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Civil forfeiture’s perverse incentives plaguing Massachusetts

By   /   June 24, 2015  /   No Comments

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UNCIVILIZED: While a victory against civil forfeiture in Massachusetts is getting recognized, the state has show no sign of reforming the process’s perverse incentives.

By Peter Ingemi | Watchdog Arena

One of the things that make America a prized destination for people who have lived under lawless regimes with arbitrary justice systems is the standard of equal justice under the law.  The idea that if you follow the rules, obey the law, you can make a life for yourself.

Unfortunately, the following is not a tale taken from a Third World country:

First, envision a million-dollar motel property that had been family-built, owned, and operated since 1955. Then envision the federal government working in conjunction with local law enforcement to seize possession of this mom-and-pop motel. The motel owners are not connected with any sort of criminal activity.  Moreover, the seizure takes place without providing any amount of compensation to the owners.  This can occur through a proceeding known as civil asset forfeiture, which allows law enforcement agencies to seize property suspected of being involved in the commission of a crime.

This is a tale from motel owner Russ Caswell in Tewksbury, Mass., which was written about by Andrew Crawford in a paper published last month in the Boston College of Journal of Law & Social Justice entitled, “Civil Asset Forfeiture in Massachusetts: A Flawed Incentive Structure and its Impact on Indigent Property Owners.”

Photo from Institute for Justice

Russ Caswell, owner of Motel Caswell

The Caswell family, which has run Motel Caswell for two generations, had not committed any crimes. In fact, they had been cooperating with authorities. But authorities contended that due to 15 arrests in a 15-year period (a period when 125,000 people had stayed in said motel), “a substantial connection between the Motel and certain illegal activity and therefore the property was subject to forfeiture.”

The process is called civil forfeiture, and as this story from the Blue Mass Group notes, it’s not a fun prospect for the target of this process, particularly in Massachusetts:

There is a low bar to take this property from citizens.  Rather than being required to prove “beyond a reasonable doubt” that property was used in a crime, police usually need a lower bar.  They take the property, and to get it back you need to hire a lawyer to prove a negative.  In other words, if police mange to convince a judge or jury that your car was probably used in criminal dealings, you no longer own a car.  If someone was using your house as part of a criminal enterprise, you may no longer own a house

The Institute for Justice, a non-profit national public interest law firm, gives Massachusetts a final grade of “D” in their Asset Forfeiture Report. IJ states that Massachusetts law enforcement needs only to provide probable cause that property was related to a crime in order to forfeit it, keeping 100 percent of all property that is forfeited.  The receipts are then split, with half going to the prosecutor’s office and half going to the local or state police.

If you are a local police force or a state government always facing the prospect of budget cuts, that’s a powerful incentive.  As the Metro West Daily News editorialized:

Letting those who seize property keep the proceeds is an obvious conflict of interest. It encourages police to use the program as essentially a profit center, one that raises and spends money without the involvement of elected officials who should be managing department budgets.

More interesting is how this incentive system directs policing to particular parties and away from others.  Crawford writes:

The article [“Policing for Profit: The Drug War’s Hidden Economic Agenda”] asserted that law enforcement agencies target certain types of criminals in order to maximize their forfeiture profits.  For example, law enforcement targets drug buyers instead of sellers because they have cash, which can be retained by law enforcement agencies, whereas the drugs found on sellers must be destroyed.  According to one former law enforcement officer, “[t]his strategy was preferred by every agency and department with which I was associated because it allowed agents to gauge potential profit before investing a great deal of time and effort.”

But that’s not the only perverse enforcement incentive.  Watchdog Arena spoke with Dan Alban, an attorney with the Institute for Justice, who deals with these cases.  Alban noted that Caswell’s motel as a paid off family business had no corporate connection or bank connection which would have representation on staff.  This was yet another incentive to go after the Caswell family rather than the parking lot of the local Wal-Mart where this type of criminal activity was much more common.

“The government tends to go after folks who can’t defend themselves adequately,” Alban stated. Such defense is usually costly and there are few who specialize in it. Furthermore, forfeiture often involves cash that a business needs to operate, which provides an incentive for a fast settlement just to stay in business.  But that also provided the Institute for Justice  an incentive to get involved. In the words of Alban: “It’s a common theme and terrifying, and that’s why we do it.”

Fortunately for Mr. Caswell, they did.  Thanks to the representation of Institute for Justice, Caswell was able to win his case and keep his family motel

The bad news is that there is no sign that either the Massachusetts General Court or the new governor has made this issue a priority.   After all, if the state moves to dry up this revenue source for city governments’ police forces, the money to replace it would have to come from somewhere, and neither budget cuts or higher taxes is likely to advance the re-election prospects of anyone on Beacon Hill.

Yet another uncivil incentive to sustain an uncivil process.

This article was written by a contributor of Watchdog Arena, Franklin Center’s network of writers, bloggers, and citizen journalists

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Peter "DaTechGuy" Ingemi is an award-winning blogger who has been blogging at DaTechGuyblog.com since 2008. He has covered presidential, senatorial, congressional and state campaigns across the country with his trademark Fedora & Dr. Who scarf. He hosted DaTechGuy on DaRadio on AM Radio from 2010 until 2014. Since 2013 he has been joined at his blog by his Magnificent Seven bloggers from across the country who contribute on a daily basis. Find him on Twitter: @DaTechGuyblog