In Hampden County (MA), a Prosecutor's Forfeiture Funded Largesse

Barry Kriger from Channel 22 WWLP reports:

The Hampden County District Attorney's office has found a way to turn a "negative" into a huge "positive" for the community.

DA Mark Mastroianni handed out three 10-thousand dollar checks to three groups that focus on helping young people.

The money is seized during drug investigations.

The Gray House received one of the grants which will support their "Kids Club" after school program for kids in Springfield's North End."

"We provide academic support for them. Engage them in constructive activities and provide them with a healthy meal at night before they go home to their families," said Dana Calvanese, Executive Director of The Gray House.

"So it is gratifying for us to turn a very negative source of income, being drug sales, and turn it around into a way it can benefit the community," said Mastroianni.

The other two organizations receiving a ten thousand dollar check from the DA:  Big Brothers Big Sisters of Hampden County, and Boys & Girls Club of Greater Holyoke.

The ability of prosecutors in Massachusetts to delegate forfeiture revenues free from legislative appropriation endangers the democratic structure of Massachusetts governance. Further, this system injects dangerous political incentives into the prosecutors office, incentivizing systemic threats to basic rights of property and liberty.

The first issue is simple: if public funds are being spent, they should be exclusively tied to the appropriations of democratically elected legislatures. Allowing the executive to capture what is essentially a legislative power makes it more difficult for citizens to exercise democratic control over government by allowing the executive branch great independence to determine the size, priorities, and contours of its activities. This implicates not only the outcomes of public policy, but also the process, by making the channels of decision-making more diffuse and more costly to for voters to monitor. Indeed, Mastroianni's decision to fund "drug education" and "anti-drug programs" are decisions loaded with political implications made without any input from a democratic process. 

Where executive branch agents also face political incentives, this has additional and far-reaching implications. Giving money to local nonprofits is a great way to generate goodwill and political capital; for prosecutors, this is a great way to remain incumbent (in Massachusetts, the district attorney is an elected position). Indeed, this system would incentivize prosecutors aggressively pursue asset forfeiture under one of the worst forfeiture regimes in the nation for political reasons.

The civil liberties implications are likewise enormous. As the Institute for Justice notes:

Massachusetts has a terrible civil forfeiture regime.  Under Massachusetts civil forfeiture law, law enforcement need only show probable cause that your property was related to a crime to forfeit it.  You are then in effect guilty until proven innocent, as you must shoulder the burden of proving that the property was not forfeitable or that you did not know and should not have known about the conduct giving rise to the forfeiture.  Further, law enforcement keeps 100 percent of all forfeited property.  The receipts are split: half to the prosecutor’s office and half to the local or state police.

And there are also substantial possibilities for abuse when prosecutors and law enforcement use their relationships with federal agencies to access forfeiture revenues through the federal "Equitable Sharing" program. Indeed, the annual DOJ Asset Forfeiture Report to Congress notes that in 2012 the Hampden County District Attorney received some $27,000 in Equitable Sharing funds. 

It's time for the Massachusetts legislature to re-assert the power of the purse. It would be a simple reform to mandate forfeiture revenues be sent to the general fund of each jurisdiction for legislative appropriation. This sensible policy would ensure the alignment of executive branch policy with voter desire, remove perverse political incentives from law enforcement, and protect basic rights to property and liberty.

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