Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S1052 Compare Versions

Only one version of the bill is available at this time.

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2	2	SENATE DOCKET, NO. 2388 FILED ON: 1/20/2023
3	3	SENATE . . . . . . . . . . . . . . No. 1052
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Liz Miranda
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to forfeiture reform.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :Liz MirandaSecond Suffolk 1 of 11
16	16	SENATE DOCKET, NO. 2388 FILED ON: 1/20/2023
17	17	SENATE . . . . . . . . . . . . . . No. 1052
18	18	By Ms. Miranda, a petition (accompanied by bill, Senate, No. 1052) of Liz Miranda for
19	19	legislation relative to criminal forfeiture. The Judiciary.
20	20	[SIMILAR MATTER FILED IN PREVIOUS SESSION
21	21	SEE SENATE, NO. 965 OF 2021-2022.]
22	22	The Commonwealth of Massachusetts
23	23	_______________
24	24	In the One Hundred and Ninety-Third General Court
25	25	(2023-2024)
26	26	_______________
27	27	An Act relative to forfeiture reform.
28	28	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
29	29	of the same, as follows:
30	30	1 SECTION 1. Chapter 94C of the General Laws is hereby amended by striking section 47.
31	31	2 SECTION 2. Chapter 265 of the General Laws is hereby amended by striking section 56.
32	32	3 SECTION 3. Chapter 280 of the General Laws is hereby amended by inserting after
33	33	4section 16 the following new section:-
34	34	5 Section 17
35	35	6 (a) For the purposes of this section the following terms, shall, unless the context clearly
36	36	7indicates otherwise, have the following meanings:-
37	37	8 “Abandoned property”, personal property left by an owner who intentionally relinquishes
38	38	9all rights to its control. Real property may not be abandoned. 2 of 11
39	39	10 “Actual knowledge”, direct and clear awareness of information, a fact, or a condition.
40	40	11 “Contraband”, goods that are unlawful to import, export, or possess under the laws of the
41	41	12commonwealth. “Contraband” does not include marijuana grown, manufactured, bought, sold, or
42	42	13possessed lawfully under Massachusetts law.
43	43	14 “Constructive knowledge”, awareness of information, a fact, or a condition that a person
44	44	15is presumed to have, since such knowledge is obtainable by the exercise of reasonable care.
45	45	16 “Conveyance”, a device used for transportation and includes a motor vehicle, trailer,
46	46	17snowmobile, airplane, and vessel, and any equipment attached to it.
47	47	18 “Instrumentality”, property otherwise lawful to possess that is used in the furtherance or
48	48	19commission of an offense of a law subject to forfeiture. An “instrumentality” may include land,
49	49	20buildings, a container, a conveyance, equipment, materials, products, a tool, a computer,
50	50	21computer software, a telecommunications device, a firearm or ammunition.
51	51	22 “Law enforcement agency”, any non-federal police department, law enforcement council,
52	52	23or other entity with employees duly and properly authorized under the law of the commonwealth
53	53	24to engage in seizure and forfeiture.
54	54	25 “Law subject to forfeiture”, a law of the commonwealth that carries a felony penalty and
55	55	26that explicitly includes forfeiture as a punishment or sanction for the offense.
56	56	27 “Proceeds”, money, securities, negotiable instruments or other means of exchange
57	57	28obtained by the sale of property.
58	58	29 (b) (1) When a person is convicted of violating a law subject to forfeiture, the court,
59	59	30consistent with this section, may order the person to forfeit: (i) Proceeds the person derived from 3 of 11
60	60	31the commission of the crime; (ii) Property directly traceable to proceeds derived from the
61	61	32commission of the crime; and (iii) Instrumentalities the person used in the commission of the
62	62	33crime.
63	63	34 (2) An estate of homestead, a motor vehicle of less than $10,000 in market value, and
64	64	35U.S. currency totaling $200 or less are exempt from forfeiture.
65	65	36 (3) No property right exists in contraband. Contraband is subject to seizure and shall be
66	66	37disposed of according to state law. Contraband is not subject to forfeiture under this section.
