often results in moreharm than good, targeting as many innocent property owners as criminals.6

1 Illinois v. Gates, 462 U.S. 213, 237 (1983) (quoting Miranda v. Arizona, 384 U.S. 436, 539

(1966) (White, J., dissenting)).2 See MARIAN R. WILLIAMS ET AL., POLICING FOR PROFIT: THE ABUSE OF CIVIL ASSET

FORFEITURE9 (2010), available athttp://www.ij.org/images/pdf_folder/other_pubs/

assetforfeituretoemail.pdf (describing modern civil asset forfeiture as one of the most serious

assaults on private property rights in the nation today).3 See, e.g., Commonwealth v. Eight Thousand Dollars in U.S. Currency, 20 Mass. L. Rptr.

103, 103 (Mass. Supp. 2005); Ted Balaker, Give Us Cash or Lose Your Kids and Face Felony

Charges: Dont Cops Have Better Things to Do?!, REASON(Nov. 14, 2013), http://reason.com/

reasontv/2013/11/14/give-us-cash-or-lose-your-kids-and-face.4 See, e.g., Radley Balko, Philadelphia Family Loses Home over a Single Drug Charge,

HUFFINGTON POST(Sept. 10, 2013, 12:13 PM), http://www.huffingtonpost.com/2013/09/10/

philadelphia-family-loses_n_3899905.html.5 See Kyla Dunn, Reining in Forfeiture: Common Sense Reform in the War on Drugs, FRONTLINE,

http://www.pbs.org/wgbh/pages/frontline/shows/drugs/special/forfeiture.html (last visited

Sept. 15, 2015).6 See Sarah Stillman, Taken, NEW YORKER(Aug. 12, 2013), http://www.newyorker.com/

magazine/2013/08/12/taken (But a system that proved successful at wringing profits from

drug cartels and white-collar fraudsters has also given rise to corruption and violations of

civil liberties.).

A


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2015 Massachuse tts Civi l Asse t Forf e itu re Reform 667

The abuse of civil asset forfeiture has not gone unnoticed, and in 2000,Congress passed the Civil Asset Forfeiture Reform Act (CAFRA).7ThroughCAFRA, Congress sought to correct many of the most glaring problems

with the federal forfeiture system.8

Numerous states have followed suit,and there appears to be a trend toward reforming civil forfeiture systems infavor of individual property rights.9Massachusetts, however, has not beena part of this trend and the state s civil asset forfeiture statute must bereformed to ensure that property ownersrights are respected.10

Massachusettscurrent drug forfeiture law is unfair to property ownersand puts them at risk of erroneous deprivations of private property.11Massachusetts forfeiture law allows law enforcement, including bothpolice departments and district attorneys offices, to retain the proceedsfrom seized property.12This creates a structural conflict of interest whichprovides police with an incentive to favor revenue generation over lawenforcement.13 Prosecutors are allowed to initiate forfeiture proceedings

while offering virtually no evidence connecting the property to illegalactivity, while the propertys owner bears the burden of proving theproperty is not subject to forfeiture.14This leaves Massachusetts propertyowners largely guilty until proven innocent.15 The states statutoryframework is based on obsolete federal law which has since undergonesignificant reforms in an attempt to address some of these concerns. 16 Inorder to ensure property owners are treated fairly, Massachusetts mustupdate its civil forfeiture statute or, at a minimum, implement CAFRA s

7 Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185, 114 Stat. 202 (codified as

amended at 8 U.S.C. 981 (2006)).8 See Barclay Thomas Johnson, Note, Restoring CivilityThe Civil Asset Forfeiture Reform Act

of 2000: Baby Steps Toward a More Civilized Forfeiture System, 35 IND. L. REV. 1045, 107072

(2002).9 See DEE R. EDGEWORTH, ASSET FORFEITURE: PRACTICE AND PROCEDURE IN STATE AND

FEDERAL COURTS 13843 (2d ed. 2008); Kasey L. Higgins, Article, Shiver Me Timbers! Civil

Asset Forfeiture: Crime Deterrent or Incentive for the Government to Pillage and Plunder Property?, 4

PHOENIX L.REV.771, 783 (2011).10 See infraPart VII.11 See infranotes207212 and accompanying text.12 MASS.GEN.LAWSch. 94C, 47(d) (2012).13 See infranotes129133 and accompanying text.14 See infraPart VI.B.15 Michael F. Alessio, From Exodus to Embarrassment: Civil Forfeiture Under the Drug Abuse

Prevention and Control Act, 48 SMUL.REV. 429, 438 & n.60 (1995); see alsoinfranotes198200and accompanying text.

16 See infraPart IV.B.


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core reforms.17

Part I of this Note provides a brief overview of civil asset forfeiture,including its history and use in the United States. Part II discusses some of

the major criticisms of civil forfeiture systems and the reforms that haveattempted to address these concerns, particularly CAFRA. Part III outlinescivil asset forfeiture in Massachusetts under the States ControlledSubstances Act. Part IV reviews recent criticism of the statute and arguesthat due to the lack of any substantive reforms the statute retains many ofthe troubling aspects of the pre-CAFRA federal forfeiture law on which it isbased. Part V argues that the statutes self-funding provision creates astructural conflict of interest by allowing law enforcement to retain theproceeds from seized property. This conflict can alter law enforcementpreferences and practices, and places property owners at risk of civilforfeiture abuse. Part VI argues that the statutes probable cause andburden shifting components put property owners at risk of erroneous

deprivations of private property. Part VII argues that Massachusettsforfeiture law should be reformed, using CAFRA as a guidepost, bydirecting the proceeds from seized property to the States general fund toincrease legislative and political accountability, and by placing the burdensquarely on the government to prove that property is subject to forfeiture.

I. Background

A. Civil Asset Forfeiture and its History in the United States

Civil asset forfeiture, often referred to as simply civil forfeiture, is asystem of seizing property considered to be forfeited by its owner due tothe propertys connection with wrongdoing.18 The system operates underthe legal fiction of personified propertythe property itself is the guiltyparty and the subject of an in rem proceeding.19 The intent behind civil

17 See supra notes 78 and accompanying text. There are fifty-two separate forfeiture

systems in the United Stateseach state has its own forfeiture system, as does the federal

government and Washington, D.C. SeeJason Snead & Andrew Kloster, Washington, D.C., Civil

Forfeiture Reform: A Model for the States, THE HERITAGE FOUND. (Dec. 5, 2014),

http://www.heritage.org/research/reports/2014/12/washington-dc-civil-forfeiture-reform-a-

model-for-the-states. This Note uses CAFRA as a benchmark for two reasons: First, this helps

to simplify the analysis (comparing fifty-two separate forfeiture systems would be overly

burdensome); and second, this Note argues that because the Massachusetts statute is based on

old federal law, both systems contain similar flaws that can be addressed by similar reforms.

See infra Part IV.

18 Catherine E. McCaw, Asset Forfeiture as a Form of Punishment: A Case for Integrating AssetForfeiture into Criminal Sentencing, 38 AM.J.CRIM.L.181, 191 (2011).

19 David Ross, Civil Forfeiture: A Fiction That Offends Due Process, 13 REGENT U.L.REV. 259,


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asset forfeiture is to prevent individuals from receiving a windfall fromtheir illegal activities.20Asset forfeiture is also intended to operate as a formof deterrence by making crime less profitable.21

Civil forfeiture proceeds only against the property in question andusually through civil in rem proceedings.22In a case of civil forfeiture, theproperty owners guilt or innocence is irrelevant.23 The property ownerneed not even be charged with a crime for their property to be seized andforfeit through civil forfeiture proceedings.24 In fact, the propertysconnection to illegal activity may be the result of a third-partyswrongdoing and have no nexus to the owners conduct.25Civil forfeituremust be distinguished from criminal forfeiture.26 Criminal forfeiture is asystem of punishing criminal defendants.27This form of forfeiture proceedsas part of the governments case against a defendant, and property is notforfeit unless the defendant is found guilty of a crime.28

Forfeiture of property as a form of punishment has ancient roots, and

can be traced to Biblical and pre-Judeo-Christian practices.29

However,forfeiture in the context of the American legal tradition can be more readilytraced to English law.30English law allowed for forfeiture in three contexts:deodand;31 forfeiture following conviction of treason or a felony; and

260 (2001); seeAustin v. United States, 509 U.S. 602, 61516 (1993).20 Higgins, supranote9,at 77374.21 McCaw, supranote18,at 197.22 Ross, supranote19.23 See Colero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683 (1974) (Despite this

proliferation of forfeiture enactments, the innocence of the owner of property subject to

forfeiture has almost uniformly been rejected as a defense.).24 Ross, supranote19;Dunn, supranote5.25 See Johnson, supranote8, at 1054 ([T]he property of innocent owners [can] be forfeit[]

based on third-party conduct that the owner did not know of and/or could not reasonably

foresee.).26 See McCaw, supra note18, at 19597 (comparing civil and criminal forfeiture, and the

advantages and disadvantages of each).27 Id.at 193.28 Melissa A. Rolland, Comment, Forfeiture Law, the Eighth Amendments Excessive Fines

Clause, and United States v. Bajakajian, 74 NOTRE DAME L.REV. 1371, 1374 (1999).29 Colero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 681 (1974). The precise

historical origins of asset forfeiture are beyond the scope of this Note. For a more in-depth

discussion of the history of forfeiture and its connection to deodand and English law, see

Tamara R. Piety, Comment, Scorched Earth: How the Expansion of Civil Forfeiture Doctrine Has

Laid Waste to Due Process, 45 U. MIAMI L.REV. 911, 92842 (1991).

