Editor’s note: New England Public Media and The Republican collaborated on a monthslong investigation into the practice of civil asset forfeiture in western Massachusetts. This story is one part of that series. You can read the other stories here.
Malinda Harris was startled when she walked up to her car on a Springfield street one March evening in 2015.
“Soon as I put my hand on the door, I’m telling you about six, seven, eight police officers just came from every direction,” she said. “It was really, really scary.”
Police told her to back away and hand over her keys, she said.
“They just took the car, no warrants, no paperwork. I got nothing,” Harris said.
It would be five years until prosecutors contacted her about getting the car back.
Harris was never charged with a crime, but the Berkshire County Law Enforcement Task Force suspected that her son, Trevice Harris, was trafficking cocaine and heroin from Springfield to the Berkshires, according to a police report filed in Pittsfield District Court. Hours before police took her car, Trevice, who typically drove a motorcycle, had borrowed her car. That day, police searched his apartment.
Malinda Harris asked the police several times why they took her car. She got the same answer: “Ongoing investigation, ongoing investigation,” she said. “And that was basically it.”
Police took her car through a process known as civil asset forfeiture. It allows law enforcement to seize property if they suspect it’s connected to a crime. Massachusetts is the only state that has kept its burden of proof for civil forfeiture that low.
Other states have either raised the standard of proof for seizing property or abolished the practice. Under Massachusetts forfeiture laws, law enforcement holds on to the property and there are no rules saying how promptly district attorneys must start court proceedings to formally take it.
It’s a system the state’s advisory committee to the U.S. Commission on Civil Rights called “deeply flawed at all levels” in a 2023 report.
“It has resulted in, and continues to create opportunities for, consistent and systematic violations of the civil rights of citizens of the Commonwealth,” the commission said.
After property is formally taken through a court process — separate from any criminal charges a defendant might face — district attorneys’ offices split the funds with police departments involved.
And in Massachusetts, there’s little oversight over how police spend the money.
Most people in western Massachusetts facing forfeiture never make a claim in civil court for their property, according to court statistics from fiscal years 2022 to 2023. Between the years 2019 and 2023, the Hampden District Attorney’s Office returned $16,194 to claimants compared to about $2.4 million the office added to its bank account in that time.
Despite a special state legislative commission’s 2021 report recommending reforms, and some lawmakers filing bills, little has changed.
“It’s an issue that we need to seriously look at,” said state Rep. Antonio Cabral, D-New Bedford, who says he began filing bills to change the state’s civil forfeiture laws more than two decades ago. He said Massachusetts should follow the example of other states and reform its laws.
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.” He believes the system is effective, and that conversations about reform are a “solution in search of a problem.”
Some defense attorneys and civil rights organizations, however, say the system violates people’s constitutional rights. Police departments have no obligation to report how they spend forfeiture funds. And unlike in criminal cases, indigent defendants don’t have the right to a defense attorney when prosecutors bring a civil forfeiture case against them.
Luke Ryan, a Northampton defense attorney, said the system creates a “profit motive” in policing.
“When this debate happens, I think people are generally reluctant to really name what’s going on, which is that the people who are benefiting from forfeiture are fighting like hell to keep a system that gives them money for protracted investigations, that lets them pay people overtime and increase their salaries,” he said.
Current policies are “little more than legalized theft,” U.S. Rep. Ayanna Pressley, D-Boston, said in a 2021 congressional hearing.
New England Public Media and The Republican reviewed more than 60 forfeiture cases in 2020, 2021 and 2022 — a period selected so the cases would be likely to be resolved — in Hampden, Hampshire and Franklin counties.
The review flagged situations in which it took decades for some people to get the chance in court to get their money back.
In some cases, police seized large amounts of cash, like the $4 million in cash they took from a suspected western Massachusetts marijuana trafficker in 2020. In other cases filed in court, prosecutors sought to formally take less than a dollar from someone.
Some people have fought to get their forfeited property back even after their drug convictions were overturned when state chemists’ misconduct led the state’s top court to throw out those cases. That includes western Massachusetts residents who are part of a class-action lawsuit that’s tied up in federal court.
Malinda Harris’ story
When her car was seized in Springfield in 2015, Harris was homeless and living in a downtown shelter.
After spending about a decade in South Carolina, she had moved back to Springfield to be closer to her children and grandchildren. But her housing plan fell through. She still had the car she’d just bought — a black 2011 Infiniti G37 coupe. It was the closest to a new car she had ever owned.
When police searched the car in March 2015, they found parking tickets, a Jiffy Lube receipt and other paperwork, a police report says, but no drug-related items.
At Trevice Harris’ apartment in Springfield, police allegedly found large amounts of heroin and cocaine, though, as well as cash; the court issued a warrant for his arrest on drug-trafficking charges.
Malinda Harris said police told her the investigation was ongoing and she couldn’t get her car back. She didn’t know what to do. She didn’t have any money. “I didn’t even know the process.”
