Basler: Reforming Civil Asset Forfeiture

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 to
provide for the security of the individual and of his property. Despite
such pronouncements, many jurisdictions in the United States operate
under statutory frameworks that, rather than provide any form of security
for the individual, appear to actively undermine property rights. Motorists
are stopped and stripped of cash and valuables, homes are lost, and yet the
vast majority of civil forfeiture cases involve individuals who are never
even charged with a crime. The abuse of civil asset forfeiture has not gone
unnoticed, and in 2000, Congress passed the Civil Asset Forfeiture Reform
Act (CAFRA) which sought to correct many of the most glaring problems
with 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 states
civil asset forfeiture statute must be reformed to ensure that property
owners rights are respected.
This Note argues that Massachusetts current drug forfeiture law is
unfair to property owners and puts them at risk of erroneous deprivations
of private property. Massachusetts forfeiture law allows law enforcement,
including both police departments and district attorneys offices, to retain
the proceeds from seized property. This creates a structural conflict of
interest which provides police with an incentive to favor revenue
generation over law enforcement. Prosecutors are allowed to initiate
forfeiture 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.
665
666
New England Law Review
v. 49 | 665
property to illegal activity, while the propertys owner bears the burden of
proving the property is not subject to forfeiture. This leaves Massachusetts
property owners largely guilty until proven innocent. The states statutory
framework is based on obsolete federal law which has since undergone
significant reforms in an attempt to address some of these concerns. In
order to ensure property owners are treated fairly, Massachusetts must
update its civil forfeiture statute or, at a minimum, implement CAFRAs
core reforms.
INTRODUCTION
ccording to the Supreme Court, governments core function is to

provide for the security of the individual and of his property.1
Despite such pronouncements, many jurisdictions in the United
States operate under statutory frameworks that, rather than provide any
form of security for the individual, appear to actively undermine property
rights.2 Motorists are stopped and stripped of cash and valuables, 3 homes
are lost,4 and yet the vast majority of civil forfeiture cases involve
individuals who are never even charged with a crime. 5 Civil asset forfeiture
began as a means of ensuring that wrongdoers do not profit from illegal
activity, but over time has morphed into a system that often results in more
harm 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
FORFEITURE 9 (2010), available at http://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.).
2015
Massachusetts Civil Asset Forfeiture Reform
667
The abuse of civil asset forfeiture has not gone unnoticed, and in 2000,
Congress passed the Civil Asset Forfeiture Reform Act (CAFRA). 7 Through
CAFRA, 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 in
favor of individual property rights. 9 Massachusetts, however, has not been
a part of this trend and the states civil asset forfeiture statute must be
reformed to ensure that property owners rights are respected.10
Massachusetts current drug forfeiture law is unfair to property owners
and puts them at risk of erroneous deprivations of private property.11
Massachusetts forfeiture law allows law enforcement, including both
police departments and district attorneys offices, to retain the proceeds
from seized property.12 This creates a structural conflict of interest which
provides police with an incentive to favor revenue generation over law
enforcement.13 Prosecutors are allowed to initiate forfeiture proceedings
while offering virtually no evidence connecting the property to illegal
activity, while the propertys owner bears the burden of proving the
property is not subject to forfeiture.14 This leaves Massachusetts property
owners largely guilty until proven innocent. 15 The states statutory
framework is based on obsolete federal law which has since undergone
significant reforms in an attempt to address some of these concerns. 16 In
order to ensure property owners are treated fairly, Massachusetts must
update its civil forfeiture statute or, at a minimum, implement CAFRAs
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 infra Part VII.
11 See infra notes 207212 and accompanying text.
12 MASS. GEN. LAWS ch. 94C, 47(d) (2012).
14 See infra Part VI.B.
15 Michael F. Alessio, From Exodus to Embarrassment: Civil Forfeiture Under the Drug Abuse
Prevention and Control Act, 48 SMU L. REV. 429, 438 & n.60 (1995); see also infra notes 198200
and accompanying text.
16
See infra Part IV.B.
668
v. 49 | 665
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 have
attempted to address these concerns, particularly CAFRA. Part III outlines
civil asset forfeiture in Massachusetts under the States Controlled
Substances Act. Part IV reviews recent criticism of the statute and argues
that due to the lack of any substantive reforms the statute retains many of
the troubling aspects of the pre-CAFRA federal forfeiture law on which it is
based. Part V argues that the statutes self-funding provision creates a
structural conflict of interest by allowing law enforcement to retain the
proceeds from seized property. This conflict can alter law enforcement
preferences and practices, and places property owners at risk of civil
forfeiture abuse. Part VI argues that the statutes probable cause and
burden shifting components put property owners at risk of erroneous
deprivations of private property. Part VII argues that Massachusetts
forfeiture law should be reformed, using CAFRA as a guidepost, by
directing the proceeds from seized property to the States general fund to
increase legislative and political accountability, and by placing the burden
squarely 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 a

system of seizing property considered to be forfeited by its owner due to
the propertys connection with wrongdoing.18 The system operates under
the legal fiction of personified propertythe property itself is the guilty
party 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. See Jason 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-amodel-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 Asset
Forfeiture 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,
2015
669
asset forfeiture is to prevent individuals from receiving a windfall from

their illegal activities.20 Asset forfeiture is also intended to operate as a form
of deterrence by making crime less profitable. 21
Civil forfeiture proceeds only against the property in question and
usually through civil in rem proceedings.22 In a case of civil forfeiture, the
property owners guilt or innocence is irrelevant. 23 The property owner
need not even be charged with a crime for their property to be seized and
forfeit through civil forfeiture proceedings. 24 In fact, the propertys
connection to illegal activity may be the result of a third-partys
wrongdoing and have no nexus to the owners conduct.25 Civil forfeiture
must be distinguished from criminal forfeiture.26 Criminal forfeiture is a
system of punishing criminal defendants. 27 This form of forfeiture proceeds
as part of the governments case against a defendant, and property is not
forfeit 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 readily
traced to English law.30 English law allowed for forfeiture in three contexts:
deodand;31 forfeiture following conviction of treason or a felony; and
260 (2001); see Austin v. United States, 509 U.S. 602, 61516 (1993).
20 Higgins, supra note 9, at 77374.
21 McCaw, supra note 18, at 197.
22 Ross, supra note 19.
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, supra note 19; Dunn, supra note 5.

