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| 2 | 2 | | HOUSE DOCKET, NO. 1780 FILED ON: 1/18/2023 |
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| 3 | 3 | | HOUSE . . . . . . . . . . . . . . . No. 1642 |
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| 4 | 4 | | The Commonwealth of Massachusetts |
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| 5 | 5 | | _________________ |
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| 6 | 6 | | PRESENTED BY: |
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| 7 | 7 | | Jay D. Livingstone |
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| 8 | 8 | | _________________ |
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| 9 | 9 | | To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General |
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| 10 | 10 | | Court assembled: |
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| 11 | 11 | | The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill: |
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| 12 | 12 | | An Act relative to forfeiture reform. |
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| 13 | 13 | | _______________ |
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| 14 | 14 | | PETITION OF: |
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| 15 | 15 | | NAME:DISTRICT/ADDRESS :DATE ADDED:Jay D. Livingstone8th Suffolk1/18/2023 1 of 12 |
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| 16 | 16 | | HOUSE DOCKET, NO. 1780 FILED ON: 1/18/2023 |
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| 17 | 17 | | HOUSE . . . . . . . . . . . . . . . No. 1642 |
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| 18 | 18 | | By Representative Livingstone of Boston, a petition (accompanied by bill, House, No. 1642) of |
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| 19 | 19 | | Jay D. Livingstone relative to forfeiture reform. The Judiciary. |
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| 20 | 20 | | The Commonwealth of Massachusetts |
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| 21 | 21 | | _______________ |
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| 22 | 22 | | In the One Hundred and Ninety-Third General Court |
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| 23 | 23 | | (2023-2024) |
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| 24 | 24 | | _______________ |
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| 25 | 25 | | An Act relative to forfeiture reform. |
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| 26 | 26 | | Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority |
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| 27 | 27 | | of the same, as follows: |
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| 28 | 28 | | 1 SECTION 1. Chapter 94C of the General Laws is hereby amended by striking section 47. |
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| 29 | 29 | | 2 SECTION 2. Chapter 265 of the General Laws is hereby amended by striking section 56. |
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| 30 | 30 | | 3 SECTION 3. Chapter 280 of the General Laws is hereby amended by inserting after |
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| 31 | 31 | | 4section 16 the following new section:- |
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| 32 | 32 | | 5 Section 17 |
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| 33 | 33 | | 6 (a) For the purposes of this section the following terms, shall, unless the context clearly |
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| 34 | 34 | | 7indicates otherwise, have the following meanings:- |
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| 35 | 35 | | 8 “Abandoned property”, personal property left by an owner who intentionally relinquishes |
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| 36 | 36 | | 9all rights to its control. Real property may not be abandoned. |
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| 37 | 37 | | 10 “Actual knowledge”, direct and clear awareness of information, a fact, or a condition. 2 of 12 |
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| 38 | 38 | | 11 “Contraband”, goods that are unlawful to import, export, or possess under the laws of the |
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| 39 | 39 | | 12commonwealth. “Contraband” does not include marijuana grown, manufactured, bought, sold, or |
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| 40 | 40 | | 13possessed lawfully under Massachusetts law. |
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| 41 | 41 | | 14 “Constructive knowledge”, awareness of information, a fact, or a condition that a person |
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| 42 | 42 | | 15is presumed to have, since such knowledge is obtainable by the exercise of reasonable care. |
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| 43 | 43 | | 16 “Conveyance”, a device used for transportation and includes a motor vehicle, trailer, |
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| 44 | 44 | | 17snowmobile, airplane, and vessel, and any equipment attached to it. |
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| 45 | 45 | | 18 “Instrumentality”, property otherwise lawful to possess that is used in the furtherance or |
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| 46 | 46 | | 19commission of an offense of a law subject to forfeiture. An “instrumentality” may include land, |
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| 47 | 47 | | 20buildings, a container, a conveyance, equipment, materials, products, a tool, a computer, |
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| 48 | 48 | | 21computer software, a telecommunications device, a firearm or ammunition. |
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| 49 | 49 | | 22 “Law enforcement agency”, any non-federal police department, law enforcement council, |
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| 50 | 50 | | 23or other entity with employees duly and properly authorized under the law of the commonwealth |
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| 51 | 51 | | 24to engage in seizure and forfeiture. |
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| 52 | 52 | | 25 “Law subject to forfeiture”, a law of the commonwealth that carries a felony penalty and |
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| 53 | 53 | | 26that explicitly includes forfeiture as a punishment or sanction for the offense. |
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| 54 | 54 | | 27 “Proceeds”, money, securities, negotiable instruments or other means of exchange |
