The Sheriff of Nottingham’s spirit is alive and well in Western Mass

Civil asset forfeiture laws allow police and prosecutors to enrich themselves by seizing cash and cars with little due process

The Sheriff of Nottingham celebrates after a successful shakedown. (Image Credit: Disney’s Robin Hood, 1973)

On Sunday, the Springfield Republican’s Greta Jochem and New England Public Media’s Dusty Christensen published a three-part series on civil asset forfeiture, a legal process that allows police and prosecutors to seize cash, cars, and other property from people with little due process.

As the series notes, civil asset forfeiture is often derided as “legalized theft” because it allows police and prosecutors to enrich themselves with the money and other property they seize — all without obtaining a criminal conviction.

According to the reporting, police and prosecutors in Western Massachusetts have used seized assets to pay for public-relations consultants, uniforms, weapons, body armor, vehicles, cameras, facial-recognition software, food and drinks, an ice-cream truck, building renovations, furniture, trophies and “challenge coins” for themselves — and of course overtime hours, which police officers presumably spent hunting for more property to profit from.

The series notes that Massachusetts uses a probable-cause standard for civil asset forfeiture, the lowest burden of proof of any state. Once police have seized property, it’s up to the owner to go to court and prove the property wasn’t used in a crime. Unlike in criminal cases, low-income people aren’t provided with legal representation.

One piece details the story of a woman who lost her job because police seized her car, claiming her son used it to sell drugs. It was five years before the Berkshire County District Attorney’s Office returned the car, and only after the woman was lucky enough to find a lawyer willing to represent her pro bono.

The whole series is absolutely worth reading. I encourage you to check out the three parts here, here, and here.

I also want to draw particular attention to the ridiculous comments made by two district attorneys, Hampden County DA Anthony Gulluni and Northwestern DA David Sullivan, who defended the state’s forfeiture laws.

Here’s an excerpt from one piece:

Police and prosecutors see forfeiture as a useful tool to fight drug crimes and supplement their budgets. And the law allows district attorneys to give up to 10% of the money to drug rehabilitation, drug education and other anti-drug or neighborhood crime watch programs.

“It’s like Robin Hood, a little bit,” said Hampden County District Attorney Anthony Gulluni. “It’s like taking from bad sources and giving it to good.”

What an interesting comparison. I suppose it is a lot like Robin Hood in the sense that cops who seize cash and cars from people and keep the vast majority of the proceeds for themselves are playing the part of the Sheriff of Nottingham.

Gulluni and Sullivan said they would be fine with raising the legal standard from probable cause to a preponderance of the evidence, which is still much lower than the beyond-a-reasonable-doubt standard used in criminal cases.

Under the preponderance-of-the-evidence standard, prosecutors would need to show that it was more likely than not that property was involved in a crime. But it would still be the responsibility of the owner to pay for a lawyer and go to court to get the property back.

And the two district attorneys really, really don’t want the people whose property they seize to have lawyers:

Sullivan and Gulluni both strongly oppose providing attorneys for low-income people facing civil asset forfeiture cases.

“A father or mother doesn’t get an attorney for their probate and family court case for divorce or custody,” Sullivan said. “Why should we be giving drug dealers cases to recover their ill-gotten gains? To me, it’s absurd.”

Of course, the reason we provide people with lawyers in criminal cases is because not everyone who David Sullivan calls a drug dealer is actually guilty. People are supposed to be innocent until proven guilty — and everyone, whether innocent or guilty, deserves representation so they can navigate the legal system.

Our criminal legal system is supposed to have due-process protections, including guaranteed legal representation, so that the state can’t mete out punishments without genuinely proving that someone is guilty of a crime. Losing your job and housing because the police decided your car and rent money were related to drug dealing is definitely a punishment, and calling it “civil” asset forefeiture doesn’t change that.

There’s also the obvious problem of how someone is supposed to afford a lawyer if the police have taken their money. And then there’s the fact that it might not even be worth trying to recover property if hiring a lawyer would cost more than its value. Not everyone can easily get free legal representation — that’s precisely why everyone is guaranteed a lawyer in a criminal case.

But Gulluni thinks having the system stacked in favor of police and prosecutors is totally fine:

“The robust nature of this conversation around forfeiture reform is a solution in search of a problem, and frankly, those problems don’t really exist in the commonwealth of Massachusetts,” he said. “This system works. It’s presided over by a judge, and there is due process.”

Gulluni is being deliberately obtuse here. The fact that judges oversee this process is irrelevant; a system with unfair rules will produce unfair outcomes regardless of who is overseeing it.

Giving police and prosecutors an incredibly low standard of proof for seizing property and expecting people whose property was seized to pay out of pocket for attorneys is a recipe for injustice — and these DAs seem to really like it that way.

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Again, go check out the full reporting by Greta Jochem and Dusty Christensen here, here, and here.

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And if you missed it, check out my piece from last week documenting the amazing story behind the Running for Innocence team, which has spent the last decade raising money to get wrongfully convicted people out of prison.

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