See Johnson, supra note 8, 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.).
25
26
See McCaw, supra note 18, at 19597 (comparing civil and criminal forfeiture, and the
advantages and disadvantages of each).
27
Id. at 193.
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).
28
30
See Austin v. United States, 509 U.S. 602, 611 (1993); Colero-Toledo, 416 U.S. at 68083.
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.
31
670
v. 49 | 665
statutory forfeiture.32 Statutory forfeiture, which required the forfeiture of

property used in connection with violation of certain statutes, was the form
of forfeiture carried into American law.33 Admiralty law provided the
foundation for civil forfeiture in the United States, 34 with statutes enacted
as early as the First Congress. 35 Forfeiture of ships through in rem
proceedings was used as a means to enforce customs laws and combat
piracy.36 This practice of punishing property used in connection with
statutory violations continues today and has expanded well beyond cargo
ships 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 its

humble beginnings in customs and admiralty law. 38 While civil asset
forfeiture can occur in a variety of contexts, 39 the system is most commonly
employed today in the war on drugs.40 In fact, the expansion of federal
Piety, supra note 29, at 92829.

32 Austin, 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).
33
Austin, 509 U.S. at 61213; see Colero-Toledo, 416 U.S. at 68083 (discussing the application
of forfeiture statutes by colonial-era courts); Johnson, supra note 8.
34 Piety, supra note 29, at 935 & n.109 (citing forfeiture under admiralty cases in American
courts as early as 1796).
35 Austin, 509 U.S. at 613; see also EDGEWORTH, supra note 9, 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, supra note 9, at 777 (stating that asset forfeiture was first used in the United
States to combat piracy on the high seas); Piety, supra note 29, at 940 (comparing the use of
civil forfeiture in piracy and customs cases).
37 See Colero-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 After Austin v. United States, Alexander v. United States, and United States v.
Good Real Property, 70 N.D. L. REV. 851, 851 (1994); see also EDGEWORTH, supra note 9, 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).
2015
671
forfeiture law largely coincides with the expansion of the war on drugs, 41
with asset forfeiture becoming a primary tool for drug law enforcement. 42
In 1970, Congress included asset forfeiture provisions in the
Comprehensive Drug Prevention and Control Act,43 which allowed for the
seizure of illicit drugs and property used in the manufacture or conveyance
of drugs.44 Since then, the scope of property subject to these forfeiture
provisions has expanded considerably,45 and now includes virtually all
forms of real or personal property.46
Arguably, the most significant expansion of federal drug forfeiture law
occurred in 1984 when Congress enacted a number of statutes that
expanded and restructured federal forfeiture law.47 The Comprehensive
Forfeiture Act of 198448 included an equitable sharing provision which
allowed federal law enforcement agencies to share the proceeds from
forfeited property with state and local law enforcement agencies. 49 This
sharing can occur in two ways: through joint investigations between state
and federal agencies or a federal agency adopting a state level seizure of
assets and proceeding with the forfeiture under federal law. 50 Also in 1984,
41 See Alison 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, supra note 44, at 81.
46 See 21 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.
47 JIMMY 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, supra note 9, at 65.
50 U.S. DEPT. OF JUSTICE, GUIDE TO EQUITABLE SHARING FOR STATE AND LOCAL LAW
ENFORCEMENT AGENCIES 6 (2009), available at http://www.justice.gov/usao/ri/projects/
esguidelines.pdf.
672
v. 49 | 665
Congress passed the Comprehensive Crime Control Act,51 which

drastically 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.53 The U.S. Department of Justice lists revenue
generation as one of the three primary goals of the federal asset forfeiture
program.54 Between 2003 and 2011 alone, approximately $11 billion in
seized assets was deposited into the Federal Asset Forfeiture Fund.55 In
2011 the Asset Forfeiture Fund reached $1.8 billion, the largest ever for a
single year.56 While federal forfeiture receives the lions share of attention,
states have been busy implementing and expanding their own civil
forfeiture systems as well.57
2.
State Level Civil Asset Forfeiture
Asset forfeiture at the state level is largely comparable to federal

forfeiture law in both scope and function, particularly with respect to drug
forfeiture law.58 The Uniform Controlled Substances Act,59 which was
initially adopted in more than forty states, was modeled on federal law and
contained substantially similar language. 60 While the Uniform Act
provided a common basis for state level drug forfeiture law, today there is
considerable variation among the states regarding such matters as
procedure, 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).
Ross, supra note 19, 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, supra note 41, at 115859.
55 U.S. GOVT ACCOUNTABILITY OFFICE, JUSTICE ASSET FORFEITURE FUND: TRANSPARENCY OF
BALANCES AND CONTROLS OVER EQUITABLE SHARING SHOULD BE IMPROVED 11 (2012), available
at http://www.gao.gov/assets/600/592349.pdf.
52
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/obamapolice-militarization_n_3566478.html.
57 Higgins, supra note 9, 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, supra note 9, 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
60
Uniform Controlled Substances Act of 1970, 21 U.S.C. 812 (2014).

GURULE & GUERRA, supra note 47, at 359.
2015
673
property and its proceeds.61 However, despite these differences, state level
civil forfeiture is used extensively in the war on drugs and provides state
and local law enforcement agencies with a significant source of funding. 62
The limited data available indicates that, in addition to the amounts seized
by federal agencies, state and local law enforcement seized approximately
$1 billion in assets between 2000 and 2003 alone.63 State and local law
enforcement agencies are also increasingly likely to participate in the
federal equitable sharing program, which increases the number of
forfeiture cases that proceed under federal, rather than state, civil forfeiture
law.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. 65
Criticism of civil asset forfeiture falls largely into two categories:
constitutional due process concerns66 and criticism of law enforcements
ability to retain seized property and its proceeds.67 One of the most
common criticisms of forfeiture law involves the low burden of proof
placed upon the government in civil forfeiture proceedings. 68 Under many
61 See, e.g., EDGEWORTH, supra note 9, at 3545 (analyzing state forfeiture statutes and how
they compare to federal forfeiture); GURULE & GUERRA, supra note 47, at 35976 (discussing
differences between various state drug forfeiture laws).
62 See WILLIAMS ET AL., supra note 2, 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 of
property 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; see Moores, supra note 49, at 795.

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.).
65
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, supra note 42, 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, supra note 8, at 1058
(stating that the inequitable burden of proof was one of the most problematic aspects of
674
v. 49 | 665
statutes, police need only show probable cause that the property is
connected to illegal activity in order to initiate forfeiture proceedings. 69 In
contrast, the property owner faces a higher burden, usually a
preponderance of the evidence, to show that their property is not subject to
forfeiture.70 Additionally, there is concern over the impact that civil
forfeiture systems have on innocent property owners. 71 The guilt or
innocence of the property owner is largely irrelevant, meaning that
property can be forfeited due to the actions of a third party that occurred
without the property owners knowledge or consent.72 Many statutes
provide property owners with an express innocent owner defense.73
However, these defenses are not uniform in their requirements, scope, and
availability.74 Many of the various procedural requirements under civil
forfeiture statutes are also criticized as being overly burdensome on
property owners, such as lack of representation for the indigent, filing
deadlines, and bond requirements. 75
Another criticism of modern civil asset forfeiture is the manner in
which the seized property or its proceeds are utilized.76 Under federal
statute and forty-two state forfeiture laws, law enforcement agencies retain
the proceeds from seized property.77 This practice, combined with the
federal equitable sharing program, can provide a much needed source of
federal forfeiture law prior to reforms).