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| 55 | 55 | | 28obtained by the sale of property. |
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| 56 | 56 | | 29 (b) (1) When a person is convicted of violating a law subject to forfeiture, the court, |
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| 57 | 57 | | 30consistent with this section, may order the person to forfeit: (i) Proceeds the person derived from |
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| 58 | 58 | | 31the commission of the crime; (ii) Property directly traceable to proceeds derived from the 3 of 12 |
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| 59 | 59 | | 32commission of the crime; and (iii) Instrumentalities the person used in the commission of the |
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| 60 | 60 | | 33crime. |
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| 61 | 61 | | 34 (2) An estate of homestead, a motor vehicle of less than $10,000 in market value, and |
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| 62 | 62 | | 35U.S. currency totaling $200 or less are exempt from forfeiture. |
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| 63 | 63 | | 36 (3) No property right exists in contraband. Contraband is subject to seizure and shall be |
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| 64 | 64 | | 37disposed of according to state law. Contraband is not subject to forfeiture under this section. |
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| 65 | 65 | | 38 (c) Property may be forfeited if: |
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| 66 | 66 | | 39 (1) the offense is a violation of section 32, 32A, 32B, 32C, 32D, 32E, 32F, 32G, 32I, 32J |
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| 67 | 67 | | 40or 40 of chapter 94C, or section 50 or 51 of chapter 256; |
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| 68 | 68 | | 41 (2) the offense is established by proof of a criminal conviction; and |
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| 69 | 69 | | 42 (3) the commonwealth establishes that the property is forfeitable under this section by |
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| 70 | 70 | | 43clear and convincing evidence. |
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| 71 | 71 | | 44 Nothing herein prevents property from being forfeited by plea agreement approved by the |
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| 72 | 72 | | 45presiding criminal court, but only if the property is shown by clear and convincing evidence to |
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| 73 | 73 | | 46be otherwise subject to forfeiture. |
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| 74 | 74 | | 47 The court may waive the conviction requirement if the commonwealth shows by clear |
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| 75 | 75 | | 48and convincing evidence that the defendant: |
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| 76 | 76 | | 49 (1)died; |
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| 77 | 77 | | 50 (2)was deported by the U.S. government; 4 of 12 |
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| 78 | 78 | | 51 (3)is granted immunity in exchange for testifying or otherwise assisting a law |
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| 79 | 79 | | 52enforcement investigation or prosecution; or |
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| 80 | 80 | | 53 (4) without justification, failed to appear in court for a properly-noticed proceeding after |
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| 81 | 81 | | 54being charged, arraigned, and released on bail or personal recognizance, and failed to remove the |
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| 82 | 82 | | 55default within 90 days. |
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| 83 | 83 | | 56 A waiver may be granted only if the property is shown by clear and convincing evidence |
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| 84 | 84 | | 57to be otherwise subject to forfeiture. Notwithstanding a motion for a waiver, the property shall |
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| 85 | 85 | | 58remain subject to claims by innocent owners, creditors and other third parties pursuant to this |
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| 86 | 86 | | 59section. |
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| 87 | 87 | | 60 (d) (1) A district attorney or the attorney general may petition the superior court in the |
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| 88 | 88 | | 61name of the commonwealth, following a conviction, at which time a hearing may be held |
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| 89 | 89 | | 62wherein the court may order the forfeiture of substitute property owned by the defendant up to |
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| 90 | 90 | | 63the value of unreachable property that is beyond the court’s jurisdiction or cannot be located |
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| 91 | 91 | | 64through due diligence, but only if the commonwealth proves by a preponderance of the evidence |
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| 92 | 92 | | 65that the defendant intentionally transferred, sold, or deposited property with a third party to avoid |
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| 93 | 93 | | 66the court’s jurisdiction. |
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| 94 | 94 | | 67 (2) The commonwealth may not seek personal money judgments or other remedies not |
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| 95 | 95 | | 68provided for in this section. |
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| 96 | 96 | | 69 (f) A defendant is not jointly and severally liable for forfeiture awards owed by other |
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| 97 | 97 | | 70defendants. When ownership is unclear, a court may order each defendant to forfeit property on a |
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| 98 | 98 | | 71pro rata basis or by another means the court finds equitable. 5 of 12 |
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| 99 | 99 | | 72 (g) (1) At the request of the commonwealth at any time, a court may issue an ex parte |
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| 100 | 100 | | 73preliminary order to attach, seize or secure personal property for which forfeiture is sought and |