30 SeeAustin v. United States, 509 U.S. 602, 611 (1993); Colero-Toledo, 416 U.S. at 68083.31 Under the medieval practice of deodand, the value of property responsible for directly or

indirectly causing the death of a kings subject was forfeited to the crown as punishment.


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statutory forfeiture.32Statutory forfeiture, which required the forfeiture ofproperty used in connection with violation of certain statutes, was the formof forfeiture carried into American law.33 Admiralty law provided the

foundation for civil forfeiture in the United States,34

with statutes enactedas early as the First Congress.35 Forfeiture of ships through in remproceedings was used as a means to enforce customs laws and combatpiracy.36 This practice of punishing property used in connection withstatutory violations continues today and has expanded well beyond cargoships and privateering.37

B. Modern Civil Asset Forfeiture and the War on Drugs

1. The Expansion of Federal Forfeiture

Federal forfeiture law quickly expanded considerably beyond itshumble beginnings in customs and admiralty law. 38 While civil assetforfeiture can occur in a variety of contexts,39the system is most commonlyemployed today in the war on drugs.40 In fact, the expansion of federal

Piety, supranote29,at 92829.32Austin, 509 U.S. at 611; Mary M. Cheh, Can Something This Easy, Quick, and Profitable Also

Be Fair? Runaway Civil Forfeiture Stumbles on the Constitution, 39 N.Y.L.SCH.L.REV. 1, 29 (1994).33Austin, 509 U.S. at 61213; seeColero-Toledo, 416 U.S. at 68083 (discussing the application

of forfeiture statutes by colonial-era courts); Johnson, supranote8.34 Piety, supranote29,at 935 & n.109 (citing forfeiture under admiralty cases in American

courts as early as 1796).35Austin, 509 U.S. at 613; see alsoEDGEWORTH, supranote9,at 2324 ([O]ne of the initial

acts of the First U.S. Congress in 1790 was to enact forfeiture statutes for vessels and cargoes

involved in customs violations.).36 See Higgins, supranote9,at 777 (stating that asset forfeiture was first used in the United

States to combat piracy on the high seas); Piety, supranote29,at 940 (comparing the use of

civil forfeiture in piracy and customs cases).37 SeeColero-Toledo, 416 U.S. at 683 (The enactment of forfeiture statutes has not abated;

contemporary federal and state forfeiture statutes reach virtually any type of property that

might be used in the conduct of a criminal enterprise.).38 See EDGEWORTH, supra note 9, at 24 (citing a U.S. Department of Justice estimate that

there are approximately 140 different federal civil asset forfeiture statutes).39 See id.at 2224 (stating that the Civil Asset Forfeiture Reform Act of 2000 alone included

an additional 247 specific types of conduct under federal money laundering statutes that

would subject property to forfeiture).40 Rick Maixner & Sidney Hertz Fiergola, Constitutional Issues in North Dakota Asset

Forfeiture Law AfterAustin v. United States,Alexander v. United States,andUnited States v.

Good Real Property, 70 N.D.L.REV. 851, 851 (1994); see alsoEDGEWORTH, supranote9, at 28

(stating that one of the most commonly used federal civil forfeiture statutes, 21 U.S.C. 881, is

a federal drug trafficking forfeiture law).


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forfeiture law largely coincides with the expansion of the war on drugs,41with asset forfeiture becoming a primary tool for drug law enforcement. 42In 1970, Congress included asset forfeiture provisions in the

Comprehensive Drug Prevention and Control Act,43

which allowed for theseizure of illicit drugs and property used in the manufacture or conveyanceof drugs.44 Since then, the scope of property subject to these forfeitureprovisions has expanded considerably,45 and now includes virtually allforms of real or personal property.46

Arguably, the most significant expansion of federal drug forfeiture lawoccurred in 1984 when Congress enacted a number of statutes thatexpanded and restructured federal forfeiture law.47 The ComprehensiveForfeiture Act of 198448 included an equitable sharing provision whichallowed federal law enforcement agencies to share the proceeds fromforfeited property with state and local law enforcement agencies.49 Thissharing can occur in two ways: through joint investigations between state

and federal agencies or a federal agency adoptinga state level seizure ofassets and proceeding with the forfeiture under federal law.50Also in 1984,

41 SeeAlison Roberts Solomon, Drugs and Money: How Successful Is the Seizure and Forfeiture

Program at Raising Revenue and Distributing Proceeds?, 42 EMORY L.J. 1149, 114950 (1993)

(Over the last decade, civil and criminal forfeitures have increased enormously, largely in an

effort to win the ever escalating war on drugs.).42 Karis Ann-Yu Chi, Follow the Money: Getting to the Root of the Problem with Civil Asset

Forfeiture in California, 90 CALIF.L.REV. 1635, 1638 (2002) (describing civil asset forfeiture as

an integral part of the War on Drugs arsenal).43 Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84

Stat. 1236 (1970).44 Mary Murphy, Race and Civil Asset Forfeiture: A Disparate Impact Hypothesis, 16 TEX.J.C.L.

&C.R. 77, 80 (2010).45 Sandra Guerra, Family Values?: The Family as an Innocent Victim of Civil Drug Asset

Forfeiture, 81 CORNELL L.REV. 343, 35960 (1996); Murphy, supranote 44, at 81.46 See21 U.S.C. 881(a) (2012). Federal drug forfeiture law allows for the forfeiture of all

property used in connection with the manufacture and sale of illicit drugs, including all

personal and real property, raw materials, equipment, vehicles, and money. Id.47JIMMY GURULE & SANDRA GUERRA, THE LAW OF ASSET FORFEITURE 20 (1998); see, e.g.,

Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976 (1984);

Comprehensive Forfeiture Act, Pub. L. No. 98-473, 98 Stat. 2040 (1984).48 Comprehensive Forfeiture Act, Pub. L. No. 98-473, 98 Stat. 2040 (1984).49 Eric Moores, Reforming the Civil Asset Forfeiture Reform Act, 51 ARIZ. L. REV. 777, 794

(2009); EDGEWORTH, supranote9,at 65.

50 U.S. DEPT. OF JUSTICE, GUIDE TO EQUITABLE SHARING FOR STATE AND LOCAL LAW

ENFORCEMENT AGENCIES6 (2009), available athttp://www.justice.gov/usao/ri/projects/

esguidelines.pdf.


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Congress passed the Comprehensive Crime Control Act,51 whichdrastically changed how the proceeds from seized property were utilized,and allowed federal agencies to retain the seized property or its proceeds

in order to supplement their existing budgets.52

Federal asset forfeiture law has proven to be a significant source of

revenue for federal agencies.53The U.S. Department of Justice lists revenuegeneration as one of the three primary goals of the federal asset forfeitureprogram.54 Between 2003 and 2011 alone, approximately $11 billion inseized assets was deposited into the Federal Asset Forfeiture Fund.55 In2011 the Asset Forfeiture Fund reached $1.8 billion, the largest ever for asingle year.56While federal forfeiture receives the lions share of attention,states have been busy implementing and expanding their own civilforfeiture systems as well.57

2. State Level Civil Asset Forfeiture

Asset forfeiture at the state level is largely comparable to federalforfeiture law in both scope and function, particularly with respect to drugforfeiture law.58 The Uniform Controlled Substances Act,59 which wasinitially adopted in more than forty states, was modeled on federal law andcontained substantially similar language.60 While the Uniform Actprovided a common basis for state level drug forfeiture law, today there isconsiderable variation among the states regarding such matters asprocedure, the availability of defenses, and the allocation of seized

51 Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976 (1984).52 Ross, supranote19,at 27071.53 See John L. Worrall, Asset Forfeiture, U.S. DEPT. OF JUSTICE 1 (2008),

http://www.popcenter.org/responses/asset_forfeiture/.54 Solomon, supranote41,at 115859.55 U.S.GOVT ACCOUNTABILITY OFFICE,JUSTICE ASSET FORFEITURE FUND:TRANSPARENCY OF

BALANCES AND CONTROLS OVER EQUITABLE SHARING SHOULD BE IMPROVED11 (2012), available

athttp://www.gao.gov/assets/600/592349.pdf.56 Radley Balko, 7 Ways the Obama Administration Has Accelerated Police Militarization,

HUFFINGTON POST(July 7, 2013, 7:37 PM), http://www.huffingtonpost.com/2013/07/10/obama-

police-militarization_n_3566478.html.57 Higgins, supranote9,at 779 (States have followed suit, and virtually all states in the

U.S. have numerous asset forfeiture statutes for crimes involving racketeering, narcotics,

nuisances, and others.).58 See EDGEWORTH, supranote9, at 31 (stating that a majority of states have modeled their

forfeiture laws on federal drug forfeiture laws, including the types of property subject to

forfeiture).59 Uniform Controlled Substances Act of 1970, 21 U.S.C. 812 (2014).60 GURULE &GUERRA, supranote47,at 359.