69
See GURULE & GUERRA, supra note 47, at 113; Higgins, supra note 9, at 787.
Ross, supra note 19, at 265; see also GURULE & GUERRA, supra note 47, at 125 (discussing
the burden shifting that occurs in civil in rem forfeiture proceedings).
70
71 See Ross, supra note 19, at 265 (discussing the risk of erroneous deprivations to innocent
property owners); see also Piety, supra note 29, 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 See Johnson, supra note 8, 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 See EDGEWORTH, supra note 9, at 16673 (comparing state-level statutory innocent owner
defenses); Higgins, supra note 9, 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 See Ross, supra note 19, at 26768 (discussing the difficult procedural hurdles property
owners must face when challenging a seizure).
76
77
See Johnson, supra note 8, at 1069.

See WILLIAMS ET AL., supra note 2, at 17; Ross, supra note 19, at 27071.
2015
675
revenue for law enforcement agencies that may otherwise lack funding.78
However, this practice is criticized as creating a conflict of interest where
law enforcement agencies may be more interested in raising revenue than
enforcing the law.79 Concerns over abuse of federal forfeiture laws and lack
of due process protections for property owners led to the passage of
CAFRA.80
B. Reform Efforts and the Civil Asset Forfeiture Reform Act of 2000
Criticism of civil asset forfeiture on the federal level appears to have
reached its height in the 1990s, resulting in Congress implementing some
reforms through CAFRA.81 The Act contained the most comprehensive
reforms of federal forfeiture law ever implemented. 82 Responding to many
of the due process and procedural concerns discussed above, Congress
sought to make the federal forfeiture system more fair for property
owners.83 CAFRA contained a number of significant reforms to federal
forfeiture law, including: placing the burden squarely on the government
to prove the propertys connection to criminal activity; providing
representation for indigent property owners; and imposing additional
procedural and notice requirements on federal agencies once an
individuals property is seized.84 Under CAFRA, the burden of proof
placed upon the government was increased from probable cause to a
preponderance of the evidence.85 This arguably remedies the inequitable
burdens of proof that existed under the prior law. 86 CAFRA also clarified
78 See Solomon, supra note 41, 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, supra note 5 (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, supra note 49, at 782.

Higgins, supra note 9, 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 See Statement 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.
84 Johnson, supra note 8.
85 Civil Asset Forfeiture Reform Act, Pub. L. No. 106-185, 114 Stat. 202 (2000); Moores, supra
note 49, at 78283.
81
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
676
v. 49 | 665
the statutory innocent owner defense and made it uniform across the
various federal forfeiture laws. 87 However, CAFRA did not alter federal
law enforcements ability to retain the proceeds from seized property. 88
Consequently, this has remained a concern for critics of civil forfeiture and
has resulted in a call for additional reforms.89
Numerous states have also implemented reforms of their own
forfeiture statutes following CAFRA.90 For example, many states now place
a greater burden on law enforcement to prove the propertys connection to
illicit activity.91 Some states, like federal law under CAFRA, require the
government to prove its case by a preponderance of the evidence, while
others go as far as requiring proof by clear and convincing evidence. 92 Like
federal forfeiture law, state laws in forty-two states currently allow law
enforcement agencies to retain the proceeds from seized property. 93
III. Civil Asset Forfeiture in Massachusetts: The Controlled Substances
Act
The primary civil asset forfeiture statute in Massachusetts, Mass. Gen.
Laws ch. 94C 47, is found within the states Controlled Substances Act.94
Enacted in 1971, the Act was based largely upon existing federal drug
forfeiture law.95 Accordingly, there are substantial similarities between
Massachusetts drug forfeiture law and pre-CAFRA federal law.96 Section 47
allows for law enforcement to seize property, including money as well as
real and personal property, which is used or intended to be used in
(2000).
87
Johnson, supra note 8, at 1079.

Moores, supra note 49, at 78384.
89 See Higgins, supra note 9, at 77374 (stating that more reform is needed to remove the
financial incentive for law enforcement to engage in civil asset forfeiture); Moores, supra note
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.).
88
90
Higgins, supra note 9, at 783.

See EDGEWORTH, supra note 9, at 13942 (comparing state-level burdens of proof).
92 See id.
93 WILLIAMS ET AL., supra note 2, at 17.
94 See MASS. GEN. LAWS ch. 94C, 47 (2012).
95 See Dist. 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).
91
96 Compare MASS. GEN. LAWS ch. 94C, 47 (current Massachusetts drug forfeiture law), with
Johnson, supra note 8, at 107980 (citing the pre-CAFRA version of 21 U.S.C. 881(a) (2012)).
2015
677
violation of the states drug laws.97 The property seized usually consists of
cash or funds; however, any form of real or personal property can be
seized, such as cars, boats, and homes or other real property.98 The
individual need not be charged or convicted of any crime. 99 Instead, police
are only required to show probable cause that the property is related to or
derived from criminal activity.100 Once probable cause is shown, the
burden is then placed on the property owner to prove, by a preponderance
of the evidence, that the property is not forfeit.101
The Massachusetts statute contains a limited innocent owner defense
and states that property is not subject to forfeiture unless the owner
thereof knew or should have known that such conveyance or real property
was used in and for the business of unlawfully manufacturing, dispensing,
or distributing controlled substances.102 However, this defense is only
available for property owners whose property is subject to forfeiture under
the argument that it facilitated a drug offense. 103 The defense is arguably
not available to property owners when their property is alleged to be
traceable to, or the proceeds of, a drug offense.104
Massachusetts is among the forty-two states that allow law
enforcement agencies to retain seized property or its proceeds. 105 In
Massachusetts, 100% of the proceeds of property seized under the
Controlled Substances Act are retained by law enforcement: half are
distributed to the local police department that seized the property, and the
other half is distributed to the appropriate district attorneys office.106
Between 20092011, an estimated $33.6 million was seized by law
enforcement in Massachusetts.107
97
MASS. GEN. LAWS ch. 94C, 47; Mitchell, supra note 95.
See Mitchell, supra note 95, at 141 & n.6.
99 See MASS. GEN. LAWS ch. 94C, 47.
100 Id. 47(d); Commonwealth v. One 2004 Audi Sedan Auto., 921 N.E.2d 85, 89 (Mass.
2010); Mitchell, supra note 95.
98
101
See MASS. GEN. LAWS ch. 94C, 47; Mitchell, supra note 95, at 142.
See MASS. GEN. LAWS ch. 94C, 47(c)(3).
103 Mitchell, supra note 95, at 142.
104 Id.
106 MASS. GEN. LAWS ch. 94C, 47; Jessica Trufant & Laura Krantz, Drug Money Pads DA,
Police Budgets, THE METROWEST DAILY NEWS (Feb. 17, 2013, 5:05 PM) http://
102
www.metrowestdailynews.com/article/20130217/news/302179928.
107 Trufant & Krantz, supra note 106.
678
v. 49 | 665
ANALYSIS
IV. Massachusetts Drug Forfeiture Law is Outdated and in Need of
Reform
While the Massachusetts Controlled Substances Act, the states
primary civil forfeiture statute, is based largely upon federal forfeiture
law,108 it has not undergone any significant reforms comparable to those
implemented under CAFRA.109 Accordingly, Massachusetts forfeiture law
maintains many of the most troubling aspects of civil forfeiture systems,
including a low burden of proof for law enforcement, 110 procedural hurdles
and burdens for property owners, 111 and inadequate protection for
innocent individuals.112 Additionally, Massachusetts forfeiture law creates
a structural conflict of interest that provides law enforcement with an
incentive to seize private property.113 Because of these out of date
provisions, civil asset forfeiture in Massachusetts is unfair to property
owners and leaves them open to abuse or erroneous deprivations of private
property.114
A. Recent Criticism of Civil Forfeiture in Massachusetts
Recent criticism of Massachusetts forfeiture law has cited the states
low burden of proof and the retention of seized property by law
enforcement as areas of concern. 115 In 2010, the Institute for Justice released
a report, Policing for Profit: The Abuse of Civil Asset Forfeiture, which
analyzed state-level civil asset forfeiture statutes around the country and
108
Commonwealth v. Brown, 925 N.E.2d 845, 852 (Mass. 2010).