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| 101 | 101 | | 74to provide for its custody. Application, issuance, execution, and return are subject to the laws of |
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| 102 | 102 | | 75the commonwealth and court rules. |
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| 103 | 103 | | 76 (2) Personal property subject to forfeiture may be seized at any time without a court order |
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| 104 | 104 | | 77if: (i) The seizure of personal property is incident to a lawful arrest or a search lawfully |
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| 105 | 105 | | 78conducted; (ii) The personal property subject to seizure has been the subject of a prior judgment |
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| 106 | 106 | | 79in favor of the commonwealth; or (iii) The commonwealth has probable cause to believe that the |
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| 107 | 107 | | 80delay occasioned by the necessity to obtain process would result in the removal or destruction of |
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| 108 | 108 | | 81the personal property and that the personal property is forfeitable under this section. |
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| 109 | 109 | | 82 (3) The mere presence or possession of U.S. or other currency, without other indicia, is |
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| 110 | 110 | | 83insufficient probable cause for seizure. |
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| 111 | 111 | | 84 (4) Seizure of real property requires a court order. A court may issue an order to seize or |
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| 112 | 112 | | 85secure real property for which forfeiture is sought only after proper notice to property owners |
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| 113 | 113 | | 86and an opportunity for a contested hearing to determine the sufficiency of probable cause for the |
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| 114 | 114 | | 87seizure. Nothing in this section prohibits the prosecuting authority from seeking a lis pendens or |
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| 115 | 115 | | 88restraining order to hinder the sale or destruction of the real property. Application, issuance, |
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| 116 | 116 | | 89execution, and return of any order are subject to the laws and court rules of the commonwealth. |
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| 117 | 117 | | 90 (5) When property is seized, the law enforcement officer shall give an itemized receipt to |
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| 118 | 118 | | 91the person possessing the property; or in the absence of any person, leave a receipt in the place |
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| 119 | 119 | | 92where the property was found, if reasonably possible. 6 of 12 |
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| 120 | 120 | | 93 (6) At the time of seizure or entry of a restraining order, the commonwealth acquires |
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| 121 | 121 | | 94provisional title to the seized property. Provisional title authorizes the commonwealth to hold |
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| 122 | 122 | | 95and protect the property. Title to the property vests with the commonwealth when the trier of fact |
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| 123 | 123 | | 96renders a final forfeiture verdict and relates back to the time when the state acquired provisional |
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| 124 | 124 | | 97title. However, this title is subject to claims by third parties adjudicated under this section. |
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| 125 | 125 | | 98 (h) Following the seizure of property, a defendant or third party claimant has a right to a |
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| 126 | 126 | | 99pretrial hearing to determine the validity of the seizure. Reasonable notice of the right to a |
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| 127 | 127 | | 100pretrial hearing must be provided to claimants who may have a right to possession of property. |
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| 128 | 128 | | 101 At any time before trial of the related criminal offense the claimant may claim the right to |
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| 129 | 129 | | 102possession of property by motion to the court to issue a writ of replevin, which motion shall |
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| 130 | 130 | | 103establish the validity of the alleged interest in the property. |
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| 131 | 131 | | 104 The court shall issue a writ of replevin if it finds that: (1) it is likely the final judgment |
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| 132 | 132 | | 105will be that the commonwealth must return the property to the claimant; (2) the property is not |
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| 133 | 133 | | 106reasonably required to be held for investigatory reasons; or (3) the property is the only |
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| 134 | 134 | | 107reasonable means for a defendant to pay for legal representation in the forfeiture or criminal |
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| 135 | 135 | | 108proceeding. At the court’s discretion, it may order the return of funds or property sufficient to |
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| 136 | 136 | | 109obtain legal counsel but less than the total amount seized, and require an accounting. |
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| 137 | 137 | | 110 In lieu of ordering the issuance of the writ, the court may order the commonwealth to |
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| 138 | 138 | | 111give security or written assurance for satisfaction of any judgment, including damages, that may |
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| 139 | 139 | | 112be rendered in the action, or order other relief as may be just. 7 of 12 |
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| 140 | 140 | | 113 (i) The litigation related to the forfeiture of property shall be held in a single proceeding |
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| 141 | 141 | | 114following the trial of the related alleged offense. The litigation of whether property of less than |