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property and its proceeds.61However, despite these differences, state levelcivil forfeiture is used extensively in the war on drugs and provides stateand local law enforcement agencies with a significant source of funding. 62

The limited data available indicates that, in addition to the amounts seizedby federal agencies, state and local law enforcement seized approximately$1 billion in assets between 2000 and 2003 alone.63 State and local lawenforcement agencies are also increasingly likely to participate in thefederal equitable sharing program, which increases the number offorfeiture cases that proceed under federal, rather than state, civil forfeiturelaw.64

II. Modern Criticism of Civil Asset Forfeiture and Efforts at Reform

A. Criticisms of Civil Asset Forfeiture in the United States

Because civil asset forfeiture results in the seizure of private property,there are constitutional and due process concerns surrounding its use.65Criticism of civil asset forfeiture falls largely into two categories:constitutional due process concerns66 and criticism of law enforcementsability to retain seized property and its proceeds.67 One of the mostcommon criticisms of forfeiture law involves the low burden of proofplaced upon the government in civil forfeiture proceedings. 68Under many

61 See, e.g., EDGEWORTH, supranote9,at 3545 (analyzing state forfeiture statutes and how

they compare to federal forfeiture); GURULE & GUERRA, supranote47,at 35976 (discussing

differences between various state drug forfeiture laws).62 See WILLIAMS ET AL., supranote2, at 30 (discussing the extent of civil forfeiture among

state law enforcement agencies).63

Id.The Institute for Justice indicates that these figures may underrepresent the amount ofproperty seized because the data provided is limited, reflecting only drug forfeitures and not

those under the numerous other forfeiture statutes available to law enforcement. Id.at 2730.64 Id.at 23; seeMoores, supranote49, at 795.65 See, e.g., United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 905 (2d

Cir. 1993) (We continue to be enormously troubled by the government's increasing and

virtually unchecked use of the civil forfeiture statutes and the disregard for due process that is

buried in those statutes.).66 See, e.g.,Douglas Kim,Asset Forfeiture: Giving up Your Constitutional Rights, 19 CAMPBELL

L.REV. 527, 56177 (1997) (discussing the various constitutional challenges to civil forfeiture

laws); Ross, supra note 19, at 26570 (evaluating the level of due process available under

modern federal forfeiture law).67 See, e.g., Chi, supranote42,at 1645 (stating that the most fundamental defect in civil

forfeiture systems is allowing law enforcement to retain the proceeds from seized property).

68 See, e.g., Ross, supra note 19, at 265 (discussing the low burden of proof placed on the

government as an area of concern in civil forfeiture systems); Johnson, supranote8,at 1058

(stating that the inequitable burden of proof was one of the most problematic aspects of


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statutes, police need only show probable cause that the property isconnected to illegal activity in order to initiate forfeiture proceedings.69 Incontrast, the property owner faces a higher burden, usually a

preponderance of the evidence, to show that their property is not subject toforfeiture.70 Additionally, there is concern over the impact that civilforfeiture systems have on innocent property owners.71 The guilt orinnocence of the property owner is largely irrelevant, meaning thatproperty can be forfeited due to the actions of a third party that occurredwithout the property owners knowledge or consent.72 Many statutesprovide property owners with an express innocent owner defense.73However, these defenses are not uniform in their requirements, scope, andavailability.74 Many of the various procedural requirements under civilforfeiture statutes are also criticized as being overly burdensome onproperty owners, such as lack of representation for the indigent, filingdeadlines, and bond requirements.75

Another criticism of modern civil asset forfeiture is the manner inwhich the seized property or its proceeds are utilized. 76 Under federalstatute and forty-two state forfeiture laws, law enforcement agencies retainthe proceeds from seized property.77 This practice, combined with thefederal equitable sharing program, can provide a much needed source of

federal forfeiture law prior to reforms).69 See GURULE &GUERRA, supranote47,at 113; Higgins, supranote9, at 787.70 Ross, supranote19,at 265; see alsoGURULE &GUERRA, supranote47,at 125 (discussing

the burden shifting that occurs in civil in remforfeiture proceedings).71 See Ross, supranote19,at 265 (discussing the risk of erroneous deprivations to innocent

property owners); see also Piety, supranote29,at 91718 ([T]he government is free to exact

forfeiture, not only from the accused, but also from his family

and other innocent third parties,without an adjudication of guilt, and no cry will be heard that this action violates due

process.).72 SeeJohnson, supranote8,at 1054 (stating that the property of innocent owners [can] be

forfeit[] based on third-party conduct that the owner did not know of and/or could not

reasonably foresee).73 See 21 U.S.C. 881(a) (2012) (providing a statutory innocent owner defense);

EDGEWORTH, supra note 9, at 163 (stating that federal and most state statutes contain an

innocent owner defense).74 SeeEDGEWORTH, supranote9,at 16673 (comparing state-level statutory innocent owner

defenses); Higgins, supranote9,at 793 (Several . . . states place the burden on the owner to

assert an affirmative innocent owner defense and, in some instances, do not define or set a

standard as to what burden of proof the owner must meet to prevail.).75 SeeRoss, supranote 19,at 26768 (discussing the difficult procedural hurdles property

owners must face when challenging a seizure).76 SeeJohnson, supranote8,at 1069.77 See WILLIAMS ET AL., supranote2,at 17; Ross, supranote19,at 27071.


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revenue for law enforcement agencies that may otherwise lack funding.78However, this practice is criticized as creating a conflict of interest wherelaw enforcement agencies may be more interested in raising revenue than

enforcing the law.79

Concerns over abuse of federal forfeiture laws and lackof due process protections for property owners led to the passage ofCAFRA.80

B. Reform Efforts and the Civil Asset Forfeiture Reform Act of 2000

Criticism of civil asset forfeiture on the federal level appears to havereached its height in the 1990s, resulting in Congress implementing somereforms through CAFRA.81 The Act contained the most comprehensivereforms of federal forfeiture law ever implemented. 82Responding to manyof the due process and procedural concerns discussed above, Congresssought to make the federal forfeiture system more fair for propertyowners.83 CAFRA contained a number of significant reforms to federal

forfeiture law, including: placing the burden squarely on the governmentto prove the propertys connection to criminal activity; providingrepresentation for indigent property owners; and imposing additionalprocedural and notice requirements on federal agencies once anindividuals property is seized.84 Under CAFRA, the burden of proofplaced upon the government was increased from probable cause to apreponderance of the evidence.85 This arguably remedies the inequitableburdens of proof that existed under the prior law.86CAFRA also clarified

78 See Solomon, supranote41,at 1174 (stating that seized property can be used to purchase

equipment and secure resources that departments would otherwise be unable to afford).79 WILLIAMS ET AL., supra note 2, at 17 (stating that law enforcement agencies face an

incentive to police for profit); Dunn, supranote5 (This potential for abuse is compounded

by the strong financial incentive that law enforcement has to make seizuressince they

benefit directly from forfeited property.).80 Moores, supranote49,at 782.81 Higgins, supranote9,at 77374.82 Stefan D. Cassella, The Civil Asset Forfeiture Reform Act of 2000: Expanded Government

Forfeiture Authority and Strict Deadlines Imposed on All Parties, 27 J.LEGIS. 97, 97 (2001).83 SeeStatement of Rep. Henry Hyde, Forfeiture Reform: Now, or Never?,ACLU (May 3, 1999),

https://www.aclu.org/statement-rep-henry-hyde-forfeiture-reform-now-or-never. Rep. Henry

Hyde, one of the chief sponsors of CAFRA, was motivated by abuses of fundamental

fairness and procedural due process concerns. Id.84Johnson, supranote8.85 Civil Asset Forfeiture Reform Act, Pub. L. No. 106-185, 114 Stat. 202 (2000); Moores, supra

note49,at 78283.86 Brant C. Hadaway, Executive Privateers: A Discussion on Why the Civil Asset Forfeiture

Reform Act Will Not Significantly Reform the Practice of Forfeiture, 55 U. MIAMI L. REV. 81, 104


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the statutory innocent owner defense and made it uniform across thevarious federal forfeiture laws.87 However, CAFRA did not alter federallaw enforcements ability to retain the proceeds from seized property.88

Consequently, this has remained a concern for critics of civil forfeiture andhas resulted in a call for additional reforms.89

Numerous states have also implemented reforms of their ownforfeiture statutes following CAFRA.90For example, many states now placea greater burden on law enforcement to prove the propertys connection toillicit activity.91 Some states, like federal law under CAFRA, require thegovernment to prove its case by a preponderance of the evidence, whileothers go as far as requiring proof by clear and convincing evidence.92Likefederal forfeiture law, state laws in forty-two states currently allow lawenforcement agencies to retain the proceeds from seized property.93

III. Civil Asset Forfeiture in Massachusetts: The Controlled SubstancesAct

The primary civil asset forfeiture statute in Massachusetts, Mass. Gen.Laws ch. 94C 47, is found within the state s Controlled Substances Act.94Enacted in 1971, the Act was based largely upon existing federal drugforfeiture law.95 Accordingly, there are substantial similarities betweenMassachusetts drug forfeiture law and pre-CAFRA federal law.96Section 47allows for law enforcement to seize property, including money as well asreal and personal property, which is used or intended to be used in

(2000).87Johnson, supranote8,at 1079.88 Moores, supranote49,at 78384.89 See Higgins, supranote9,at 77374 (stating that more reform is needed to remove the

financial incentive for law enforcement to engage in civil asset forfeiture); Moores, supranote

49, at 784 (While CAFRA was hailed as the solution to the procedural and constitutional

problems with pre-CAFRA civil asset forfeiture laws, many of those same concerns persist

today.).90 Higgins, supranote9,at 783.91 See EDGEWORTH, supranote9,at 13942 (comparing state-level burdens of proof).92 See id.93 WILLIAMS ET AL., supranote2,at 17.94 SeeMASS.GEN.LAWSch. 94C, 47 (2012).95 SeeDist. Atty for the Nw. Dist. v. E. Hampshire Div. of the Dist. Ct. Dept, 892 N.E.2d

710, 714 (Mass. 2008); Oliver C. Mitchell, Drug Asset Forfeiture Law, 78 MASS.L.REV. 140, 141

(1993).96 CompareMASS.GEN.LAWSch. 94C, 47 (current Massachusetts drug forfeiture law), with

Johnson, supranote8,at 107980 (citing the pre-CAFRA version of 21 U.S.C. 881(a) (2012)).