See infra Part IV.B.
110 See MASS. GEN. LAWS ch. 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).
109
111
See MASS. GEN. LAWS ch. 94C, 47 (shifting the burden of proof from the state to the
property owner).
112 See Mitchell, supra note 95, at 142 (stating that the states innocent owner defense is not
available to all property owners).
113 See MASS. GEN. LAWS ch. 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
See Ross, supra note 19, at 26670 (describing pre-CAFRA federal forfeiture law and how
it leads to erroneous deprivations of private property); see also infra Part 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-forfeiturelaws-receive-f-grade/; Trufant & Krantz, supra note 106.
2015
679
issued grades to each state accordingly.116 According to the report, six

states including Massachusetts received failing grades for their forfeiture
statutes, and property owners in Massachusetts are said to be guilty until
proven innocent.117 In addition, the State Auditor released a number of
reports in 2013 that called for improved transparency and procedural
changes with regard to the receipt, expenditure, and reporting of
forfeited property within a number of district attorneys offices.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 not
implemented corresponding CAFRA reforms.119 A ballot initiative in 2000
attempted to change the way forfeited property and funds are used, but
this initiative was ultimately unsuccessful and excluded from the ballot by
the States Attorney General.120 Any recent attempts at legislative reform
have been scarce and largely focused on utilizing a portion of the funds
retained 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 in
Property Seizures
Under state forfeiture law, the law enforcement agencies that engage in
the seizure of private property ultimately become the direct beneficiaries of
the system, because the seized property or its proceeds are retained by the
116
WILLIAMS ET AL., supra note 2, at 41.

Id. at 65.
118 See COMMONWEALTH OF MASSACHUSETTS OFFICE 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 OFFICE 12 (2013), available at http://www.mass.gov/auditor/docs/audits/2013/
117
201212643j.pdf.
119 Compare MASS. GEN. LAWS ch. 94C, 47 (2012) (Massachusetts drug forfeiture law), with
21 U.S.C. 881, 853 (2012) (current federal drug forfeiture law); see also 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).
120
See Mazzone v. Atty Gen., 736 N.E.2d 358, 36566 (Mass. 2000).
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.
121
680
v. 49 | 665
agencies that conducted the seizure.122 This practice is consistent both with
federal law123 and the laws of an overwhelming majority of states. 124 This
results in seized property becoming a revenue source for law enforcement
agencies, providing them with a financial incentive to initiate forfeiture
proceedings.125
A. The Disposition of Seized Property Under MASS. GEN. LAWS. Ch.
94C, 47
The disposition of property seized pursuant to the Massachusetts
Controlled Substances Act is delineated by the language of the statute
itself.126 Section 47 of Chapter 94C provides that, once a court issues a final
order declaring the property in question to be in forfeit, the property is
conveyed to the state for official use by an authorized law enforcement or
other public agency, or sale at public auction or by competitive bidding.127
If the property is sold, the proceeds are first used to pay for the forfeiture
proceedings.128 Any remaining proceeds are distributed equally between
the prosecuting district attorney or attorney general and the city, town or
state police department involved in the seizure.129
The use of seized property or its proceeds is subject to few
limitations.130 The statute establishes separate trust funds, one for district
attorneys and another for police departments, into which the proceeds
from seized property are deposited.131 Monies are expended from both
funds without further appropriation and can be used to defray the costs
of protracted investigations, to provide additional technical equipment or
122
MASS. GEN. LAWS ch. 94C, 47(d).

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).
123
124
See, e.g., WILLIAMS ET AL., supra note 2, at 17.

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, supra note 42, at 1635; Higgins, supra note 9, at
77879.
125
126 MASS. GEN. LAWS ch. 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 also Dist. 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).
See id.; see also Dist. Atty for the Nw. Dist., 892 N.E.2d at 713 (describing the trust funds
established pursuant to 47(d)).
131
2015
681
expertise, to provide matching funds to obtain federal grants, or [to

accomplish] such other law enforcement purposes as the district attorney or
[chief of police] deems appropriate.132 District 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 of
expenditures.133 Police departments can appropriate funds for any of the
purposes listed above, but may not use the funds to directly supplement
their operating budgets.134
B. Allowing Law Enforcement to Retain the Proceeds from Seized
Property 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 the
ability to retain seized property or its proceeds.135 States soon followed this
lead, and now civil forfeiture laws in all but eight states remit the proceeds
of seized property back to the law enforcement agencies that initiated the
seizure.136 Utilizing seized property as a funding mechanism for law
enforcement agencies gives these agencies an enormous economic stake
in the process.137 This economic stake results in an incentive for law
enforcement to engage in asset forfeiture as a means of generating
revenue.138 In fact, the use of civil asset forfeiture as a tool to combat crime
increased once law enforcement was given a financial stake in the
process.139 Revenue generation has been cited as a primary purpose behind
the federal asset forfeiture program. 140
132
47(d) (emphasis added).

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, supra note 86, at 93; Higgins, supra note
9, at 779.
133
136
See WILLIAMS ET AL., supra note 2, at 17.

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.).
137
138
Chi, supra note 42, at 1635; Higgins, supra note 9, at 77879.

