Article Preview: “Reforming Civil Asset Forfeiture”

Citizens who own property in Massachusetts, or pass through Massachusetts, are at a greater risk of having their property taken and sold by the Commonwealth than in almost any other state. As if Due Process no longer applies, the Commonwealth presumes the property itself guilty, seizes it, sells it, and uses the cold hard cash to pad police and prosecutor budgets.

In Reforming Civil Asset Forfeiture: Ensuring Fairness and Due Process for Property Owners in Massachusetts, Charles Basler champions civil asset forfeiture laws that are nobler than The Commonwealth’s. He explains that among the states, the Commonwealth of Massachusetts is an outlier. This is not because Massachusetts is the archetype of change or on the cutting edge of social justice, but because its civil asset forfeiture law is unusually similar to federal laws of yore that were repealed some time ago.

Charles Basler compares the advent of civil asset forfeiture laws in America: pirates, smugglers, and The First Congress fighting the good fight to keep the country together, with their modification to suit America’s war on drugs in the 1970’s and 80’s. The technique Charles Basler employs sheds light to why Congress passed CAFRA in the mid 1990’s. No longer could The United States of America set its machine down upon unrepresented indigents — with scant notice of impending battle — take their property on probable cause that it was connected to an alleged crime, and force a court-room brawl. Basler shows how CAFRA brought Due Process.

Additionally, Charles Basler stands upon a rock of authority. He discusses why the Commonwealth of Massachusetts, along with only five other states, received an “F” grade for its civil asset forfeiture laws. He shows, the absurd state of the commonwealth’s law with authority. To seize property, the Commonwealth has the lowest burden of proof imposable under American law. After taking an indigents’ property, the Commonwealth allows litigation with an unrepresented foe. Forcing the property owner to prove by a preponderance of the evidence — a negative — before the owner may rightfully walk away with their property. Charles Basler hardly needs to explain the obvious result: the Commonwealth watches default judgments roll in at a rate that may be as high as 90%.

Charles Basler does not argue for unconventional law, and he does not stand alone. He shows that the Commonwealth of Massachusetts’ civil asset forfeiture laws lie, teetering, at the brink of Due Process. Charles Basler’s Note, Reforming Civil Asset Forfeiture: Ensuring Fairness and Due Process for Property Owners in Massachusetts is being published in V. 49 Book 4.


Contributing Editor: Greg Mosher

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