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violation of the states drug laws.97The property seized usually consists ofcash or funds; however, any form of real or personal property can beseized, such as cars, boats, and homes or other real property. 98 The

individual need not be charged or convicted of any crime.99

Instead, policeare only required to show probable cause that the property is related to orderived from criminal activity.100 Once probable cause is shown, theburden is then placed on the property owner to prove, by a preponderanceof the evidence, that the property is not forfeit.101

The Massachusetts statute contains a limited innocent owner defenseand states that property is not subject to forfeiture unless the ownerthereof knew or should have known that such conveyance or real propertywas used in and for the business of unlawfully manufacturing, dispensing,or distributing controlled substances.102 However, this defense is onlyavailable for property owners whose property is subject to forfeiture underthe argument that it facilitated a drug offense.103The defense is arguably

not available to property owners when their property is alleged to betraceable to, or the proceeds of, a drug offense.104

Massachusetts is among the forty-two states that allow lawenforcement agencies to retain seized property or its proceeds.105 InMassachusetts, 100% of the proceeds of property seized under theControlled Substances Act are retained by law enforcement: half aredistributed to the local police department that seized the property, and theother half is distributed to the appropriate district attorneys office.106Between 20092011, an estimated $33.6 million was seized by lawenforcement in Massachusetts.107

97 MASS.GEN.LAWSch. 94C, 47; Mitchell, supranote95.98 See Mitchell, supranote95,at 141 & n.6.99 SeeMASS.GEN.LAWSch. 94C, 47.100 Id. 47(d); Commonwealth v. One 2004 Audi Sedan Auto., 921 N.E.2d 85, 89 (Mass.

2010); Mitchell, supranote95.101 SeeMASS.GEN.LAWSch. 94C, 47; Mitchell, supranote95,at 142.102 SeeMASS.GEN.LAWSch. 94C, 47(c)(3).103 Mitchell, supranote95,at 142.104 Id.105 WILLIAMS ET AL., supranote2,at 17.106 MASS.GEN.LAWSch. 94C, 47; Jessica Trufant & Laura Krantz, Drug Money Pads DA,

Police Budgets, THE METROWEST DAILY NEWS(Feb. 17, 2013, 5:05 PM) http://www.metrowestdailynews.com/article/20130217/news/302179928.

107 Trufant & Krantz, supranote106.


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ANALYSIS

IV. Massachusetts Drug Forfeiture Law is Outdated and in Need of

Reform

While the Massachusetts Controlled Substances Act, the statesprimary civil forfeiture statute, is based largely upon federal forfeiturelaw,108 it has not undergone any significant reforms comparable to thoseimplemented under CAFRA.109Accordingly, Massachusetts forfeiture lawmaintains many of the most troubling aspects of civil forfeiture systems,including a low burden of proof for law enforcement,110procedural hurdlesand burdens for property owners,111 and inadequate protection forinnocent individuals.112Additionally, Massachusettsforfeiture law createsa structural conflict of interest that provides law enforcement with anincentive to seize private property.113 Because of these out of dateprovisions, civil asset forfeiture in Massachusetts is unfair to property

owners and leaves them open to abuse or erroneous deprivations of privateproperty.114

A. Recent Criticism of Civil Forfeiture in Massachusetts

Recent criticism of Massachusetts forfeiture law has cited the state slow burden of proof and the retention of seized property by lawenforcement as areas of concern.115In 2010, the Institute for Justice releaseda report, Policing for Profit: The Abuse of Civil Asset Forfeiture, whichanalyzed state-level civil asset forfeiture statutes around the country and

108 Commonwealth v. Brown, 925 N.E.2d 845, 852 (Mass. 2010).109 SeeinfraPart IV.B.110 See MASS.GEN.LAWSch. 94C, 47;Commonwealth v. One 2004 Audi Sedan Auto., 921

N.E.2d 85, 89 (Mass. 2010) (stating that Congress altered the burden of proof under CAFRA,

but the Massachusetts Legislature has not followed suit).111 SeeMASS. GEN. LAWS ch. 94C, 47 (shifting the burden of proof from the state to the

property owner).112 SeeMitchell, supranote95,at 142 (stating that the states innocent owner defense is not

available to all property owners).113 SeeMASS.GEN.LAWSch. 94C, 47 (requiring 100% of the proceeds from seized property

to be distributed between local police departments and district attorneys); see also infra Part

V.B.114 SeeRoss, supranote19,at 26670 (describing pre-CAFRA federal forfeiture law and how

it leads to erroneous deprivations of private property); see alsoinfraPart VI.

115 See Adam Joseph Drici, Report: MA Forfeiture Laws Receive Failing Grade, GOLOCAL

WORCESTER (Feb. 18, 2013), http://www.golocalworcester.com/news/report-ma-forfeiture-

laws-receive-f-grade/; Trufant & Krantz, supranote106.


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issued grades to each state accordingly.116 According to the report, sixstates including Massachusetts received failing grades for their forfeiturestatutes, and property owners in Massachusetts are said to be guilty until

proven innocent.117

In addition, the State Auditor released a number ofreports in 2013 that called for improved transparency and proceduralchanges with regard to the receipt, expenditure, and reporting offorfeited property within a number of district attorneysoffices.118

B. Lack of Reform

While the Massachusetts statute was modeled on federal forfeiture law,there have been few revisions since its enactment, and the state has notimplemented corresponding CAFRA reforms.119A ballot initiative in 2000attempted to change the way forfeited property and funds are used, butthis initiative was ultimately unsuccessful and excluded from the ballot bythe States Attorney General.120 Any recent attempts at legislative reform

have been scarce and largely focused on utilizing a portion of the fundsretained from seized property as a means of funding other programs.121

V. Massachusetts Forfeiture Law Creates a Structural Conflict of

Interest, Providing Law Enforcement with an Incentive to Engage inProperty Seizures

Under state forfeiture law, the law enforcement agencies that engage inthe seizure of private property ultimately become the direct beneficiaries ofthe system, because the seized property or its proceeds are retained by the

116

WILLIAMS ET AL., supranote2,at 41.117 Id.at 65.118 See COMMONWEALTH OF MASSACHUSETTSOFFICE OF THE STATE AUDITOR, 2012-1262-3J,

WORCESTER COUNTY DISTRICT ATTORNEYS OFFICE (MIDDLE DISTRICT) 12 (2013), available at

http://www.mass.gov/auditor/docs/audits/2013/201212623j.pdf; COMMONWEALTH OF

MASSACHUSETTS OFFICE OF THE STATE AUDITOR, 2012-1264-3J, BRISTOL COUNTY DISTRICT

ATTORNEYS OFFICE12 (2013),available athttp://www.mass.gov/auditor/docs/audits/2013/

201212643j.pdf.119 CompareMASS.GEN.LAWSch. 94C, 47 (2012) (Massachusetts drug forfeiture law), with

21 U.S.C. 881, 853 (2012) (current federal drug forfeiture law); see alsoCommonwealth v.

One 2004 Audi Sedan Auto., 921 N.E.2d 85, 89 (Mass. 2010) (stating that while CAFRA altered

the burden of proof under federal law, the Massachusetts Legislature has not followed suit).120 SeeMazzone v. Atty Gen., 736 N.E.2d 358, 36566 (Mass. 2000).121 H.R. 1238, 188th Gen. Court, Reg. Sess. (Mass. 2013). This is a proposed amendment to

ch. 94C, 47 that seeks to use some of the seized property to fund gang violence prevention

programs. Id. It has no impact on the burden of proof or burden shifting components of the

law and does not significantly alter the allocation of proceeds to law enforcement agencies. Id.


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agencies that conducted the seizure.122This practice is consistent both withfederal law123and the laws of an overwhelming majority of states. 124Thisresults in seized property becoming a revenue source for law enforcement

agencies, providing them with a financial incentive to initiate forfeitureproceedings.125

A. The Disposition of Seized Property Under MASS.GEN.LAWS. Ch.94C, 47

The disposition of property seized pursuant to the MassachusettsControlled Substances Act is delineated by the language of the statuteitself.126Section 47 of Chapter 94C provides that, once a court issues a finalorder declaring the property in question to be in forfeit, the property isconveyed to the state for official use by an authorized law enforcement orother public agency, or sale at public auction or by competitive bidding. 127If the property is sold, the proceeds are first used to pay for the forfeiture

proceedings.128Any remaining proceeds are distributed equally betweenthe prosecuting district attorney or attorney general and the city, town orstate police department involved in the seizure.129

The use of seized property or its proceeds is subject to fewlimitations.130 The statute establishes separate trust funds, one for districtattorneys and another for police departments, into which the proceedsfrom seized property are deposited.131 Monies are expended from bothfunds without further appropriationand can be used to defray the costsof protracted investigations, to provide additional technical equipment or

122 MASS.GEN.LAWSch. 94C, 47(d).123 See, e.g., 28 U.S.C. 524 (establishing the Department of Justice Assets Forfeiture Fund

into which the proceeds of seized property are deposited).124 See, e.g., WILLIAMS ET AL., supranote2,at 17.125 Id.(Criminologists, economists and legal scholars who have studied forfeiture behavior

have found evidence indicating that police departments are taking advantage of lenient

forfeiture statutes to pad their budgets.);Chi, supranote42,at 1635; Higgins, supranote9,at

77879.126 MASS.GEN.LAWSch. 94C, 47(d) (requiring that forfeited property be conveyed to the

state for subsequent use or sale at auction); Dist. Atty for the Nw. Dist. v. E. Hampshire Div.

of the Dist. Ct. Dept, 892 N.E.2d 710, 71213 (Mass. 2008).127 47(d).128 Id.129 Id.; see alsoDist. Atty for the Nw. Dist., 892 N.E.2d at 713 (discussing the disposition of

seized property under 47).