See Blumenson & Nilsen, supra note 135, 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., supra note 2, at 11; Dunn, supra note 5.
140 U.S. DEPT. OF JUSTICE, GUIDELINES ON SEIZED AND FORFEITED PROPERTY 1 (1990), available
at http://www.justice.gov/ag/readingroom/seized.htm
139
(The Department of Justice asset forfeiture program has three primary
682
v. 49 | 665
Revenue generation is not an evil by itself, and supporters of civil asset

forfeiture may rightly argue that revenue generation is a legitimate
government interest.141 Forfeiture proceeds enable law enforcement
agencies to augment their budgets, and can allow them to purchase assets
or utilize resources that may otherwise be out of their financial reach. 142
Revenue sources for law enforcement are particularly important during
recessions and other times of fiscal belt-tightening.143 Additionally,
allowing state and local law enforcement to receive a share of the proceeds
from federal forfeitures through the federal equitable sharing program has
arguably led to increased cooperation between federal and state-level law
enforcement agencies.144
However, it is not the prospect of revenue generation itself that causes
problems, but the resulting alteration in law enforcement behavior. 145
While increased revenue can improve the ability of law enforcement
goals: (1) to punish and deter criminal activity by depriving criminals of
property 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, supra note 41, 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, supra note 41, 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 also Budget 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, supra note 41, at 1174.

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, supra note 42, at 1645.
145
2015
683
agencies to do their jobs, it can also change[] the nature of the job itself.146
The financial incentive can result in a distortion of law enforcement
policies where the seizure of assets displaces other law enforcement
priorities.147 For example, police departments have increasingly resorted to
reverse stings, where they target drug buyers rather than drug dealers.148
The police are then able to seize the buyers money, which is more
lucrative for police departments than seizing a dealers drugs, but this does
little to disrupt the supply of illicit drugs.149 Police departments have also
been known to encourage arrests on high-priced pieces of real property
with the goal of enabling them to then seize that property through
forfeiture proceedings.150 The possibility of police officers and prosecutors
being more interested in financial gains than criminal justice has been
characterized as one of the most serious threats to personal liberty in U.S.
history,151 and the most intuitively obvious problem with modern civil
asset forfeiture systems.152
To the credit of law enforcement agencies in Massachusetts, the most
egregious examples of asset forfeiture abuse appear to occur in other
states.153 However, the conflict of interest inherent in the states drug
forfeiture law is very real, and it should not take headline-grabbing police
misconduct before reforms are pursued. 154 One recent case involved an
individual, Franklin Diaz, who delivered more than ten thousand dollars
to the Woburn police department in an attempt to bail out an employee
and family friend.155 Instead of releasing his friend, police told Diaz that the
funds had been seized after a K-9 unit alerted police to the presence of
narcotic residue on the money.156 Luckily for Diaz, a Superior Court judge
ruled that the canine alert by itself was not enough for the police officers to
show probable cause that the money was related to, or the proceeds from,
146
Blumenson & Nilsen, supra note 135, at 56.

Chi, supra note 42, at 1645.
148 Blumenson & Nilsen, supra note 135, at 67.
149 See Blumenson & Nilsen, supra note 135, at 56; Chi, supra note 42, at 164546.
150 See Ross, supra note 19, at 27273.
151 Hadaway, supra note 86, at 92.
153 See, e.g., WILLIAMS ET AL., supra note 2, 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).
147
155
156
Id. at 111.
Id.
684
v. 49 | 665
an illegal drug transaction.157 Despite the positive outcome, this case is

illustrative in that it shows the ease with which police engage in property
seizure.158 If the amount in question had been less, the police may well
have succeeded in subjecting the bail money to forfeiture and avoided
judicial review of a practice that may very well be routine. 159 The financial
incentive to engage in the seizure of private property is exacerbated by
other provisions of the Controlled Substances Act that heavily favor the
success of civil forfeiture proceedings and act as roadblocks for innocent
property owners.160
VI. Massachusetts Civil Forfeiture Law is Unfair to Property Owners and
Places Them at Risk of Erroneous Deprivations of Private Property
The civil forfeiture provisions of the Massachusetts Controlled
Substances Act are largely modeled after the federal civil forfeiture law
that was in effect at the time of the Acts passage.161 Since that time, federal
forfeiture law underwent significant reforms through Congresss passage
of the CAFRA,162 which contained the most comprehensive reforms of
federal forfeiture law ever implemented.163 The Massachusetts statute,
however, has not undergone similar reforms164 and still maintains many of
the more troubling aspects of pre-CAFRA federal forfeiture law,165
including: a low burden of proof for law enforcement to initiate forfeiture
157
Id. at 11112.
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. See Solomon, supra 41, 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 the
near 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).
158
160
See Ross, supra note 19, at 26670 (describing pre-CAFRA federal forfeiture law and how
it leads to erroneous deprivations of private property); see also infra Part VI.
161 See Dist. Atty for the Nw. Dist. v. E. Hampshire Div. of the Dist. Ct. Dept, 892 N.E.2d
710, 714, 717 (Mass. 2008); Mitchell, supra note 95.
162 See supra notes 8184 and accompanying text.
163 Cassella, supra note 82.
164 See supra Part IV.B.
165 Compare MASS. GEN. LAWS ch. 94C, 47 (2012) (current Massachusetts drug forfeiture
law), with Johnson, supra note 8, 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).
2015
685
proceedings;166 burden shifting, which requires the property owner to

prove a negative;167 and a lack of procedural or systemic safeguards to
protect indigent property owners.168 These provisions result in a civil
forfeiture system that is unfair to property owners and allow for erroneous
deprivations of private property.169
A. A Probable Cause Standard is Too Low and Encourages Law
Enforcement to Initiate Forfeiture Proceedings
The burden of proof placed upon the government to initiate civil
forfeiture proceedings in Massachusetts is extremely low and places
property owners at risk of erroneous deprivation of private property. 170 In
order to seize property and subject it to forfeiture, the government need
only show probable cause that the property is related to or derived from
criminal activity.171 This is not to say that the government must prove by
probable cause that the property is forfeit, but instead the government
must only show the existence of probable cause to institute the action.172
This distinction is important and illustrative of the problems that property
owners 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, supra note 15, 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 Compare MASS. GEN. LAWS ch. 94C, 47 (placing the burden on the property owner to
prove the property in question is not forfeit), with Higgins, supra note 9, at 787 (stating that,
following CAFRA, the burden is on the government to prove that the property is subject to
forfeiture).
168 Compare Memorandum 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 ASSN app. 4 (2008), available at https://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), with 18 U.S.C. 983(b) (2012) (providing appointment of
counsel in civil forfeiture proceedings for certain indigent defendants).
169 See Ross, supra note 19, 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. LAWS ch. 94C, 47 (2012); Commonwealth v. One 2004 Audi Sedan Auto.,
921 N.E.2d 85, 89 (Mass. 2010); Mitchell, supra note 95, at 141.
172
47(d) (emphasis added).