67	67	38 (c) Property may be forfeited if:
68	68	39 (1) the offense is a violation of section 32, 32A, 32B, 32C, 32D, 32E, 32F, 32G, 32I, 32J
69	69	40or 40 of chapter 94C, or section 50 or 51 of chapter 256;
70	70	41 (2) the offense is established by proof of a criminal conviction; and
71	71	42 (3) the commonwealth establishes that the property is forfeitable under this section by
72	72	43clear and convincing evidence.
73	73	44 Nothing herein prevents property from being forfeited by plea agreement approved by the
74	74	45presiding criminal court, but only if the property is shown by clear and convincing evidence to
75	75	46be otherwise subject to forfeiture.
76	76	47 The court may waive the conviction requirement if the commonwealth shows by clear
77	77	48and convincing evidence that the defendant:
78	78	49 (1) died;
79	79	50 (2) was deported by the U.S. government; 4 of 11
80	80	51 (3) is granted immunity in exchange for testifying or otherwise assisting a law
81	81	52enforcement investigation or prosecution; or
82	82	53 (4) without justification, failed to appear in court for a properly-noticed proceeding after
83	83	54being charged, arraigned, and released on bail or personal recognizance, and failed to remove the
84	84	55default within 90 days.
85	85	56 A waiver may be granted only if the property is shown by clear and convincing evidence
86	86	57to be otherwise subject to forfeiture. Notwithstanding a motion for a waiver, the property shall
87	87	58remain subject to claims by innocent owners, creditors and other third parties pursuant to this
88	88	59section.
89	89	60 (d) (1) A district attorney or the attorney general may petition the superior court in the
90	90	61name of the commonwealth, following a conviction, at which time a hearing may be held
91	91	62wherein the court may order the forfeiture of substitute property owned by the defendant up to
92	92	63the value of unreachable property that is beyond the court’s jurisdiction or cannot be located
93	93	64through due diligence, but only if the commonwealth proves by a preponderance of the evidence
94	94	65that the defendant intentionally transferred, sold, or deposited property with a third party to avoid
95	95	66the court’s jurisdiction.
96	96	67 (2) The commonwealth may not seek personal money judgments or other remedies not
97	97	68provided for in this section.
98	98	69 (e) A defendant is not jointly and severally liable for forfeiture awards owed by other
99	99	70defendants. When ownership is unclear, a court may order each defendant to forfeit property on a
100	100	71pro rata basis or by another means the court finds equitable. 5 of 11
101	101	72 (f) (1) At the request of the commonwealth at any time, a court may issue an ex parte
102	102	73preliminary order to attach, seize or secure personal property for which forfeiture is sought and
103	103	74to provide for its custody. Application, issuance, execution, and return are subject to the laws of
104	104	75the commonwealth and court rules.
105	105	76 (2) Personal property subject to forfeiture may be seized at any time without a court order
106	106	77if: (i) The seizure of personal property is incident to a lawful arrest or a search lawfully
107	107	78conducted; (ii) The personal property subject to seizure has been the subject of a prior judgment
108	108	79in favor of the commonwealth; or (iii) The commonwealth has probable cause to believe that the
109	109	80delay occasioned by the necessity to obtain process would result in the removal or destruction of
110	110	81the personal property and that the personal property is forfeitable under this section.
111	111	82 (3) The mere presence or possession of U.S. or other currency, without other indicia, is
112	112	83insufficient probable cause for seizure.
113	113	84 (4) Seizure of real property requires a court order. A court may issue an order to seize or
114	114	85secure real property for which forfeiture is sought only after proper notice to property owners
115	115	86and an opportunity for a contested hearing to determine the sufficiency of probable cause for the
116	116	87seizure. Nothing in this section prohibits the prosecuting authority from seeking a lis pendens or
117	117	88restraining order to hinder the sale or destruction of the real property. Application, issuance,
118	118	89execution, and return of any order are subject to the laws and court rules of the commonwealth.