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| 142 | 142 | | 115$10,000 in value shall be forfeited shall be held before only a judge. |
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| 143 | 143 | | 116 Within 7 days of the seizure of property or simultaneously upon filing a related criminal |
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| 144 | 144 | | 117indictment, the commonwealth shall file a forfeiture charge that shall include: (1) a description |
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| 145 | 145 | | 118of the property seized; (2) the date and place of seizure of the property; (3) the name and address |
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| 146 | 146 | | 119of the law enforcement agency making the seizure; (4) the specific statutory and factual grounds |
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| 147 | 147 | | 120for the seizure; (5) whether the property was seized pursuant to an order of seizure, and if the |
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| 148 | 148 | | 121property was seized without an order of seizure, an affidavit from a law enforcement officer |
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| 149 | 149 | | 122stating the legal and factual grounds why an order of seizure was not required; and (6) the names |
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| 150 | 150 | | 123of persons known to the commonwealth who may claim an interest in the property and the basis |
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| 151 | 151 | | 124for each person's alleged interest. |
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| 152 | 152 | | 125 The charging document shall be served upon the person from whom the property was |
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| 153 | 153 | | 126seized, the person's attorney of record and all persons known or reasonably believed to claim an |
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| 154 | 154 | | 127interest in the property. |
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| 155 | 155 | | 128 (j) At any time following determination of forfeiture by the trier of fact, the defendant |
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| 156 | 156 | | 129may petition the court to determine whether the forfeiture is unconstitutionally excessive under |
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| 157 | 157 | | 130the Massachusetts or federal constitution. The defendant has the burden of establishing the |
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| 158 | 158 | | 131forfeiture is grossly disproportional to the seriousness of the offense by a preponderance of the |
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| 159 | 159 | | 132evidence at a hearing conducted by the court without a jury. |
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| 160 | 160 | | 133 In determining whether the forfeiture of an instrumentality is unconstitutionally |
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| 161 | 161 | | 134excessive, the court may consider all relevant factors, including, but not limited to: (a) the 8 of 12 |
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| 162 | 162 | | 135seriousness of the offense and its impact on the community, including the duration of the activity |
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| 163 | 163 | | 136and the harm caused by the defendant; (b) the extent to which the defendant participated in the |
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| 164 | 164 | | 137offense; (c) the extent to which the property was used in committing the offense; (d) the sentence |
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| 165 | 165 | | 138imposed for committing the crime subject to forfeiture; and (e) whether the offense was |
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| 166 | 166 | | 139completed or attempted. |
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| 167 | 167 | | 140 In determining the value of the instrumentality subject to forfeiture, the court may |
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| 168 | 168 | | 141consider all relevant factors, including, but not limited to: (a) the fair market value of the |
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| 169 | 169 | | 142property; (b) the value of the property to the defendant including hardship to the defendant if the |
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| 170 | 170 | | 143forfeiture is realized; and (c) the hardship from the loss of a primary residence, motor vehicle or |
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| 171 | 171 | | 144other property to the defendant’s family members or others if the property is forfeited. The court |
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| 172 | 172 | | 145may not consider the value of the instrumentality to the commonwealth in determining whether |
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| 173 | 173 | | 146the forfeiture of an instrumentality is constitutionally excessive. |
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| 174 | 174 | | 147 (k) Property encumbered by a bona fide security interest is not subject to forfeiture. A |
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| 175 | 175 | | 148person claiming a security interest must establish by a preponderance of the evidence the validity |
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| 176 | 176 | | 149of the interest perfected under law, or a lease or rental agreement. The prosecuting authority shall |
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| 177 | 177 | | 150summarily return property to the person with a bona fide security interest. |
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| 178 | 178 | | 151 If the person alleges a valid security interest but the commonwealth seeks to proceed with |
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| 179 | 179 | | 152the forfeiture against the property, the commonwealth shall prove by a preponderance of the |
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| 180 | 180 | | 153evidence that the person had actual knowledge of the underlying crime giving rise to the |
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| 181 | 181 | | 154forfeiture. |
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| 182 | 182 | | 155 (l) A conveyance used by any person as a common carrier in the transaction of business |
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| 183 | 183 | | 156as a common carrier is not subject to forfeiture, unless the commonwealth proves by a 9 of 12 |