See Alessio, supra note 15, 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
173
686
v. 49 | 665
According to the Massachusetts Supreme Judicial Court (SJC), this

burden is similar to [the governments] burden in seeking an indictment
and less than its burden at a probable cause hearing to determine whether
someone should be held for trial.174 This burden of proof is characterized
as the lowest burden that can be imposed under American law. 175 Under
this standard, as before a grand jury when seeking a criminal indictment,
the government may offer hearsay evidence in support of the property
seizure.176 In fact, the burden on law enforcement is so low that it requires
less than prima facie proof, meaning the government can meet this burden
even when offering evidence that would otherwise be insufficient to prove
its case at trial.177
The inclusion of a probable cause standard is not without its
rationale.178 The policy justification for the civil forfeiture process is that the
system is necessary to deprive criminals of their ill-gotten gains.179 To
accomplish this, law enforcement must be able to initiate the forfeiture
proceedings, and the statutes probable cause standard is clearly included
for that purpose.180 The probable cause standard here is the same standard
to which the prosecution would be held in seeking a criminal indictment,
meaning the property and the propertys owner would both be subject to
the same standard.181 In addition, post-seizure remedies can be employed
to help ensure due process,182 possibly reducing the propertys seizure to a
temporary 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, supra note 15, at 437.

One 2004 Audi Sedan Auto., 921 N.E.2d at 89.
177 Fourteen Thousand Two Hundred Dollars, 653 N.E.2d at 15758.
179 Higgins, supra note 9, at 77374.
180 See MASS. GEN. LAWS ch. 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).
176
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 the
connection between the property and the alleged illegal drug activity).
183
2015
687
combined with shifting the burden to the property owner to prove the
property 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 on
Property Owners, Effectively Making Them Guilty Until Proven
Innocent
Under 47, once the government shows there is probable cause to
initiate forfeiture proceedings, the burden shifts to the property owner to
prove that the property is not subject to forfeiture.185 This burden shifting is
the same mechanism that was utilized by pre-CAFRA federal forfeiture
law.186 Shifting the burden to the property owner is relatively unique to
civil forfeiture law.187 Criminal proceedings place the burden squarely on
the government, the party initiating the judicial proceedings, to prove its
case beyond a reasonable doubt. 188 Civil cases likewise place the burden on
the plaintiff, the party initiating the action, to prove its case by a
preponderance of the evidence.189 This makes civil forfeiture proceedings
unique because the property owner, who is analogous to a defendant in a
civil action, bears the burden of proof.190
This type of burden shifting under civil forfeiture law has been
described as inequitable.191 Because forfeitures are civil in rem proceedings,
lowering the governments burden of proof to probable cause does not
violate due process.192 The government is effectively reducing its own
184
Alessio, supra note 15, at 438.

MASS. GEN. LAWS ch. 94C, 47(d); see also Fourteen 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).
185
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, supra note 15, at
437.
189
GURULE & GUERRA, supra note 47, at 113.

See All Assets of Statewide Auto Parts, Inc., 971 F.2d at 903 (comparing burdens of proof in
civil forfeiture and criminal proceedings); GURULE & GUERRA, supra note 47, at 113 (comparing
burdens of proof in a standard civil case to civil forfeiture proceedings).
190
191 See Johnson, supra note 8, at 1058 (stating that perhaps the most problematic preReform Act part of the civil forfeiture statute was the inequitable burden of proof).
192
Alessio, supra note 15, at 437; see, e.g., United States v. $2,500 in U.S. Currency, 689 F.2d
688
v. 49 | 665
burden of proof to the lowest possible level,193 while simultaneously raising

the burden of proof on property owners to something higher than would
otherwise be placed upon them in either criminal or civil proceedings.194
The result of the shift is that the burden is effectively placed upon the
claimant from the outset of the trial.195 This makes it easier for the
government to initiate forfeiture proceedings but more difficult for
property owners to defend their property.196
The negative effect of this burden shift is compounded by requiring
property owners to prove by a preponderance of the evidence that their
property is not subject to forfeiture.197 This results in property owners not
only having to prove their case by a higher standard, but also requires that
they prove a negative.198 The Massachusetts statute includes a limited
innocent owner defense and states that [n]o conveyance or real property
shall be subject to forfeiture unless the owner[s] thereof knew or should
have known that their property was being used to facilitate a drug
offense.199 This imposes a standard that is all but impossible to meet
because the owner must prove that he lacked both control over and
knowledge of the propertys unlawful usenegatives that are often
impossible to prove.200 This 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 supra notes 175177 and accompanying text.

Alessio, supra note 15, at 438; see also supra notes 187190 and accompanying text.
195 Alessio, supra note 15, 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).
194
197
See United 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 note 19, at 265; see also Guerra, supra note 45, 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. LAWS ch. 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).
2015
689
to a property owner whose innocence is largely irrelevant. 202

The unfairness of the burden shift becomes evident when paired with
the governments low burden of proof.203 Commonwealth v. Eight Thousand
Dollars in U.S. Currency is illustrative.204 Here, the property owner was
stopped for speeding, and $8,000 in cash was subsequently seized by a
police officer who believed the money was connected to a drug
transaction.205 The seizure was predicated upon the claimants prior history
of drug offenses, but the claimant was not charged with any drug offenses
related to the traffic stop.206 Instead, the claimant was charged with traffic
violations and driving without a valid license. 207 At trial, certain facts were
established by admission, including that the state: (1) could not provide
any direct evidence establishing that the money was connected to drug
activities; (2) did not know whether the money was proceeds of drug
activities; (3) did not know how the claimant came into possession of the
money; (4) did not know whether the money was proceeds from a personal
injury settlement and could not establish that it was not proceeds from a
personal injury settlement; and (5) confirmed the claimant had recently
settled a personal injury case for $8,019.28.208 Despite not being able to
prove any direct connection between the claimants money and illegal
activity, the government prevailed and the property was deemed forfeit.209
This outcome is the result of the governments ability to offer less than
prima facie evidence in support of its claim,210 while forcing the claimant to
bear the burden of proving that his own money was not illegally
202 See Bennis 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, supra note 19, 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
See id. 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.
Id.
207 Id.
208 Id. at 104.
209 See Eight Thousand Dollars in U.S. Currency, 20 Mass. L. Rptr. at 10506.
210 See Commonwealth v. Fourteen Thousand Two Hundred Dollars, 653 N.E.2d 153, 157
58 (Mass. 1995).
206
690
v. 49 | 665
obtained.211 Even though the property owner could prove he settled a