119	119	90 (5) When property is seized, the law enforcement officer shall give an itemized receipt to
120	120	91the person possessing the property; or in the absence of any person, leave a receipt in the place
121	121	92where the property was found, if reasonably possible. 6 of 11
122	122	93 (6) At the time of seizure or entry of a restraining order, the commonwealth acquires
123	123	94provisional title to the seized property. Provisional title authorizes the commonwealth to hold
124	124	95and protect the property. Title to the property vests with the commonwealth when the trier of fact
125	125	96renders a final forfeiture verdict and relates back to the time when the state acquired provisional
126	126	97title. However, this title is subject to claims by third parties adjudicated under this section.
127	127	98 (g) Following the seizure of property, a defendant or third party claimant has a right to a
128	128	99pretrial hearing to determine the validity of the seizure. Reasonable notice of the right to a
129	129	100pretrial hearing must be provided to claimants who may have a right to possession of property.
130	130	101 At any time before trial of the related criminal offense the claimant may claim the right to
131	131	102possession of property by motion to the court to issue a writ of replevin, which motion shall
132	132	103establish the validity of the alleged interest in the property.
133	133	104 The court shall issue a writ of replevin if it finds that: (1) it is likely the final judgment
134	134	105will be that the commonwealth must return the property to the claimant; (2) the property is not
135	135	106reasonably required to be held for investigatory reasons; or (3) the property is the only
136	136	107reasonable means for a defendant to pay for legal representation in the forfeiture or criminal
137	137	108proceeding. At the court’s discretion, it may order the return of funds or property sufficient to
138	138	109obtain legal counsel but less than the total amount seized, and require an accounting.
139	139	110 In lieu of ordering the issuance of the writ, the court may order the commonwealth to
140	140	111give security or written assurance for satisfaction of any judgment, including damages, that may
141	141	112be rendered in the action, or order other relief as may be just. 7 of 11
142	142	113 (h) The litigation related to the forfeiture of property shall be held in a single proceeding
143	143	114following the trial of the related alleged offense. The litigation of whether property of less than
144	144	115$10,000 in value shall be forfeited shall be held before only a judge.
145	145	116 Within 7 days of the seizure of property or simultaneously upon filing a related criminal
146	146	117indictment, the commonwealth shall file a forfeiture charge that shall include: (1) a description
147	147	118of the property seized; (2) the date and place of seizure of the property; (3) the name and address
148	148	119of the law enforcement agency making the seizure; (4) the specific statutory and factual grounds
149	149	120for the seizure; (5) whether the property was seized pursuant to an order of seizure, and if the
150	150	121property was seized without an order of seizure, an affidavit from a law enforcement officer
151	151	122stating the legal and factual grounds why an order of seizure was not required; and (6) the names
152	152	123of persons known to the commonwealth who may claim an interest in the property and the basis
153	153	124for each person's alleged interest.
154	154	125 The charging document shall be served upon the person from whom the property was
155	155	126seized, the person's attorney of record and all persons known or reasonably believed to claim an
156	156	127interest in the property.
157	157	128 (i) At any time following determination of forfeiture by the trier of fact, the defendant
158	158	129may petition the court to determine whether the forfeiture is unconstitutionally excessive under
159	159	130the Massachusetts or federal constitution. The defendant has the burden of establishing the
160	160	131forfeiture is grossly disproportional to the seriousness of the offense by a preponderance of the
161	161	132evidence at a hearing conducted by the court without a jury.
162	162	133 In determining whether the forfeiture of an instrumentality is unconstitutionally
163	163	134excessive, the court may consider all relevant factors, including, but not limited to: (a) the 8 of 11
164	164	135seriousness of the offense and its impact on the community, including the duration of the activity
165	165	136and the harm caused by the defendant; (b) the extent to which the defendant participated in the
166	166	137offense; (c) the extent to which the property was used in committing the offense; (d) the sentence
167	167	138imposed for committing the crime subject to forfeiture; and (e) whether the offense was
168	168	139completed or attempted.