130 See 47(d) (stating that funds can be expended without further appropriation).131 Seeid.; see alsoDist. Atty for the Nw. Dist., 892 N.E.2d at 713 (describing the trust funds

established pursuant to 47(d)).


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expertise, to provide matching funds to obtain federal grants, or [toaccomplish] such other law enforcement purposes as the district attorney or[chief of police] deems appropriate.132District attorneys may expend the

proceeds of forfeited property on drug prevention and related programs,but the amount expended on such programs cannot exceed ten percent ofexpenditures.133 Police departments can appropriate funds for any of thepurposes listed above, but may not use the funds to directly supplementtheir operating budgets.134

B. Allowing Law Enforcement to Retain the Proceeds from SeizedProperty Creates a Conflict of Interest

With the passage of the Comprehensive Crime Control Act of 1984,federal forfeiture law started the trend of giving law enforcement theability to retain seized property or its proceeds.135States soon followed thislead, and now civil forfeiture laws in all but eight states remit the proceeds

of seized property back to the law enforcement agencies that initiated theseizure.136 Utilizing seized property as a funding mechanism for lawenforcement agencies gives these agencies an enormous economic stakein the process.137 This economic stake results in an incentive for lawenforcement to engage in asset forfeiture as a means of generatingrevenue.138In fact, the use of civil asset forfeiture as a tool to combat crimeincreased once law enforcement was given a financial stake in theprocess.139Revenue generation has been cited as a primary purpose behindthe federal asset forfeiture program.140

132 47(d) (emphasis added).133 Id.134 Id.135 See Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War's Hidden Economic

Agenda, 65 U.CHI.L.REV. 35, 5051 (1998); Hadaway, supranote86,at 93; Higgins, supranote

9,at 779.136 SeeWILLIAMS ET AL., supranote2,at 17.137 Blumenson & Nilsen, supra note 135, at 51; see also Chi, supra note 42, at 1635 (This

distribution scheme gives law enforcement agents, including police and prosecutors, a direct

financial stake in civil asset forfeiture proceeds and creates a powerful incentive for law

enforcement agencies to initiate and participate in forfeiture actions.).138 Chi, supranote42,at 1635; Higgins, supranote9,at 77879.139 See Blumenson & Nilsen, supranote135, at 50 (stating that interest in using civil asset

forfeiture increased after Congress allowed law enforcement to retain the proceeds from

seized property); see also WILLIAMS ET AL., supranote2, at 11; Dunn, supranote5.

140 U.S.DEPT.OFJUSTICE, GUIDELINES ON SEIZED AND FORFEITED PROPERTY1 (1990), availableathttp://www.justice.gov/ag/readingroom/seized.htm

(The Department of Justice asset forfeiture program has three primary


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Revenue generation is not an evil by itself, and supporters of civil assetforfeiture may rightly argue that revenue generation is a legitimategovernment interest.141 Forfeiture proceeds enable law enforcement

agencies to augment their budgets, and can allow them to purchase assetsor utilize resources that may otherwise be out of their financial reach.142Revenue sources for law enforcement are particularly important duringrecessions and other times of fiscal belt-tightening.143 Additionally,allowing state and local law enforcement to receive a share of the proceedsfrom federal forfeitures through the federal equitable sharing program hasarguably led to increased cooperation between federal and state-level lawenforcement agencies.144

However, it is not the prospect of revenue generation itself that causesproblems, but the resulting alteration in law enforcement behavior. 145While increased revenue can improve the ability of law enforcement

goals: (1) to punish and deter criminal activity by depriving criminals ofproperty used or acquired through illegal activities; (2) to enhance

cooperation among foreign, federal, state and local law enforcement

agencies through the equitable sharing of assets recovered through this

program: and, as a byproduct, (3) to produce revenues to enhance

forfeitures and strengthen law enforcement.);

Solomon, supranote41,at 115859.141 See, e.g., Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629 (1989) (The

sums of money that can be raised for law-enforcement activities . . . [through forfeiture] are

substantial,and the Government's interest in using the profits of crime to fund these activities

should not be discounted.).142 See Solomon, supranote41, at 1174; Worrall,supra note 53,at 1314 (stating that civil

forfeiture can help boost law enforcements ability to target crime).143

See, e.g., Jack Flynn, Springfield Police, Fire Officials Say Budget Cuts Will Cause Layoffs,MASSLIVE (Feb. 12, 2013, 8:58 PM), http://www.masslive.com/news/index.ssf/2013/02/

springfield_police_fire_offici_1.html (stating that, since 2001, city police and fire personnel

have decreased from 713 and 394 employees to 445 and 240 employees, respectively); Charles

Winokoor, Taunton Police and Fire Departments Concerned About Possible Layoffs, TAUNTON

DAILY GAZETTE(Jun. 11, 2011, 11:04 AM), http://www.tauntongazette.com/

x1162601122/Taunton-police-and-fire-departments-concerned-about-possible-layoffs

(discussing possible layoffs of 53 police and fire personnel); see alsoBudget Monitor: The FY

2014 Budget, MASS.BUDGET AND POLY CENTER(Aug. 7, 2013), http://www.massbudget.org/

report_window.php?loc=budget_monitor_gaa_fy14.php. The Massachusetts state fiscal

budget has seen Unrestricted General Government Aid to cities and towns, otherwise known

as Local Aid, cut by approximately 46% between 2001 and 2013. Id.144 Solomon, supranote41,at 1174.145 See Blumenson & Nilsen, supra note 135, at 56 (It takes no special sophistication to

recognize that this incentive constitutes a compelling invitation to police departments to stray

from legitimate law enforcement goals in order to maximize funding for their operations.);

Chi, supranote42,at 1645.


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agencies to do their jobs, it can also change[] the nature of the job itself.146The financial incentive can result in a distortion of law enforcementpolicies where the seizure of assets displaces other law enforcement

priorities.147

For example, police departments have increasingly resorted toreverse stings,where they target drug buyers rather than drug dealers. 148The police are then able to seize the buyers money, which is morelucrative for police departments than seizing a dealers drugs, but this doeslittle to disrupt the supply of illicit drugs.149Police departments have alsobeen known to encourage arrests on high-priced pieces of real propertywith the goal of enabling them to then seize that property throughforfeiture proceedings.150The possibility of police officers and prosecutorsbeing more interested in financial gains than criminal justice has beencharacterized as one of the most serious threats to personal liberty in U.S.history,151and the most intuitively obvious problemwith modern civilasset forfeiture systems.152

To the credit of law enforcement agencies in Massachusetts, the mostegregious examples of asset forfeiture abuse appear to occur in otherstates.153 However, the conflict of interest inherent in the states drugforfeiture law is very real, and it should not take headline-grabbing policemisconduct before reforms are pursued.154 One recent case involved anindividual, Franklin Diaz, who delivered more than ten thousand dollarsto the Woburn police department in an attempt to bail out an employeeand family friend.155Instead of releasing his friend, police told Diaz that thefunds had been seized after a K-9 unit alerted police to the presence ofnarcotic residueon the money.156Luckily for Diaz, a Superior Court judgeruled that the canine alert by itself was not enough for the police officers toshow probable cause that the money was related to, or the proceeds from,

146 Blumenson & Nilsen, supranote135,at 56.147 Chi, supranote42,at 1645.148 Blumenson & Nilsen, supranote135,at 67.149 See Blumenson & Nilsen, supranote135, at 56; Chi, supranote42,at 164546.150 SeeRoss, supranote19,at 27273.151 Hadaway, supranote86,at 92.152 Blumenson & Nilsen, supranote135,at 56.153 See, e.g., WILLIAMS ET AL., supranote2,at 16, 19, 28, 33, 38 (describing law enforcement

abuses of civil forfeiture systems in Texas, Georgia, Nebraska, and Pennsylvania).154 See, e.g., Commonwealth v. One 1999 Honda Accord Auto., 26 Mass. L. Rptr. 110, 11011

(Mass. Supp. 2009) (describing police seizure of $10,000 in bail money that the claimant had

delivered to police to secure the release of an employee and family friend).155 Id.at 111.156 Id.