personal injury claim for nearly the exact amount seized, and had provided
an 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 not
enough that [the claimant] advanced some explanation. . . . he has the
affirmative burden to present credible evidence to support [his] defense of
[an] alternate legitimate source [of the $8,000].213 It is difficult to view a
forfeiture system as fair when it enables law enforcement to seize private
property and subject it to forfeiture when the government is effectively
required to prove nothing.214 In criminal cases, defendants are presumed
innocent until proven guilty,215 but under the Massachusetts Controlled
Substances Act it appears that property owners are guilty until they prove
their own innocence.216
C. Civil Forfeiture in Massachusetts Increases the Likelihood of
Erroneous Deprivations of Private Property
As it currently stands, the Massachusetts Controlled Substances Act
puts property owners at risk of erroneous deprivations of property. 217 The
deficiencies in the statute are exacerbated by the fact that property
forfeitures are largely carried out as civil in rem proceedings.218 In forfeiture
proceedings, the government is attacking the property and not the person,
and property owners cannot avail themselves of the procedural and due
process protections that accompany criminal prosecutions.219 For example,
211 See Eight Thousand Dollars in U.S. Currency, 20 Mass. L. Rptr. at 10506; Ross, supra note
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, supra note 15, 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, supra note 15 (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. LAWS ch. 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 the
circumstance that this is a civil proceeding . . . .).
219
See United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 903 (1993).
2015
691
property owners do not have a constitutional right to appointed counsel.220

In Massachusetts, indigent civil defendants do have limited access to court
appointed representation, but this access does not include representation
for civil forfeiture proceedings. 221 This leaves property owners to either hire
their own attorney or to navigate the judicial system on their own. 222
The inequity in burdens of proof makes challenging forfeitures
extremely difficult, particularly for indigent property owners whose
property may be worth less than the cost of challenging the forfeiture.223 An
overwhelming majority of forfeiture proceedings result in a default
judgment in favor of the government, with some estimates as high as 80-90
percent.224 The procedural intricacies of the judicial system can become
insurmountable hurdle[s] for poor claimants, particularly if their cash or
assets have just been seized by law enforcement.225 Alternatively, a simple
cost-benefit analysis may cause some property owners to simply forego
even challenging the property forfeiture.226 If the cost of hiring an attorney
is greater than the value of the seized property, then the property owner is
likely to lose regardless of the cases outcome.227 Allowing the government
to initiate forfeiture proceedings with virtually no direct evidence, and
placing the burden on property owners to prove their propertys
innocence, combined with the time and costs involved in defending a
forfeiture action, results in a high risk of erroneous deprivations of private
property.228
VII. Proposed Reforms
The Massachusetts Controlled Substances Act needs to be reformed to
220
Guerra, supra note 45, at 364.

See GIDEONS NEW TRUMPET, supra note 168, at 7 (listing the types of civil proceedings in
Massachusetts that are accompanied by a right to appointed counsel).
221
222
See Ross, supra note 19, at 26768; Guerra, supra note 45, at 36364.
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 note 135, 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).
223
225

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.).
226
692
v. 49 | 665
ensure that the system operates in a manner that is both fair to property
owners and free of improper incentives for law enforcement. 229 At a
minimum, the conflict of interest inherent in the statutes self-funding
mechanism should be removed by subjecting the proceeds from seized
property to legislative appropriation.230 To ensure greater due process
protections for property owners, the burden should be placed squarely on
the government to prove its case, rather than shifting the burden to
property owners.231 The State should also strongly consider providing
indigent property owners with appointed counsel to ensure that the costs
involved with challenging forfeiture proceedings do not result in
erroneous deprivations of private property. 232 These reforms are not only
realistic, but many have already been implemented on both the state and
federal level.233
A. The Proceeds from Seized Property Should Be Subject to Legislative
Appropriation
Removing the structural conflict of interest inherent in the Controlled
Substances Act will help ensure that law enforcement in Massachusetts
remains focused on enforcing the law rather than padding their budgets. 234
The clearest way to remedy this conflict is to require the proceeds from
seized property to be deposited into the states general fund and subjecting
the money to legislative appropriation.235 This helps to resolve the conflict
in two ways: first, it removes the direct financial incentive that law
enforcement currently faces; second, it helps ensure greater oversight and
transparency within the civil forfeiture system.236 Currently, the states
229
See infra Parts VII.A and VII.B.

See Moores, supra note 49, at 79899 (suggesting post-CAFRA reforms to remove the
systemic conflict of interest under federal forfeiture law).
231 Johnson, supra note 8, at 1075 (Potentially, the most important part of the Reform Act is
the change it makes to the government's burden of proof.).
230
232
See Ross, supra note 19, at 27475 (discussing the importance of including appointment
of counsel for indigent property owners under CAFRA).
233 Johnson, 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, supra note 9, 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, supra note 135, 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
236
See Blumenson & Nilsen, supra note 135, at 109; Higgins, supra note 9, at 796.
Blumenson & Nilsen, supra note 135, at 109.
2015
693
district attorneys share in the proceeds realized from seized property. 237
This raises concerns about the impartiality of those tasked with pursuing
the forfeiture proceedings.238 Requiring that the funds be subjected to
legislative appropriation would increase oversight and ensure greater
political accountability for the civil forfeiture system as a whole. 239 Despite
being the most obvious reform,240 the financial incentive component of
federal forfeiture law was not addressed by CAFRA. 241 As a result, there
are continued calls for federal reforms to address this issue. 242
That this reform was not included in CAFRA does not make it any less
feasible.243 In fact, prior to the Comprehensive Crime Control Act of 1984,
the proceeds from seized property were deposited in the U.S. Treasurys
general fund.244 Eight states currently operate civil forfeiture systems that
do not allow law enforcement to retain the proceeds from seized
property.245 In addition, reform efforts are underway in a number of
jurisdictions that currently operate with this conflict of interest.246
Accordingly, there is statutory and legislative precedent around the
country that supports the implementation of this reform.247 Removing the
conflict of interest inherent in Massachusetts civil forfeiture law is all the
more important because the failure to do so may jeopardize the
effectiveness 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, supra note 135, at 6872.
239 Chi, supra note 42, at 1647, 1665, 1668.
241 See Civil Asset Forfeiture Reform Act, Pub. L. No. 106-185, 19, 114 Stat. 202, 22324
(2000); Hadaway, supra note 86, at 87.
242
See Moores, supra note 49, at 79798.