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| 184 | 184 | | 157preponderance of the evidence that the owner or other person in charge of the conveyance had |
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| 185 | 185 | | 158actual knowledge of the underlying crime giving rise to the forfeiture. |
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| 186 | 186 | | 159 A conveyance is not subject to forfeiture if the underlying crime giving rise to the |
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| 187 | 187 | | 160forfeiture was committed by a person other than the owner of the conveyance while the |
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| 188 | 188 | | 161conveyance was stolen or taken in violation of the law. |
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| 189 | 189 | | 162 (m) The property of an innocent owner may not be forfeited. A person who has an |
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| 190 | 190 | | 163ownership interest in property subject to forfeiture existing at the time the illegal conduct giving |
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| 191 | 191 | | 164rise to forfeiture occurred, or who acquired an ownership interest in property subject to forfeiture |
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| 192 | 192 | | 165after the commission of a crime giving rise to forfeiture, and who claims to be an innocent owner |
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| 193 | 193 | | 166bears the burden of proving by clear and convincing evidence that the person has a legal right, |
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| 194 | 194 | | 167title, or interest in the property seized under this section. |
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| 195 | 195 | | 168 If the commonwealth seeks to proceed with the forfeiture against the property, the |
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| 196 | 196 | | 169commonwealth shall prove by clear and convincing evidence that the person had actual or |
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| 197 | 197 | | 170constructive knowledge of the underlying crime giving rise to the forfeiture, or, in the case of a |
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| 198 | 198 | | 171person who acquired an ownership interest in property subject to forfeiture after the commission |
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| 199 | 199 | | 172of a crime giving rise to forfeiture, the commonwealth shall prove by clear and convincing |
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| 200 | 200 | | 173evidence that at the time the person acquired the property the person: (a) had actual or |
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| 201 | 201 | | 174constructive knowledge that the property was subject to forfeiture; or (b) was not a bona fide |
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| 202 | 202 | | 175purchaser without notice of any defect in title and for valuable consideration. |
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| 203 | 203 | | 176 If the commonwealth fails to meet its burden of proof, the court shall find that the person |
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| 204 | 204 | | 177is an innocent owner and shall order the commonwealth to relinquish all claims of title to the |
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| 205 | 205 | | 178property. The defendant or convicted offender may invoke the right against self-incrimination or 10 of 12 |
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| 206 | 206 | | 179the marital privilege during the forfeiture-related stage of the prosecution. The trier of fact at the |
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| 207 | 207 | | 180hearing may not draw an adverse inference from the invocation of the right or privilege. |
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| 208 | 208 | | 181 (n) (1) At any time when unclaimed property or contraband held for evidentiary purposes |
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| 209 | 209 | | 182is no longer needed for that purpose, the court may order it be delivered to the state treasurer |
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| 210 | 210 | | 183within 30 days, or, in the case of contraband, be destroyed within 30 days. If the forfeiture is |
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| 211 | 211 | | 184granted, the court shall order the property be delivered to the treasurer within 30 days. All |
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| 212 | 212 | | 185abandoned property shall be delivered to the treasurer within 30 days. |
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| 213 | 213 | | 186 The treasurer shall dispose of all non-currency forfeited and abandoned property at public |
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| 214 | 214 | | 187auction. The auction proceeds and forfeited currency shall first be used to pay all outstanding |
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| 215 | 215 | | 188recorded liens on the forfeited property, then to comply with an order of the court to pay |
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| 216 | 216 | | 189reasonable non-personnel expenses, with all remaining funds to be deposited into the general |
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| 217 | 217 | | 190fund. |
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| 218 | 218 | | 191 Upon motion, the court may order that a portion of the currency seized or proceeds from |
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| 219 | 219 | | 192public auction be used to pay reasonable non-personnel expenses of the seizure, storage, and |
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| 220 | 220 | | 193maintenance of custody of any forfeited items. |
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| 221 | 221 | | 194 (2) Forfeited property received from another jurisdiction, including the federal |
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| 222 | 222 | | 195government, shall be transferred to the treasurer, sold by the treasurer or designee, and deposited |
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| 223 | 223 | | 196in the general fund. Proceeds from the sale of forfeited property received from another |
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| 224 | 224 | | 197jurisdiction, including the federal government, must be transferred to the treasurer and deposited |
