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Research & Commentary: Massachusetts Should Reform Civil Asset Forfeiture Laws to Address Opioid Epidemic

October 21, 2019

Massachusetts should move to require convictions in order to seize forfeited property and divert forfeited proceeds to programs including rehabilitation, medication-assisted treatment and drug courts to address rising costs of the opioid epidemic.

The Commonwealth of Massachusetts ranks “among the top ten states with the highest rates of drug overdoses involving opioids.” According to the National Institute on Drug Abuse, there were an estimated 1,913 opioid-related drug overdose deaths in Massachusetts in 2017. Further, from 2000 to 2017, more than 15,000 Massachusetts residents died from an opioid-related drug overdose.

Addressing the opioid epidemic has been costly to the Bay State. A 2018 report by the Massachusetts Taxpayers Foundation estimated the opioid crisis cost the Commonwealth $15.2 billion in 2017, including costs attributable to lost economic productivity and “opioid programs and services across systems (health care providers, the state and municipalities).”

A 2018 report by the American Action Forum (AAF) estimated the Bay State’s economy has “cumulatively lost $40.9 billion in real economic output” from 1999 to 2015 due to the opioid epidemic. AAF estimates during this period, 50,800 workers have been missing from the Commonwealth’s economy due to opioid use disorder (OUD) and had these workers been in the labor force, “the state’s economy would have grown about 30 percent faster.”

Although there are many ways state lawmakers can address the opioid epidemic, several states are relying too much on the federal government. For example, Massachusetts has received more than $90 million in State Opioid Response Grants from the U.S. Department of Health and Human Services. The opioid epidemic also costs MassHealth, the Commonwealth’s Medicaid and Children’s Health Insurance Program, $860 million annually.

It is foolish to believe the federal government is able to adequately address the opioid epidemic. The national government almost always takes a one-size-fits-all approach to solving these problems. In other words, bureaucrats in Washington, DC are less able to understand the nuances of such problems than state and local lawmakers.

Moreover, the federal government is $22 trillion in debt. It is naive for states to rely on robust federal assistance in regards to the opioid crisis, as well as several other problems on the horizon. Payments from the federal government to the Affordable Care Act’s Medicaid expansion coverage have dropped from 100 percent “to 95 percent in 2017, 94 percent in 2018, and 93 percent in 2019 and will settle at 90 percent in 2020 and each year thereafter.” It seems likely that the federal government will not provide adequate funds to address an unabated opioid crisis in the states.

One policy Massachusetts lawmakers can use to address the increasing costs of the opioid epidemic is to reform the Commonwealth’s current civil asset forfeiture laws to criminal asset forfeiture.

Currently, Massachusetts has some of the most poorly crafted civil asset forfeiture laws in the country. For property to be seized, Bay State law enforcement agencies need only “the existence of probable cause to institute the action, and any such claimant shall than have the burden of proving the property is not forfeitable.” In essence, the Commonwealth has the lowest bar to forfeit and the burden of proof is solely upon the person whose property has been seized. Further, all proceeds from seized forfeitures are distributed to prosecuting attorneys and law enforcement.

Adding fuel to the forfeiture fire, reporting of forfeiture proceeds is minimal at best. Although “[t]he attorney general, each district attorney and each police department … shall file an annual report with the treasurer regarding all assets” seized from forfeitures, there is no requirement to divulge how seized assets were used by the agencies. The Institute for Justice gives Massachusetts a D+ grade in its 2019 Forfeiture Transparency & Accountability report. A Freedom of Information Request by Muckrock, a nonprofit news site that shares government documents, noted that Bristol County reported a stunning $700,000 in asset forfeitures in 2015. Of this, not a single penny was allocated to “drug rehabilitation, drug education, and other anti-drug or neighborhood crime watch programs.” On the other hand, $600,000 went to “technical equipment or expertise.”

Massachusetts should reform its unfair forfeiture laws by requiring convictions in order to seize property and ordering greater reporting requirements for agencies receiving seized funds. Further, seized assets brought forth by criminal drug convictions should be allocated to programs that directly address the opioid epidemic.

Currently, there are two bills in the Massachusetts House that would reform civil asset forfeiture to criminal asset forfeiture. H.1522 and H.3367 require a conviction by “clear and convincing evidence” in order for property to be forfeited. Although, H.1522 does require monthly reports by the seizing agency, neither legislation requires more details on forfeitures other than what is being seized. Further, in both bills, disposition of proceeds after satisfying the defendant’s liens (including outstanding debt, child support, etc.) allow for seizing agencies to retain forfeited proceeds for non-personnel purposes and remaining funding is diverted to the Commonwealth’s general fund.

Massachusetts could solve this by simply allocating funds related to criminal drug convictions go to treat OUD. For example, Georgia has reformed its state asset forfeiture laws to direct moneys to rehabilitation and other programs. In 2015, the Georgia General Assembly passed H.B. 233, which reformed the state’s civil asset forfeiture laws. Under the “Georgia Uniform Civil Forfeiture Procedure Act,” proceeds from forfeitures can be used “for drug treatment, mental health treatment, rehabilitation, prevention, or education or any other program which deters drug or substance abuse or responds to problems created by drugs or substance abuse; for use as matching funds for grant programs related to drug treatment or prevention; to fund victim assistance; or for any combination of the foregoing.”

The cost of the opioid epidemic to states is staggering. From 2011 to 2017, MassHealth provided more than $341 million in buprenorphine prescriptions, a medication-assisted treatment drug, known to help prevent relapse in OUD patients. The 2019 Massachusetts budget provides $164.2 million to the Department of Public Health for “substance abuse and misuse services.”