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an illegal drug transaction.157 Despite the positive outcome, this case isillustrative in that it shows the ease with which police engage in propertyseizure.158 If the amount in question had been less, the police may well

have succeeded in subjecting the bail money to forfeiture and avoidedjudicial review of a practice that may very well be routine.159The financialincentive to engage in the seizure of private property is exacerbated byother provisions of the Controlled Substances Act that heavily favor thesuccess of civil forfeiture proceedings and act as roadblocks for innocentproperty owners.160

VI. Massachusetts Civil Forfeiture Law is Unfair to Property Owners andPlaces Them at Risk of Erroneous Deprivations of Private Property

The civil forfeiture provisions of the Massachusetts ControlledSubstances Act are largely modeled after the federal civil forfeiture lawthat was in effect at the time of the Acts passage.161Since that time, federal

forfeiture law underwent significant reforms through Congresss passageof the CAFRA,162 which contained the most comprehensive reforms offederal forfeiture law ever implemented.163 The Massachusetts statute,however, has not undergone similar reforms164and still maintains many ofthe more troubling aspects of pre-CAFRA federal forfeiture law,165including: a low burden of proof for law enforcement to initiate forfeiture

157 Id.at 11112.158 See id.at 111. If police are willing to attempt the seizure of $10,000 in bail money paid by

an innocent third party, it is likely that the same police department is willing to engage in a

variety of other questionable property seizure activities. SeeSolomon, supra41, at 115859.159 See Ross, supra note 19, at 26567 (stating that the cost of hiring an attorney and

contesting the forfeiture may often outweigh the value of the property and contributes to thenear 80% default rate for civil forfeiture proceedings); see, e.g., Stillman, supra note 6

(describing the routine practice in Tenaha, Texas of stopping out-of-state rental cars and

seizing cash and property, often without any accompanying criminal charges).160 SeeRoss, supranote19,at 26670 (describing pre-CAFRA federal forfeiture law and how

it leads to erroneous deprivations of private property); see alsoinfraPart VI.161 SeeDist. Atty for the Nw. Dist. v. E. Hampshire Div. of the Dist. Ct. Dept, 892 N.E.2d

710, 714, 717 (Mass. 2008); Mitchell, supranote95.162 Seesupranotes8184 and accompanying text.163 Cassella, supranote82.164 SeesupraPart IV.B.165 Compare MASS. GEN. LAWS ch. 94C, 47 (2012) (current Massachusetts drug forfeiture

law), with Johnson, supranote8,at 1079 (citing the pre-CAFRA version of 21 U.S.C. 881(a)

(2012)), and 21 U.S.C. 881, 853 (2012) (current federal drug forfeiture law). Cf.

Commonwealth v. One 2004 Audi Sedan Auto., 921 N.E.2d 85, 89 (Mass. 2010) (stating that

while CAFRA altered the burden of proof under federal law, the Massachusetts Legislature

has not followed suit).


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proceedings;166 burden shifting, which requires the property owner toprove a negative;167 and a lack of procedural or systemic safeguards toprotect indigent property owners.168 These provisions result in a civil

forfeiture system that is unfair to property owners and allow for erroneousdeprivations of private property.169

A. A Probable Cause Standard is Too Low and Encourages LawEnforcement to Initiate Forfeiture Proceedings

The burden of proof placed upon the government to initiate civilforfeiture proceedings in Massachusetts is extremely low and placesproperty owners at risk of erroneous deprivation of private property. 170Inorder to seize property and subject it to forfeiture, the government needonly show probable cause that the property is related to or derived fromcriminal activity.171This is not to say that the government must prove byprobable cause that the property is forfeit, but instead the government

must only show the existence of probable cause to institute the action.172This distinction is important and illustrative of the problems that propertyowners may face under civil forfeiture systems.173

166 One 2004 Audi Sedan Auto., 921 N.E.2d at 89; Mitchell, supra note 95, at 147. Compare

MASS. GEN. LAWS ch. 94C, 47 (current state forfeiture law requiring probable cause), with

Alessio, supranote15,at 43738 (discussing the probable cause standard under pre-CAFRA

forfeiture law), and 18 U.S.C. 983(c) (requiring the government to prove its case by a

preponderance of the evidence under current forfeiture law).167 CompareMASS.GEN.LAWSch. 94C, 47 (placing the burden on the property owner to

prove the property in question is not forfeit), withHiggins, supranote9, at 787 (stating that,

following CAFRA, the burden is on the government to prove that the property is subject to

forfeiture).168 CompareMemorandum from Poonam Patidar to Susan M. Finegan at 13 (January 22,

2008), in GIDEONS NEW TRUMPET: EXPANDING THE CIVIL RIGHT TO COUNSEL IN

MASSACHUSETTS, BOSTON BAR ASSNapp. 4 (2008), available athttps://www.bostonbar.org/

prs/nr_0809/GideonsNewTrumpet.pdf [hereinafter GIDEONS NEW TRUMPET] (listing the types

of civil proceedings which are accompanied by a right to appointed counsel, which does not

include civil forfeiture proceedings), with18 U.S.C. 983(b) (2012) (providing appointment of

counsel in civil forfeiture proceedings for certain indigent defendants).169 SeeRoss, supranote19,at 26670 (describing pre-CAFRA federal forfeiture law and how

it leads to erroneous deprivations of private property).170 Cf. id. at 26768 (discussing how the low probable cause standard under federal law

added to the risk of erroneous deprivations of private property).171 MASS.GEN.LAWSch. 94C, 47 (2012); Commonwealth v. One 2004 Audi Sedan Auto.,

921 N.E.2d 85, 89 (Mass. 2010); Mitchell, supranote95,at 141.

172 47(d) (emphasis added).173 See Alessio, supra note15,at 440 (Having a low burden of proof and liberal rules of

evidence show that the shifting of the burden to the claimant is an illusion. Under these


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According to the Massachusetts Supreme Judicial Court (SJC), thisburden is similar to [the governments] burden in seeking an indictmentand less than its burden at a probable cause hearing to determine whether

someone should be held for trial.174

This burden of proof is characterizedas the lowest burdenthat can be imposed under American law.175Underthis standard, as before a grand jury when seeking a criminal indictment,the government may offer hearsay evidence in support of the propertyseizure.176In fact, the burden on law enforcement is so low that it requiresless than prima facie proof, meaning the government can meet this burdeneven when offering evidence that would otherwise be insufficient to proveits case at trial.177

The inclusion of a probable cause standard is not without itsrationale.178The policy justification for the civil forfeiture process is that thesystem is necessary to deprive criminals of their ill-gotten gains.179 Toaccomplish this, law enforcement must be able to initiate the forfeiture

proceedings, and the statutes probable cause standard is clearly includedfor that purpose.180The probable cause standard here is the same standardto which the prosecution would be held in seeking a criminal indictment,meaning the property and the propertys owner would both be subject tothe same standard.181 In addition, post-seizure remedies can be employedto help ensure due process,182possibly reducing the propertys seizure to atemporary inconvenience imposed on the property owner.183 However,the probable cause standard cannot be viewed in isolation; and when

circumstances, the burden is effectively placed upon the claimant from the outset of the

trial.).174 Commonwealth v. Fourteen Thousand Two Hundred Dollars, 653 N.E.2d 153, 157

(Mass. 1995).175 Alessio, supranote15,at 437.176 One 2004 Audi Sedan Auto., 921 N.E.2d at 89.177 Fourteen Thousand Two Hundred Dollars, 653 N.E.2d at 15758.178 See infranotes179181 and accompanying text.179 Higgins, supranote9,at 77374.180 SeeMASS.GEN.LAWSch. 94C, 47 (2012) (stating that the government must show there

is probable cause to institute the action) (emphasis added).181 See Fourteen Thousand Two Hundred Dollars, 653 N.E.2d at 157 (stating that the probable

cause burden under 47 is similar to probable cause in seeking a criminal indictment).182 See Gilbert v. Homar, 520 U.S. 924, 930 (1997) (stating that, in some circumstances,

postdeprivation process satisfies the requirements of the Due Process Clause);

Commonwealth v. Goldman, 496 N.E.2d 426, 28 (Mass. 1986) (holding that [f]undamental

due process considerations entitle a property owner to an evidentiary hearing on theconnection between the property and the alleged illegal drug activity).

183 Ross, supranote19,at 267.


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combined with shifting the burden to the property owner to prove theproperty is not forfeit, the probable cause standard heavily favor[s]government success and makes it very difficult for property owners to

avoid forfeiture.184

B. Civil Forfeiture in Massachusetts Places the Burden of Proof onProperty Owners, Effectively Making Them Guilty Until ProvenInnocent

Under 47, once the government shows there is probable cause toinitiate forfeiture proceedings, the burden shifts to the property owner toprove that the property is not subject to forfeiture. 185This burden shifting isthe same mechanism that was utilized by pre-CAFRA federal forfeiturelaw.186 Shifting the burden to the property owner is relatively unique tocivil forfeiture law.187Criminal proceedings place the burden squarely onthe government, the party initiating the judicial proceedings, to prove its

case beyond a reasonable doubt.188Civil cases likewise place the burden onthe plaintiff, the party initiating the action, to prove its case by apreponderance of the evidence.189 This makes civil forfeiture proceedingsunique because the property owner, who is analogous to a defendant in acivil action, bears the burden of proof.190

This type of burden shifting under civil forfeiture law has beendescribed as inequitable.191Because forfeitures are civil in remproceedings,lowering the governments burden of proof to probable cause does notviolate due process.192 The government is effectively reducing its own

184 Alessio, supranote15,at 438.185 MASS.GEN.LAWSch. 94C, 47(d); see alsoFourteen Thousand Two Hundred Dollars, 653

N.E.2d at 154 (citing the statutory language).186 See Johnson, supra note 8, at 105859 (discussing pre- and post-CAFRA burdens of

proof).187 See GURULE & GUERRA, supra note 47, at 113 (stating that in most civil actions the

plaintiff bears the burden of proof); United States v. All Assets of Statewide Auto Parts, Inc.,

971 F.2d 896, 903 (2d cir. 1993) (stating that the procedural safeguards of criminal law, such as

the government bearing the burden of proof, are absent in civil forfeiture proceedings).188 Commonwealth v. Parenteau, 948 N.E.2d 883, 888 (Mass. 2011); Alessio, supranote15,at

437.189 GURULE &GUERRA, supranote47,at 113.190 SeeAll Assets of Statewide Auto Parts, Inc., 971 F.2d at 903 (comparing burdens of proof in

civil forfeiture and criminal proceedings); GURULE &GUERRA, supranote47,at 113 (comparing

burdens of proof in a standard civil case to civil forfeiture proceedings).

