Massachusetts’ civil forfeiture law has been the subject of criticism for years. Back in 2017, the state had the dubious distinction of being one of only two states to receive a failing grade for its civil forfeiture scheme from the Institute for Justice, a nonprofit public interest law firm.

Now the Legislature has established a Special Commission on Civil Asset Forfeiture to study forfeiture policies and practices in Massachusetts.

The 21-member committee comprises representatives from a range of stakeholders, including the Legislature, the Supreme Judicial Court, the Attorney General’s Office, the ACLU, several bar associations and law enforcement. The members are charged with reviewing current approaches, analyzing any racial or socioeconomic disparities in the application of civil forfeiture law and evaluating best practices in other states. A final report is due Dec. 31, 2019.

When the Institute for Justice conducted its review of civil forfeiture laws, it assigned letter grades based on the protections afforded to persons whose property is seized and any incentives for law enforcement agencies to “police for profit.” Only two states received “F” grades: Massachusetts and North Dakota.

Our poor grade was based on several factors. First, unlike with criminal forfeiture, which takes property only from convicted criminals, under Massachusetts civil forfeiture rules property owners who have not been convicted, or even charged, with a crime may permanently lose their money, cars, businesses or even homes.

The Institute also noted that state law lacks due process protections, provides a strong incentive for law enforcement agencies to seek civil forfeiture because they can retain up to 100 percent of seized assets to supplement their budgets, and uses only a probable cause standard of proof in determining whether seizure property was involved in a crime. That standard is lower than even the preponderance of the evidence standard used in many other states. And people who have their property seized are often in no position to afford legal counsel, since the cost of a lawyer may be more than the value of the property.

Further, Massachusetts is heavily involved with the Department of Justice’s equitable sharing program, which allows local police and prosecutors to bypass state law, collaborate with a federal agency to forfeit property under federal law and keep up to 80 percent of the proceeds.

The Institute also criticized state reporting requirements, which do not require information about individual forfeiture cases or agency-level forfeiture proceeds to be retained.

All of this makes it too easy for property to be confiscated, and creates incentives for police and prosecutors to use forfeiture as a way to target those without the ability to fight a seizure. The law can also lead to unintended consequences, such as putting elderly parents or minor children living in a target’s house at risk for homelessness.

A number of potential reforms have been proposed. For example, the current standard of proof could be replaced with a requirement that the state prove by clear and convincing evidence that property is subject to forfeiture. Other positive steps would include requiring a criminal conviction before a person’s property can be forfeited and eliminating the “profit motive” by requiring that money from forfeited property be deposited into the general fund and not kept by a particular law enforcement agency or local district attorney’s office.

Other states are moving toward civil forfeiture reform. Nebraska and California have established a standard of proof of beyond a reasonable doubt in most forfeiture cases, and North Carolina, Minnesota, Montana, Nevada and Vermont generally require a criminal conviction. Six other states now use the clear and convincing evidence standard.

The time is ripe for Massachusetts to take a hard look at this issue. The commission’s work is a good first step in that direction.

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BOARD OF EDITORS: Robert J. Cordy, Boston; John B. Daukas, Boston; Marguerite T. Grant, Canton; Stesha A. Emmanuel, Boston; Martin W. Healy, Boston; Hon. Margaret R. Hinkle, Boston; Thomas M. Hoopes, Boston; Hon. Rudolph Kass, Boston; Marsha V. Kazarosian, Haverhill; Andrea C. Kramer, Boston; Renee M. Landers, Boston; Richard L. Levine, Boston; Elizabeth N. Mulvey, Boston; Eric J. Parker, Boston; C. Max Perlman; Boston; Patricia M. Rapinchuk, Springfield; Martin R. Rosenthal, Boston; Jeffrey Sacks, Boston; Carol A. Starkey, Boston.