Civil Asset Forfeiture

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Video: Right to counsel in civil asset forfeiture

Bill: Right to counsel in civil asset forfeiture


Douglas Quattrochi - Doug

[Start 0:00:00]

Presenter: Yes, this is the last bill I’ll talk about before we go over to Q&A, and this is about civil asset forfeiture specifically about right to counsel in civil asset forfeiture. I’ll give you an overview of civil asset forfeiture in a moment and explain why we think that the right to counsel in this could help us find new allies and shift an important power balance and again shift the mindset, restore this idea that private property rights are essential to a functioning quality. We want to get back to some sort of constitutional basis, this guarantee to the right of private property and to equal representation of courts, equal right to participate in justice.

There are a few uh high-level goals here and we've chosen civil asset forfeiture because it is really, really pernicious. At the start of the year 2020, I was thinking to myself I can't believe that in Massachusetts, the people here will let something like civil asset forfeiture happen, how enough can we live in a place where the government can just come along and seize your stuff for no reason without even having prosecuted you let alone convict you. They can take your house, your car, your boat if you're fortunate to have a boat, or your cash, you just take the cash out of the front of your car. How can we do this? And then of course came the state of emergency and the eviction moratorium, I stopped being surprised at things state government can do and we, the people, put up with.

What is civil asset forfeiture? As I mentioned in passing that it's where the state comes in in the form of the attorney general or district attorney, and on the basis of probable cause that the crime has been committed somewhere using the vehicle or the cash as an instrumentality, can under the drug laws in Massachusetts just take the stuff and then the burden is on the person whose cash, house, car, boat whatever it is that the government has taken, the burden is on the owner to prove their own innocence, prove that their property was not used in connection with this crime.

People who are in those publicly funded organizations, those advocacy groups I mentioned earlier who are funded through MLAC, they're very keen on saying that tenants need a right to counsel in summary process cases because they're up against these really powerful landlords and there's this terrible power imbalance. Members of MassLandlords have infinitely deep pockets, right? And that's why tenants need taxpayer-funded lawyers.

If that were true, their policy response would be right. If housing providers had the power of government, if they had the resources and power deep pockets of government, yes absolutely tenants should have a right to publicly funded council because when you're up against the giant, when you're up against government, when you're up against publicly-funded lawyers, you too should have a publicly-funded lawyer, so hold that thought.

Right to counsel and civil asset forfeiture does several things. It encourages owners of seized property to challenge the seizure in court. It discourages the government from seizing the property in the first place, and it redresses that power and balance and co-benefit it enables us to reach out to people that usually we don't work with, make common cause with them, and fix a problem that really goes to the heart of property rights in Massachusetts.

If anything exemplified the body politics, absolute contempt for the notion of private property, it is civil asset forfeiture. Just ask this guy. Go to the Institute for Justice website and look at the case, Tewksbury case of the Motel Caswell right here in Massachusetts and how this family had to fight to keep its motel. The motel owners had done nothing wrong, but over the course of many years, there'd been some drug busts there. You  know how many thousands of people went through that motel over the course of 20 years? A lot, and the chances of well you can do the math, but how likely it is that someone would get busted? On the strength of those drug busts over the years, the government decided to take the motel, take the motel even though the owners have committed no crime. They would have gotten away with it, but for the fact that Institute for Justice came in and fought the motel owners.


Now most people don't have the Institute for Justice on their side when state government comes along and seizes their stuff under Chapter 94C, section 47D. What kind of property does state government usually take? Twenty-four percent of cases under 2,000. Twenty-five percent of cases under $5,000, so just think about that in half the cases, the amount of money that the government is seizing is less than five thousand dollars and in one case $6.20.

There's a famous case in Chicago where the local law enforcement, people they took the cans from the from the victim's kitchen and so in the inventory of stuff they seized you'll see the price of the cans of peas, the cans of beans they took things from this person's house. They kept them and something similar is happening in Massachusetts.

These figures are from the department of the trial court and so I didn't make this stuff up. The Department of the Trial Court published these figures just last year and that's the amount of money that district attorneys across the Commonwealth and the attorney   general are taking from people who've committed no crime and the onus is on the innocent owner to prove their innocence.

Now if you've had property worth $5,000 seized can you afford to hire an attorney to overcome the high burden of proof that you have to overcome in order to get your stuff back. It’s a real uphill struggle it's going to cost more than $5,000, so most people don't hire an attorney the government gets away with it. Yes the burden is on the claimant to prove the property is forfeitable in most cases the legal fees would exceed the value of the seized property and that's why in the vast majority of cases, 80 percent of cases of civil asset forfeiture the person whose property has been taken by the state government they don't bother trying to get it back. It just doesn't make economic sense to try to get it back and almost needless to say it has a disparate impact on communities of color statute allows prosecuting attorneys and law enforcement to keep the property.

This is really worth remembering: the government takes the property and then keeps it. Let's say they found a car on I-91 and it's got $5,000 cash in the trunk because the driver happens to be somebody likes to use cash or happens to be a professional poker player, this is the case that actually happened. They take the money and they keep it. The local police department gets to keep that money. You do that over time, you get a lot of money. There is an incentive for law enforcement to engage in civil asset forfeiture because the bonus is on the owner to prove their innocence in order to get their stuff back. They can't  afford to hire an attorney to do it so it's like tax but even easier.

This is this is some in violation of some pretty basic fundamental rights that we have as a self-governing republic of free people and one of our whereas clauses here just recite them just go through the declaration of rights pointing out, how this practice civil asset forfeiture violates those fundamental principles in the most outrageous way. As I said earlier, most bills don't have whereas clauses but we've decided to do it this time because we want to use the bills to educate.

This has a an educational function as well as just being a set of instructions to an officer of government about what to do next, so we want to change things. We want to ensure that the money goes not to law enforcement, not the attorney general, not to the district attorneys but into a fund the CPS, fund let me skip ahead, as I see some time free for Q&A. We want that money to go into a fund that will allow the court to assign counsel to the people whose stuff has been taken. That removes the incentive for the government to take the stuff in the first place, and if ensures a level playing field and if the legislature wants to fund right to counsel for summary process cases great let them do it from this too.

that's one of the things we suggest because the money for right to counsel in summary process cases should come from somewhere. Why not here? why the general fund why, not this specific fund  from civil asset forfeiture cases It’s money that the government shouldn't have in the first place anyway.


let me pause there and this the section two explains that CPCS, Committee for Public Counsel Services would be able to use the money to pay attorneys to represent people whose stuff has been taken and represent people in summary process cases.

Okay let me stop.

[End 0:10:26]

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