Civil Asset Forfeiture in Massachusetts: A Flawed Incentive Structure and its Impact on Indigent Property Owners

Abstract: All fifty states and the federal government have civil asset forfeiture laws that enable law enforcement agencies to seize property that they suspect has been involved in the commission of a crime. Although there are many benefits to the system, there are also many flaws. The entire structure of the civil asset forfeiture system, at both the federal and state levels, creates incentives for abuse by law enforcement. This Note advocates for a series of changes to the current forfeiture law in Massachusetts, including requiring a heightened burden of proof, providing counsel to indigent property owners, and reforming the incentive structure created by the interaction with federal forfeiture law. These statutory safeguards will help reduce the disproportionate impact that Massachusetts's forfeiture law has on lower income parties and the general population overall.INTRODUCTIONFirst, envision a million-dollar motel property that had been family-built, owned, and operated since 1955.1 Then envision the federal government working in conjunction with local law enforcement to seize possession of this momand-pop motel.2 The motel owners are not connected with any sort of criminal activity.3 Moreover, the seizure takes place without providing any amount of compensation to the owners.4 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.5 The law enforcement agency responsible for the seizure can subsequently sell the property and use any profits to supplement its budget.6 The above-outlined seizure was the nightmare faced by sixty-nine-year-old Russ Caswell and his family, owners of The Motel Caswell ("the Motel"), in Tewksbury, Massachusetts.7Russ Caswell's father built the Motel in 1955 and the family operated the Motel for two generations.8 Russ Caswell took over ownership and operation of the Motel beginning in 1984.9 On September 29, 2009, the United States brought a civil forfeiture action against the Motel under the Civil Asset Forfeiture Reform Act ("CAFRA").10 The government argued that the Motel had been used to facilitate illegal activity in the form of drug transactions.11 Specifically, the complaint asserted that the Motel should be subject to forfeiture because it had been "used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of [the Controlled Substances Act] punishable by more than one year of imprisonment."12Leading up to the seizure of the Motel, the city of Tewksbury had become increasingly subject to criminal and drug activity.13 The Caswells were aware of this trend, and whenever they became suspicious of potential criminal activity occurring on their property, they notified the police and fully cooperated with them.14 Neither Mr. Caswell nor anyone in his family had ever been involved in any sort of criminal activity.15 Although criminal forfeitures occur only after a person has been convicted of a crime, civil forfeitures do not require a conviction, or even that charges be brought against the property owner.16 The government did not contend that the Caswells were involved in criminal activity; rather, it argued that there was a "substantial connection" between the Motel and certain illegal activity, and therefore the property was subject to forfeiture.17 In support of this contention, the government pointed to fifteen arrests at the Motel between September 30, 1994 and November 30, 2008.18 None of these arrests involved Mr. Caswell or any other employee of the Motel.19 Between 1994 and 2011, the Caswells had rented rooms to over 125,000 guests.20After the government initiated the forfeiture action against the Motel, the Caswells became locked in a three-year legal battle with the government to keep possession of the Motel.21 Mr. Caswell depleted all of his savings on legal counsel, spending over $100,000 during the course of the dispute. …