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