Harris had to quit a third-shift job because it wasn’t on a bus route. “That was a really emotional time for me,” she said.
Eventually, she got back on her feet. She found a place to live and landed a job as a counselor for people with substance use disorder. After saving for about a year, she was able to buy another car. She didn’t think she would get her Infiniti back. “I had written it off when it first happened, because that’s what happens in my neighborhood,” she said.
Trevice Harris, her son, was never arrested on the charges tied to the car seizure. In 2018, Trevice was shot and killed at a gas station in Youngstown, Ohio.
Malinda Harris didn’t hear anything about her car until five years later, when the Berkshire DA’s office filed a civil asset forfeiture case. She said she was given around 20 days to file a response and make a claim to the vehicle — or she would default.
Without money, she struggled to find a lawyer, and in civil court — unlike criminal court — defendants aren’t entitled to a court-appointed attorney. Harris said she called the court clerk’s office to ask for more time to respond.
She was told she needed to file a court paper. Instead, she contacted the Goldwater Institute, an Arizona libertarian organization that does litigation across the country on issues including property rights. The institute provided a pro-bono lawyer, who represented her in court. She was able to negotiate to get her car back, along with more than half of the $79,000 police seized from Trevice Harris’ bank accounts and safe deposit box.
The Infiniti was towed to Springfield. Harris put about $2,000 worth of work into it and gave it to Trevice’s oldest daughter.
“It was a bad time for me when it happened,” Harris said. “But I had a happier ending than 90% of people.”
A failing grade
Prosecutors moved to take more than $24 million from people in civil asset forfeiture cases across the state in fiscal years 2021 through 2023, according to the most recent report from the Massachusetts Trial Court Department of Research and Planning.
The state can take money and property connected to a crime through various laws dating back hundreds of years.
But the vast majority of cases in Massachusetts — around 99% from fiscal years 2017 to 2020, according to the state Legislature’s report — are brought in civil court under violations of the Controlled Substances Act, passed in 1971. That same year, President Richard Nixon declared the so-called “war on drugs.” In her influential 2010 book “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” civil rights attorney Michelle Alexander wrote that when President Ronald Reagan took office, his administration began allowing local police to keep civil asset forfeiture money as a way to get them to participate.
“This dramatic change in policy gave state and local police an enormous stake in the War on Drugs — not in its success, but in its perpetual existence,” she wrote.
Proponents of the practice say the aim is to dismantle criminal enterprises, like drug trafficking networks, and to prevent people from profiting from crime.
“The idea is if we deprive the criminals of their ill-gotten gains, we will be able to attack this larger problem of drug cartels and things like that,” said Western New England law professor Julie Steiner. In practice, she said, the state does an “abysmal job of aligning our constitutional principles with our asset forfeiture approach.”
Initially, law enforcement needs probable cause that the property is connected to a crime, Steiner said. “Any reasonable ground to suspect a crime has been committed. That is the lowest threshold out there.”
Often, police take property, like money or a vehicle, at an initial arrest.
Prosecutors then file a civil case to take the property. In civil court, the defendant must prove the property was not connected to criminal activity, Steiner said, which “turns criminal law on its head.” Someone doesn’t need to be charged with a crime to have their property taken, she said.
The state has had probable cause as its forfeiture standard since 1989, even though the federal government tightened its standards in 2000. Now, Massachusetts has the lowest burden of proof of any state in the country. That helped earn it a failing grade from the Institute for Justice, a libertarian-leaning public interest civil liberties law firm, in a 2020 report that analyzed all states’ policies.
“Massachusetts has the worst forfeiture laws in the country,” said Dan Alban, a senior attorney at the Institute for Justice who has testified before the Massachusetts Legislature. “It is the only state we gave an F.” The state is seen as the least protective of property rights. Third parties like Malinda Harris that have property taken may need to prove their innocence in court.
The report caught the attention of the state’s advisory committee to the U.S. Commission on Civil Rights, said David Harris, its chair and former director of the Charles Hamilton Houston Center for Race and Justice at Harvard Law School. After taking testimony and analyzing cases across the state, the commission agreed the failing grade was warranted, he said.
“To me, the most surprising thing was the total chaos,” Harris said. “It’s like the wild, wild west … there is no oversight. There is no standardization. … Jurisdictions vary on how they handle the entire process.” It was hard for the commission to gather data and navigate the “labyrinthian” system, he said.
The commission called for the practice to be abolished, which several states, including Maine and Nebraska, have done. In those states, property can still be taken through criminal court, as it can in Massachusetts. In criminal proceedings, though, the evidentiary bar is higher for forfeiting property.
Western Massachusetts prosecutors say that while the system could be improved, it is an important tool in fighting drug crime.
“I believe 100% in the presumption of innocence,” Northwestern DA David Sullivan said. “But this isn’t for simple proceeds. These are the monies that they had in their crack house where they’re mixing fentanyl. We’re saying to the judge, these (monies) are the result of this illegal drug trade where they’ve maybe killed people, maybe not, but still, they’ve endangered the public, and this is why we’re moving for civil forfeiture.”