Massachusetts could also allocate funding to drug courts. Current programs in Massachusetts were used as examples by President Trump’s commission on the opioid crisis. Further, the Massachusetts Bar Association estimated drug courts could “save the state over $8 million annually by transferring more than 1,400 low-level drug offenders out of jail and into substance abuse treatment”

The Massachusetts’ economy has suffered exorbitant costs related to the opioid epidemic. Moreover, the Commonwealth’s current civil asset forfeiture laws are unconstitutional and lack transparency. By improving current laws, Massachusetts lawmakers could both reform civil asset forfeiture and address the opioid epidemic.

The following articles provide more information on civil asset forfeiture

 

Research & Commentary: Further Reforms to Ohio’s Civil Asset Forfeiture Laws Could Address State’s Opioid Crisis
https://www.heartland.org/publications-resources/publications/research--commentary-further-reforms-to-ohios-civil-asset-forfeiture-laws-could-address-states-opioid-crisis
Lindsey Stroud, a state government relations manager at The Heartland Institute examines Ohio’s current asset forfeiture laws, which were reformed in 2017, to require clear and convincing evidence and required criminal convictions in order to seize property valued at $15,000 or less. Stroud notes that Ohio could further reform this, by requiring all seized assets, no matter the monetary amount, to be subject to criminal convictions prior to seizing assets. Further, seized assets from forfeitures should be diverted to specific programs, including rehabilitation, medication-assisted treatment and drug courts, in an effort to abate the state’s opioid epidemic.

Research & Commentary: Reforming Maine’s Civil Asset Forfeiture Laws Could Help Opioid Epidemic
https://www.heartland.org/publications-resources/publications/research--commentary-reforming-maines-civil-asset-forfeiture-laws-could-help-opioid-epidemic
The Heartland Institute’s State Government Relations Manager Lindsey Stroud examines how Maine should reform its current civil asset forfeiture laws to “criminal asset forfeiture” and divert seized proceeds to programs including drug rehabilitation, counseling, and criminal court, among other programs aimed at decreasing opioid abuse.

Research & Commentary: State Medicaid Costs Associated with Opioid Use Disorder Tripled from 1999 to 2013
https://www.heartland.org/publications-resources/publications/research--commentary-state-medicaid-costs-associated-with-opioid-use-disorder-tripled-from-1999-to-2013
In this Research & Commentary, Lindsey Stroud, state government relations manager at The Heartland Institute, examines a study by Penn State researchers which found the costs of the opioid epidemic to states’ Medicaid programs exceeded more than $3 billion in 2013. Stroud notes that “overall societal costs” of opioid use disorder, including health care, criminal justice and workplace costs have increased by over 565 percent.

Policing for Profit: The Abuse of Civil Asset Forfeiture 
https://www.heartland.org/publications-resources/publications/policing-for-profit-the-abuse-of-civil-asset-forfeiture?source=policybot
Marian Williams, Jefferson Holcomb, Tomislav Kovandzic, and Scott Bullock argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent,” they write.

Civil Asset Forfeiture, Equitable Sharing, and Policing for Profit in the United States
https://www.heartland.org/publications-resources/publications/civil-asset-forfeiture-equitable-sharing-and-policing-for-profit-in-the-united-states?source=policybot
Jefferson E. Holcomb and Marian R. Williams, professors in the department of Government and Justice Studies at Appalachian State University, and Tomislav V. Kovandzic, a professor in the University of Texas–Dallas School of Economic, Political, and Policy Studies, identify the effects of civil asset forfeiture reform on law enforcement activities. They write, “There is substantial anecdotal evidence that law enforcement [agencies] utilize a variety of tactics to generate the greatest revenue from their forfeiture operations,” a hypothesis their analysis of U.S. Department of Justice statistics confirms. 

Seize First, Question Later: The IRS and Civil Forfeiture 
https://www.heartland.org/publications-resources/publications/seize-first-question-later-the-irs-and-civil-forfeiture?source=policybot
Institute for Justice researcher Dick M. Carpenter II and attorney Larry Salzman examine the use and abuse of civil asset forfeiture laws by the Internal Revenue Service. “Federal civil forfeiture laws give the Internal Revenue Service the power to clean out bank accounts without charging their owners with any crime,” they write.

Civil Asset Forfeiture: 7 Things You Should Know
http://www.heritage.org/research/reports/2014/03/civil-asset-forfeiture-7-things-you-should-know
This Heritage Foundation Factsheet outlines several important things people should know about civil asset forfeiture. 

Civil Asset Forfeiture Reform Goes Mainstream https://www.heartland.org/publications-resources/publications/civil-asset-forfeiture-reform-goes-mainstream?source=policybot
Jordan Richardson of The Heritage Foundation discusses how the growing number of civil asset forfeiture abuses has drawn the attention of news media and suggests the increased attention may lead to real reform.

The Civil Asset Forfeiture Racket
http://reason.com/archives/2014/09/24/the-civil-asset-forfeiture-racket
A. Barton Hinkle of the Reason Foundation examines the growing problems created by civil asset forfeiture and argues for repeal of such laws.

Inequitable Justice: How Federal ‘Equitable Sharing’ Encourages Local Police and Prosecutors to Evade State Civil Forfeiture Law for Financial Gain
https://www.heartland.org/publications-resources/publications/inequitable-justice-how-federal-equitable-sharing-encourages-local-police-and-prosecutors-to-evade-state-civil-forfeiture-law-for-financial-gain?source=policybot
The Institute for Justice examines the federal law enforcement practice known as equitable sharing, which enables and indeed encourages state and local police and prosecutors to circumvent the civil forfeiture laws of their states for financial gain.

Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.

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