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, supra note 86, at 93.
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-nowbut-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.
248 See Chi, supra note 42, 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
243
694
v. 49 | 665
B. The Burden Must Be Placed Firmly on the Government to Prove

That the Property in Question Is Subject to Forfeiture
To ensure the civil forfeiture system treats property owners fairly, the
burden must be placed on the government to prove that the property is
subject to forfeiture.249 Placing the burden on individuals to prove that their
property is not subject to forfeiture tilts the system in favor of the
government and increases the likelihood of an erroneous deprivation of
property.250 Civil asset forfeiture may be carried out through civil
proceedings, but its purpose is punitiveit is to punish property owners
who have engaged in illegal activity.251 Before imposing punishment on an
individual, the government should be held to a standard higher than less
than prima facie proof.252 Removing the burden shifting component of
federal forfeiture law is cited as the most important reform implemented
under CAFRA.253
By maintaining a probable cause standard, Massachusetts is now in the
minority of jurisdictions relative to burdens of proof for asset forfeiture
proceedings.254 CAFRA placed the burden on the federal government to
prove by a preponderance of the evidence that the property is subject to
forfeiture.255 Additionally, thirty-eight states require showing more than
probable cause either for all forfeitures or those seeking the forfeiture of
real property, with a recent trend of requiring clear and convincing
evidence.256 Two states go as far as requiring proof beyond a reasonable
doubt for some types of forfeiture,257 the same standard imposed on the
prosecution 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).
250 See supra notes 17577, 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).
253

See EDGEWORTH, supra note 9, 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 note 9.
257 Id. Tennessee imposes this burden on the prosecution when seeking the forfeiture of real
property. Id. at 143. California requires proof beyond a reasonable doubt for cash forfeitures
less than $25,000. Id.
254
258
See supra note 188 and accompanying text.
2015
695
quasi-criminal nature of civil forfeiture, a standard higher than probable

cause is appropriate.259
While some commentators have argued that CAFRAs preponderance
of the evidence standard is not strict enough, 260 imposing a standard of
beyond a reasonable doubt is also not necessary because property owners
do not face the threat of imprisonment. 261 Because these forfeiture
proceedings are civil, the government should at least shoulder the same
burden as a plaintiff in any other civil action.262 Implementing CAFRAs
preponderance of the evidence standard would be a step in the right
direction, and ensure a more equitable forfeiture system. 263 In fact, prior to
1989, the Massachusetts Controlled Substances Act required the
government to prove its case by a preponderance of the evidence.264 While
increasing the governments burden of proof may make civil forfeitures
more difficult, a preponderance of the evidence standard cannot be too
burdensome on law enforcement agencies given that civil forfeiture
systems in an overwhelming majority of jurisdictions appear to function
adequately with something more than mere probable cause. 265
CONCLUSION
In its current form, the Massachusetts Controlled Substances Act puts
property owners at risk of abuse. Allowing the government to initiate
proceedings with virtually no evidence, placing a nearly insurmountable
burden on property owners at the outset by requiring them to prove a
negative, and the civil nature of asset forfeiture proceedings, result in a
system that is patently unfair and puts individuals at risk of erroneous
deprivations of private property. To make matters worse, because law
enforcement has a financial stake in the seizure of private property, police
departments and district attorneys have an incentive to seize property and
set this unfair system in motion. Many of the problems inherent in the
States statutory framework have been addressed elsewhere. Both
Congress and state legislatures across the country have acted to address
259

See, e.g., Moores, supra note 49, at 799 (stating that the governments burden should be
increased to clear and convincing evidence).
261 H.R. REP. No. 106-192, at 13 (1999).
262 See GURULE & GUERRA, supra note 47, at 113 (stating that in a civil case a plaintiff must
generally prove their case by a preponderance of the evidence).
260
263 Cf. Hadaway, supra note 86 (stating that CAFRA remedied the inequitable burdens of
proof under federal forfeiture law).
264
265
Commonwealth v. One 2004 Audi Sedan Auto., 921 N.E.2d 85, 89 (Mass. 2010).
See EDGEWORTH, supra note 9, at 13942; Johnson, supra note 8, at 1076.
696
v. 49 | 665
these problems and ensure more fair and transparent civil forfeiture
systems. Massachusetts should follow this lead and, using CAFRA as a
model, reform its civil asset forfeiture statute in a manner that will help
protect innocent property owners. That these reforms have been
implemented in other jurisdictions shows that property rights can be
respected while also retaining civil asset forfeiture as a legitimate tool for
state and local law enforcement.

Basler: Reforming Civil Asset Forfeiture

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Basler: Reforming Civil Asset Forfeiture

Uploaded by

Copyright:

Available Formats

Reforming Civil Asset Forfeiture:

Ensuring Fairness and Due Process for

New England Law Review

ccording to the Supreme Court, governments core function is to

Massachusetts Civil Asset Forfeiture Reform

See infra Part IV.B.

New England Law Review

Civil asset forfeiture, often referred to as simply civil forfeiture, is a

Massachusetts Civil Asset Forfeiture Reform

asset forfeiture is to prevent individuals from receiving a windfall from

Ross, supra note 19; Dunn, supra note 5.

New England Law Review

statutory forfeiture.32 Statutory forfeiture, which required the forfeiture of

The Expansion of Federal Forfeiture

Federal forfeiture law quickly expanded considerably beyond its

Piety, supra note 29, at 92829.

Massachusetts Civil Asset Forfeiture Reform

New England Law Review

Congress passed the Comprehensive Crime Control Act,51 which

State Level Civil Asset Forfeiture

Asset forfeiture at the state level is largely comparable to federal

Uniform Controlled Substances Act of 1970, 21 U.S.C. 812 (2014).

Massachusetts Civil Asset Forfeiture Reform

Id. at 23; see Moores, supra note 49, at 795.

New England Law Review

federal forfeiture law prior to reforms).

See Johnson, supra note 8, at 1069.

Massachusetts Civil Asset Forfeiture Reform

Moores, supra note 49, at 782.

New England Law Review

Johnson, supra note 8, at 1079.

Higgins, supra note 9, at 783.

Massachusetts Civil Asset Forfeiture Reform

New England Law Review

Commonwealth v. Brown, 925 N.E.2d 845, 852 (Mass. 2010).

Massachusetts Civil Asset Forfeiture Reform

issued grades to each state accordingly.116 According to the report, six

WILLIAMS ET AL., supra note 2, at 41.

New England Law Review

MASS. GEN. LAWS ch. 94C, 47(d).

See, e.g., WILLIAMS ET AL., supra note 2, at 17.

Massachusetts Civil Asset Forfeiture Reform

expertise, to provide matching funds to obtain federal grants, or [to

47(d) (emphasis added).

See WILLIAMS ET AL., supra note 2, at 17.

Chi, supra note 42, at 1635; Higgins, supra note 9, at 77879.

(The Department of Justice asset forfeiture program has three primary

New England Law Review

Revenue generation is not an evil by itself, and supporters of civil asset

Solomon, supra note 41, at 1174.

Massachusetts Civil Asset Forfeiture Reform

Blumenson & Nilsen, supra note 135, at 56.

New England Law Review

an illegal drug transaction.157 Despite the positive outcome, this case is

Massachusetts Civil Asset Forfeiture Reform

proceedings;166 burden shifting, which requires the property owner to

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

47(d) (emphasis added).

New England Law Review

According to the Massachusetts Supreme Judicial Court (SJC), this

Alessio, supra note 15, at 437.

Ross, supra note 19, at 267.

Massachusetts Civil Asset Forfeiture Reform

Alessio, supra note 15, at 438.