191 See Johnson, supra note 8, at 1058 (stating that perhaps the most problematic pre-Reform Act part of the civil forfeiture statute was the inequitable burden of proof).

192 Alessio, supranote15, at 437; see, e.g., United States v. $2,500 in U.S. Currency, 689 F.2d


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burden of proof to the lowest possible level,193while simultaneously raisingthe burden of proof on property owners to something higher than wouldotherwise be placed upon them in either criminal or civil proceedings. 194

The result of the shift is that the burden is effectively placed upon theclaimant from the outset of the trial.195 This makes it easier for thegovernment to initiate forfeiture proceedings but more difficult forproperty owners to defend their property.196

The negative effect of this burden shift is compounded by requiringproperty owners to prove by a preponderance of the evidence that theirproperty is not subject to forfeiture.197This results in property owners notonly having to prove their case by a higher standard, but also requires thatthey prove a negative.198 The Massachusetts statute includes a limitedinnocent owner defense and states that [n]o conveyance or real propertyshall be subject to forfeiture unless the owner[s] thereof knew or shouldhave known that their property was being used to facilitate a drug

offense.199

This imposes a standard that is all but impossible to meetbecause the owner must prove that he lacked both control over andknowledge of the propertys unlawful usenegatives that are oftenimpossible to prove.200This creates a system that is inherently unfair201

10, 12 (2d Cir. 1982) (stating that requiring probable cause to institute a civil forfeiture action

does not violate due process).193 See supranotes175177 and accompanying text.194 Alessio, supranote15,at 438; see alsosupranotes187190 and accompanying text.195 Alessio, supranote15,at 440.196 Cf. WILLIAMS ET AL., supra note 2, at 20 (discussing how a higher standard of proof

under state law provides greater protections for property owners).

197 SeeUnited States v. Daccarett, 6 F.3d 37, 57 (2d Cir. 1993)

(Not only does the burden shift to the claimant opposing forfeiture, but

the claimant's burden is heavier than the government's. While the

government, to establish a prima facie case for forfeiture, need only

demonstrate reasonable grounds, the owner of the seized property must

prove that the defendant property is legitimate by a preponderance of

the evidence, a more stringent standard.)

(quoting United States v. 303 W. 116th St.,901 F.2d 288, 291 (2d Cir.1990)).198 Ross, supra note19,at 265; see alsoGuerra, supranote45, at 370 (stating that property

owners face the unenviable task of proving a negative: that they did not have knowledge of

or did not consent to the illegal use).199 MASS.GEN.LAWSch. 94C, 47(c) (2012).200 Roger Pilon, Can American Asset Forfeiture Law Be Justified?, 39 N.Y.L.SCH.L.REV. 311,

313 (1994).201 United States v. All Funds on Deposit in Any Accounts Maintained at Merrill Lynch,

Fenner & Smith, 801 F.Supp. 984, 991 (E.D.N.Y. 1992).


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to a property owner whose innocence is largely irrelevant.202

The unfairness of the burden shift becomes evident when paired withthe governments low burden of proof.203Commonwealth v. Eight Thousand

Dollars in U.S. Currency is illustrative.204 Here, the property owner wasstopped for speeding, and $8,000 in cash was subsequently seized by apolice officer who believed the money was connected to a drugtransaction.205The seizure was predicated upon the claimant s prior historyof drug offenses, but the claimant was not charged with any drug offensesrelated to the traffic stop.206Instead, the claimant was charged with trafficviolations and driving without a valid license.207At trial, certain facts wereestablished by admission, including that the state: (1) could not provideany direct evidence establishing that the money was connected to drugactivities; (2) did not know whether the money was proceeds of drugactivities; (3) did not know how the claimant came into possession of themoney; (4) did not know whether the money was proceeds from a personal

injury settlement and could not establish that it was notproceeds from apersonal injury settlement; and (5) confirmed the claimant had recentlysettled a personal injury case for $8,019.28.208 Despite not being able toprove any direct connection between the claimant s money and illegalactivity, the government prevailed and the property was deemed forfeit.209

This outcome is the result of the governments ability to offer less thanprima facie evidence in support of its claim,210while forcing the claimant tobear the burden of proving that his own money was not illegally

202 SeeBennis v. Michigan, 516 U.S. 442, 446 (1996) (holding that property owners are not

constitutionally entitled to an innocent owner defense); Colero-Toledo v. Pearson Yacht

Leasing Co., 416 U.S. 663, 683 (1974) (stating that the innocence of the owner of property

subject to forfeiture has almost uniformly been rejected as a defense); Ross, supranote19,at

270.203 See, e.g., Commonwealth v. Eight Thousand Dollars in U.S. Currency, 20 Mass. L. Rptr.

103, 10506 (Mass. Supp. 2005) (finding that the property owner failed to meet their burden

despite the government offering no evidence that any of the cash came from any particular

drug transaction).204 Seeid.at 10406 (exemplifying how easy it is for the government to meet its burden and

initiate forfeiture proceedings with little to no evidence, yet how difficult it is for a property

owner to prove their case by a preponderance of the evidence).205 Id.at 103.206 Id.207 Id.208 Id.at 104.

209 See Eight Thousand Dollars in U.S. Currency, 20 Mass. L. Rptr. at 10506.210 SeeCommonwealth v. Fourteen Thousand Two Hundred Dollars, 653 N.E.2d 153, 157

58 (Mass. 1995).


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obtained.211 Even though the property owner could prove he settled apersonal injury claim for nearly the exact amount seized, and had providedan explanation as to why he had the money in his possession at the time, it

was not enough to carry his burden.212

The trial judge stated that [i]t is notenough that [the claimant] advanced some explanation. . . . he has theaffirmative burden to present credible evidence to support [his] defense of[an] alternate legitimate source [of the $8,000].213 It is difficult to view aforfeiture system as fair when it enables law enforcement to seize privateproperty and subject it to forfeiture when the government is effectivelyrequired to prove nothing.214 In criminal cases, defendants are presumedinnocent until proven guilty,215 but under the Massachusetts ControlledSubstances Act it appears that property owners are guilty until they provetheir own innocence.216

C. Civil Forfeiture in Massachusetts Increases the Likelihood ofErroneous Deprivations of Private Property

As it currently stands, the Massachusetts Controlled Substances Actputs property owners at risk of erroneous deprivations of property.217Thedeficiencies in the statute are exacerbated by the fact that propertyforfeitures are largely carried out as civil in remproceedings.218In forfeitureproceedings, the government is attacking the property and not the person,and property owners cannot avail themselves of the procedural and dueprocess protections that accompany criminal prosecutions.219For example,

211 SeeEight Thousand Dollars in U.S. Currency, 20 Mass. L. Rptr. at 10506; Ross, supranote

19,at 265.212 Eight Thousand Dollars in U.S. Currency, 20 Mass. L. Rptr. at 10506.213 Id.at 105 (quoting United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 878 (10th

Cir. 1992)) (alterations in original).214 Alessio, supranote15, at 440; see, e.g.,Eight Thousand Dollars in U.S. Currency, 20 Mass. L.

Rptr. at 105 (stating that the fact that there was no evidence that any of the cash came from

any particular drug transaction was not enough for the property owner to prevail).215 Commonwealth v. Super, 727 N.E.2d 1175, 1182 (Mass. 2000).216 See Alessio, supranote15 (By shifting the burden of proof upon a showing of probable

cause by the government, the property is effectively guilty until proven innocent.).217 Compare MASS. GEN. LAWS ch. 94C, 47 (2012) (Massachusetts civil forfeiture statute),

with Ross, supra note 19, at 26670 (describing how pre-CAFRA federal forfeiture leads to

erroneous deprivations of private property).218 See MASS.GEN.LAWSch. 94C, 47(c) (stating that forfeiture proceedings are civil in rem

proceedings); Eight Thousand Dollars in U.S. Currency, 20 Mass. L. Rptr. at 105 (Crucial is thecircumstance that this is a civil proceeding . . . .).