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| 225 | 225 | | 198in the general fund. 11 of 12 |
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| 226 | 226 | | 199 If federal law prohibits compliance with this subsection, state and local law enforcement |
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| 227 | 227 | | 200agencies shall be prohibited from seeking or accepting forfeited property or proceeds from the |
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| 228 | 228 | | 201federal government. |
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| 229 | 229 | | 202 (3) No law enforcement agency may retain forfeited or abandoned property for its own |
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| 230 | 230 | | 203use or sell it directly or indirectly to any employee of the agency, to a person related to an |
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| 231 | 231 | | 204employee by blood or marriage, or to another law enforcement agency. |
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| 232 | 232 | | 205 (o) On an annual basis, each law enforcement agency shall report to the attorney general |
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| 233 | 233 | | 206the following information about seizures and forfeitures completed by the agency under this |
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| 234 | 234 | | 207section and federal forfeiture law: (1) the total number of seizures of currency; (2) the total |
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| 235 | 235 | | 208number of seizures and the number of items in each class of property seized including vehicles, |
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| 236 | 236 | | 209houses, and other types of property seized; (3) the market value of each class of property seized |
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| 237 | 237 | | 210including currency, vehicles, houses, and other types of property seized; (4) the total number of |
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| 238 | 238 | | 211occurrences of each class of crime underlying the forfeitures including controlled substances, |
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| 239 | 239 | | 212driving while intoxicated, and other crimes; and (5) any additional information as directed by the |
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| 240 | 240 | | 213attorney general. |
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| 241 | 241 | | 214 The attorney general shall develop a uniform protocol for the annual submission of |
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| 242 | 242 | | 215forfeiture data by law enforcement agencies. If a law enforcement agency fails to file a report |
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| 243 | 243 | | 216within 30 days after it is due, the attorney general may compel compliance. |
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| 244 | 244 | | 217 Each law enforcement agency shall file with the attorney general separate reports for |
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| 245 | 245 | | 218forfeitures completed under this section and under federal forfeiture law. A null report shall be |
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| 246 | 246 | | 219filed by a law enforcement agency that did not engage in seizures or forfeitures during the 12 of 12 |
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| 247 | 247 | | 220reporting period. The attorney general shall compile the submissions and issue an aggregate |
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| 248 | 248 | | 221report of all forfeitures in the state. |
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| 249 | 249 | | 222 By April 1 of each year, the attorney general shall make available on its website the |
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| 250 | 250 | | 223reports submitted by each law enforcement agency and its aggregate report. |
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| 251 | 251 | | 224 (p) The law enforcement agency that holds the property shall return property to the owner |
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| 252 | 252 | | 225within a reasonable period of time not to exceed five days after: (1) the court finds that the owner |
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| 253 | 253 | | 226had a bona fide security interest; (2) the court finds that the owner was an innocent owner; (3) |
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| 254 | 254 | | 227the acquittal of or dismissal of the owner of the criminal charge that is the basis of the forfeiture |
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| 255 | 255 | | 228proceedings; or (4) the disposal of the criminal charge that is the basis of the forfeiture |
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| 256 | 256 | | 229proceedings by nolle prosequi. |
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| 257 | 257 | | 230 The law enforcement agency that holds the property is responsible for any damages, |
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| 258 | 258 | | 231storage fees and related costs applicable to property returned under this subsection. |
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| 259 | 259 | | 232 (q) A law enforcement agency or prosecuting authority may not enter into an agreement |
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| 260 | 260 | | 233to transfer or refer seized property to a federal agency directly, indirectly, by adoption, through |
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| 261 | 261 | | 234an intergovernmental joint taskforce or by other means for the purposes of forfeiture litigation |
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| 262 | 262 | | 235and instead must refer the seized property to the local district attorney or the attorney general for |
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| 263 | 263 | | 236forfeiture litigation under this section unless the seized property includes U.S. currency in excess |
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| 264 | 264 | | 237of $50,000. Nothing in this subsection shall be construed to limit or prohibit Massachusetts law |
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| 265 | 265 | | 238enforcement agencies from collaborating with a federal agency to seize contraband and property |
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| 266 | 266 | | 239that law enforcement has probable cause to believe is the proceeds or instruments of a crime. |
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