If someone can prove their seized funds were unrelated to a drug crime, then Sullivan said his office does not want it.
“It’s all about fairness,” he said. “And do we want drug dealers to get their money back, to create another organization down the road? Absolutely not. So we want to make sure that people get their legitimate money back that’s not from drug trade, but for those that have it, then we want to make sure that it’s seized and used for good purposes.”
Jared Olanoff, a defense attorney who represents clients mostly in Hampden County, said he has seen district attorneys return property even before a case concludes if police initially seized what appears to be “too much property” not connected to criminal activity.
“As far as seeing any sort of abuses of the civil forfeiture statute, I have not seen that,” he said.
Olanoff said that agreeing to forfeiture can also be a tool for defendants like his to negotiate a better resolution of their cases, particularly in “close” cases when it’s not clear which side will win at trial.
Reform efforts
While some state lawmakers have proposed reforms to the civil asset forfeiture laws, most have gotten little traction. One reason? Opposition from law enforcement.
A 2019 law created a commission to study the policies. Its 2021 report recommended reforms. Those include raising the burden of proof for forfeiture, giving legal representation to those who qualify, setting a minimum amount for property seized and requiring law enforcement to report more details on how funds are spent.
The report also said the Legislature should consider putting forfeited funds into the general fund or into programs to address substance use disorder or aid victims of crimes.
“The policy of divesting the powers to seize property from those who financially benefit from the forfeiture is a public policy the Legislature should consider,” it reads.
District attorneys’ offices can give no more than 10% of funds to programs focused on addiction or crime prevention. If Sullivan could, he said he would give a higher percentage of the seized money to community organizations.
State Rep. Carlos González, D-Springfield, served as a member of the state commission and filed legislation last year that would implement many of the panel’s recommendations. It hasn’t passed, but he plans to refile a new version next session. He questioned the fairness of taking property from someone before they’ve been found guilty of any crime. He’s not alone: When Andrea Campbell was running for state attorney general in 2022, she agreed in a questionnaire that state laws on civil asset forfeiture don’t allow for due process.
Reform isn’t a partisan issue, said Alban, the lawyer from the institute for Justice. “It would seem somewhat remarkable that these reforms haven’t been able to pass in Massachusetts,” he said. “The reason it doesn’t pass frankly is because law enforcement opposes it. … They have strong financial reasons for opposing the reforms.”
Another lawmaker trying to reform civil asset forfeiture is Cabral, the New Bedford state representative. He said he has filed different bills over the years and wants more transparency on how law enforcement spends forfeiture money.
The most recent legislation he filed would change the way forfeited funds are shared. Instead of a 50-50 split between police and district attorneys, the bill would give each of those entities a third of forfeited funds and devote the other third to drug treatment, education and a juvenile diversion program.
“In the past, one of the biggest opponents was the district attorney’s association,” Cabral said.
Law enforcement representatives on the legislative commission dissented from its final report. That included a representative from the Massachusetts Chiefs of Police Association and Norfolk District Attorney Michael Morrissey.
Sullivan and Gulluni, who were not on the commission, said in interviews they support some reforms, like raising the evidentiary bar. Changing the Massachusetts standard to be in line with the majority of other states “would be totally acceptable to us,” Gulluni said.
That standard means an allegation is more likely than not to be true, or more than 50% certain — a lower threshold than criminal cases, in which a prosecutor must prove beyond a reasonable doubt a defendant committed a crime.
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.”
In general, Gulluni thinks the state’s system is effective.
“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.”
‘A broken system’
For Malinda Harris, an attorney was key to reclaiming her car.
“If it wasn’t for the Goldwater Institute, I wouldn’t have gotten the car back,” Harris said. “I wouldn’t even know how to even begin — I couldn’t even figure out how to get a lawyer.”
Then-Berkshire District Attorney Andrea Harrington told The Berkshire Eagle in 2021 that she inherited his case from a previous DA and that it was challenging because Trevice Harris left the area and defaulted. Though the state was allowed to take the car, her office agreed to release it “in the interest of fairness and out of compassion for his family.” Harrington also called for reforms to civil asset forfeiture in Massachusetts, which she said is “a broken system.”
After Harris got her car back in 2021, she traveled to Washington, D.C., to tell her story to Congress.
“I don’t think people should be allowed to police for profit,” she said, testifying in late 2021 before the U.S. House Subcommittee on Civil Rights and Civil Liberties. If money is taken, she said, “I really think it should go back into the community from which it was taken and do some good there.”
“As a citizen, I know the government should not act in that way,” she said in additional written testimony submitted to Congress. “We should be able to trust the police and count on them to keep us safe. … How do you teach your children to respect the law, when the people who are sworn to uphold it can take your property on nothing more than naked suspicion?”
Federal legislators at the time were considering legislation on civil asset forfeiture. “I cannot tell you how to reform the system,” Harris said, “but I can emphatically tell you the system needs to be fixed.”