219 SeeUnited States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 903 (1993).


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property owners do not have a constitutional right to appointed counsel.220In Massachusetts, indigent civil defendants do have limited access to courtappointed representation, but this access does not include representation

for civil forfeiture proceedings.221

This leaves property owners to either hiretheir own attorney or to navigate the judicial system on their own.222

The inequity in burdens of proof makes challenging forfeituresextremely difficult, particularly for indigent property owners whoseproperty may be worth less than the cost of challenging the forfeiture.223Anoverwhelming majority of forfeiture proceedings result in a defaultjudgment in favor of the government, with some estimates as high as 80-90percent.224 The procedural intricacies of the judicial system can becomeinsurmountable hurdle[s]for poor claimants, particularly if their cash orassets have just been seized by law enforcement.225Alternatively, a simplecost-benefit analysis may cause some property owners to simply foregoeven challenging the property forfeiture.226If the cost of hiring an attorney

is greater than the value of the seized property, then the property owner islikely to lose regardless of the case s outcome.227Allowing the governmentto initiate forfeiture proceedings with virtually no direct evidence, andplacing the burden on property owners to prove their property sinnocence, combined with the time and costs involved in defending aforfeiture action, results in a high risk of erroneous deprivations of privateproperty.228

VII. Proposed Reforms

The Massachusetts Controlled Substances Act needs to be reformed to

220 Guerra, supranote45, at 364.221 SeeGIDEONS NEW TRUMPET, supranote168,at 7 (listing the types of civil proceedings in

Massachusetts that are accompanied by a right to appointed counsel).222 See Ross, supranote19,at 26768; Guerra, supranote45,at 36364.223 See Ross, supra note 19, at 26768 (discussing how the costs involved can prevent

individuals from contesting the forfeiture of their property and increasing the likelihood of an

erroneous result).224 Id. at 268 (eighty percent default rate); see Blumenson & Nilsen, supra note135, at 50

(ninety percent of cash forfeitures); see, e.g., Commonwealth v. $1,321.00 in U.S. Currency, No.

05-4437D, 2007 WL 7732394, at *1 (Mass. Supp. Apr. 26, 2007) (default judgment).225 Ross, supranote19,at 267.226 See id.227 See id. (These individuals must default without the ability of receiving a meaningful

hearing.).

228 See id. at 26768 (Thus, time and cost present substantial barriers that operate to

permanently deprive innocent owners of their property on a mere showing of probable

cause.).


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ensure that the system operates in a manner that is both fair to propertyowners and free of improper incentives for law enforcement. 229 At aminimum, the conflict of interest inherent in the statute s self-funding

mechanism should be removed by subjecting the proceeds from seizedproperty to legislative appropriation.230 To ensure greater due processprotections for property owners, the burden should be placed squarely onthe government to prove its case, rather than shifting the burden toproperty owners.231 The State should also strongly consider providingindigent property owners with appointed counsel to ensure that the costsinvolved with challenging forfeiture proceedings do not result inerroneous deprivations of private property.232These reforms are not onlyrealistic, but many have already been implemented on both the state andfederal level.233

A. The Proceeds from Seized Property Should Be Subject to LegislativeAppropriation

Removing the structural conflict of interest inherent in the ControlledSubstances Act will help ensure that law enforcement in Massachusettsremains focused on enforcing the law rather than padding their budgets.234The clearest way to remedy this conflict is to require the proceeds fromseized property to be deposited into the states general fund and subjectingthe money to legislative appropriation.235This helps to resolve the conflictin two ways: first, it removes the direct financial incentive that lawenforcement currently faces; second, it helps ensure greater oversight andtransparency within the civil forfeiture system.236 Currently, the states

229 See infraParts VII.A and VII.B.230 See Moores, supra note 49, at 79899 (suggesting post-CAFRA reforms to remove the

systemic conflict of interest under federal forfeiture law).231Johnson, supranote8, at 1075 (Potentially, the most important part of the Reform Act is

the change it makes to the government's burden of proof.).232 See Ross, supranote19,at 27475 (discussing the importance of including appointment

of counsel for indigent property owners under CAFRA).233Johnson, supra note 8, at 107172 (noting that CAFRAs reforms include appointed

counsel for some indigent property owners, and placing the burden of proof on the

government); see, e.g.,EDGEWORTH, supranote9,at 13942 (citing the burdens of proof under

state forfeiture laws, with a majority of states requiring the government to prove its case by a

preponderance of the evidence or higher standard).234 See Blumenson & Nilsen, supranote135,at 56 (stating that the conflict of interest creates

a compelling invitation to police departments to stray from legitimate law enforcement goals

in order to maximize funding).235 SeeBlumenson & Nilsen, supranote135, at 109; Higgins, supranote9,at 796.236 Blumenson & Nilsen, supranote135,at 109.


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district attorneys share in the proceeds realized from seized property.237This raises concerns about the impartiality of those tasked with pursuingthe forfeiture proceedings.238 Requiring that the funds be subjected to

legislative appropriation would increase oversight and ensure greaterpolitical accountability for the civil forfeiture system as a whole.239Despitebeing the most obvious reform,240 the financial incentive component offederal forfeiture law was not addressed by CAFRA. 241 As a result, thereare continued calls for federal reforms to address this issue.242

That this reform was not included in CAFRA does not make it any lessfeasible.243In fact, prior to the Comprehensive Crime Control Act of 1984,the proceeds from seized property were deposited in the U.S. Treasury sgeneral fund.244Eight states currently operate civil forfeiture systems thatdo not allow law enforcement to retain the proceeds from seizedproperty.245 In addition, reform efforts are underway in a number ofjurisdictions that currently operate with this conflict of interest.246

Accordingly, there is statutory and legislative precedent around thecountry that supports the implementation of this reform.247Removing theconflict of interest inherent in Massachusetts civil forfeiture law is all themore important because the failure to do so may jeopardize theeffectiveness of other procedural or substantive reforms.248

237 MASS. GEN. LAWS ch. 94C, 47(d) (2012); see also Dist. Atty for the Nw. Dist. v. E.

Hampshire Div. of the Dist. Ct. Dept, 892 N.E.2d 710, 71213 (Mass. 2008) (discussing the

allocation of seized property under state law).238 See Blumenson & Nilsen, supranote135, at 6872.239 Chi, supranote42,at 1647, 1665, 1668.240 Blumenson & Nilsen, supranote135,at 109.241 SeeCivil Asset Forfeiture Reform Act, Pub. L. No. 106-185, 19, 114 Stat. 202, 223 24

(2000); Hadaway, supranote86,at 87.242 See Moores, supranote49,at 79798.243 See WILLIAMS ET AL., supra note 2, at 17 (showing that eight states currently operate

forfeiture systems without allowing law enforcement to retain the proceeds from seized

property).244 Hadaway, supranote86,at 93.245 WILLIAMS ET AL., supranote2,at 17.246 See John K. Ross, Don't Look Now but Washington D.C. May Actually Reform Civil Asset

Forfeiture, REASON (July 20, 2013, 8:00 AM), http://reason.com/blog/2013/07/20/dont-look-now-

but-washington-dc-may-actu; Radley Balko, Tennessee Asset Forfeiture Bill Seeks to Abolish

Abusive Police Practice, HUFFINGTON POST(Mar. 22, 2013, 3:35 PM), http://

www.huffingtonpost.com/2013/03/22/tennessee-asset-forfeiture_n_2933246.html.247 See supranotes24446 and accompanying text.

248 SeeChi, supranote42,at 1664 (As long as law enforcement agencies profit financially

from civil asset forfeiture . . . law enforcement agencies motivated by the forfeiture money will

distort law enforcement objectives, abuse the forfeiture process, and evade political


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B. The Burden Must Be Placed Firmly on the Government to ProveThat the Property in Question Is Subject to Forfeiture

To ensure the civil forfeiture system treats property owners fairly, theburden must be placed on the government to prove that the property issubject to forfeiture.249Placing the burden on individuals to prove that theirproperty is not subject to forfeiture tilts the system in favor of thegovernment and increases the likelihood of an erroneous deprivation ofproperty.250 Civil asset forfeiture may be carried out through civilproceedings, but its purpose ispunitiveit is to punish property ownerswho have engaged in illegal activity.251Before imposing punishment on anindividual, the government should be held to a standard higher than lessthan prima facie proof.252 Removing the burden shifting component offederal forfeiture law is cited as the most important reform implementedunder CAFRA.253

By maintaining a probable cause standard, Massachusetts is now in the

minority of jurisdictions relative to burdens of proof for asset forfeitureproceedings.254 CAFRA placed the burden on the federal government toprove by a preponderance of the evidence that the property is subject toforfeiture.255 Additionally, thirty-eight states require showing more thanprobable cause either for all forfeitures or those seeking the forfeiture ofreal property, with a recent trend of requiring clear and convincingevidence.256 Two states go as far as requiring proof beyond a reasonabledoubt for some types of forfeiture,257 the same standard imposed on theprosecution for criminal proceedings.258 Because of the punitive and

accountability.); Hadaway, supra note 86, at 113 (stating that CAFRA will not cure the

problems inherent in a policy that allows a roving executive branch to generate revenues by

means which are outside the normal democratic processes of political accountability).249 See supranotes197202 and accompanying text.250 See supranotes17577,19396 and accompanying text.251 See Austin v. United States, 509 U.S. 602, 614 (1993); Commonwealth v. One 1972

Chevrolet Van, 431 N.E.2d 209, 211 (Mass. 1982).252 See Commonwealth v. Fourteen Thousand Two Hundred Dollars, 653 N.E.2d 153, 157

(Mass. 1995).253Johnson, supranote8,at 1075.254 SeeEDGEWORTH, supranote9,at 13942. Thirteen states currently allow the government

to show merely probable cause to initiate some or all civil forfeiture proceedings. Id.255 Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185, 114 Stat. 202 (2000).256 EDGEWORTH, supra

basler: reforming civil asset forfeiture

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