169	169	140 In determining the value of the instrumentality subject to forfeiture, the court may
170	170	141consider all relevant factors, including, but not limited to: (a) the fair market value of the
171	171	142property; (b) the value of the property to the defendant including hardship to the defendant if the
172	172	143forfeiture is realized; and (c) the hardship from the loss of a primary residence, motor vehicle or
173	173	144other property to the defendant’s family members or others if the property is forfeited. The court
174	174	145may not consider the value of the instrumentality to the commonwealth in determining whether
175	175	146the forfeiture of an instrumentality is constitutionally excessive.
176	176	147 (j) Property encumbered by a bona fide security interest is not subject to forfeiture. A
177	177	148person claiming a security interest must establish by a preponderance of the evidence the validity
178	178	149of the interest perfected under law, or a lease or rental agreement. The prosecuting authority shall
179	179	150summarily return property to the person with a bona fide security interest.
180	180	151 If the person alleges a valid security interest but the commonwealth seeks to proceed with
181	181	152the forfeiture against the property, the commonwealth shall prove by a preponderance of the
182	182	153evidence that the person had actual knowledge of the underlying crime giving rise to the
183	183	154forfeiture.
184	184	155 (k) A conveyance used by any person as a common carrier in the transaction of business
185	185	156as a common carrier is not subject to forfeiture, unless the commonwealth proves by a 9 of 11
186	186	157preponderance of the evidence that the owner or other person in charge of the conveyance had
187	187	158actual knowledge of the underlying crime giving rise to the forfeiture.
188	188	159 A conveyance is not subject to forfeiture if the underlying crime giving rise to the
189	189	160forfeiture was committed by a person other than the owner of the conveyance while the
190	190	161conveyance was stolen or taken in violation of the law.
191	191	162 (l) The property of an innocent owner may not be forfeited. A person who has an
192	192	163ownership interest in property subject to forfeiture existing at the time the illegal conduct giving
193	193	164rise to forfeiture occurred, or who acquired an ownership interest in property subject to forfeiture
194	194	165after the commission of a crime giving rise to forfeiture, and who claims to be an innocent owner
195	195	166bears the burden of proving by clear and convincing evidence that the person has a legal right,
196	196	167title, or interest in the property seized under this section.
197	197	168 If the commonwealth seeks to proceed with the forfeiture against the property, the
198	198	169commonwealth shall prove by clear and convincing evidence that the person had actual or
199	199	170constructive knowledge of the underlying crime giving rise to the forfeiture, or, in the case of a
200	200	171person who acquired an ownership interest in property subject to forfeiture after the commission
201	201	172of a crime giving rise to forfeiture, the commonwealth shall prove by clear and convincing
202	202	173evidence that at the time the person acquired the property the person: (a) had actual or
203	203	174constructive knowledge that the property was subject to forfeiture; or (b) was not a bona fide
204	204	175purchaser without notice of any defect in title and for valuable consideration.
205	205	176 If the commonwealth fails to meet its burden of proof, the court shall find that the person
206	206	177is an innocent owner and shall order the commonwealth to relinquish all claims of title to the
207	207	178property. The defendant or convicted offender may invoke the right against self-incrimination or 10 of 11
208	208	179the marital privilege during the forfeiture-related stage of the prosecution. The trier of fact at the
209	209	180hearing may not draw an adverse inference from the invocation of the right or privilege.
210	210	181 (m) (1) At any time when unclaimed property or contraband held for evidentiary
211	211	182purposes is no longer needed for that purpose, the court may order it be delivered to the state
212	212	183treasurer within 30 days, or, in the case of contraband, be destroyed within 30 days. If the
213	213	184forfeiture is granted, the court shall order the property be delivered to the treasurer within 30
214	214	185days. All abandoned property shall be delivered to the treasurer within 30 days.
215	215	186 The treasurer shall dispose of all non-currency forfeited and abandoned property at public
216	216	187auction. The auction proceeds and forfeited currency shall first be used to pay all outstanding
217	217	188recorded liens on the forfeited property, then to comply with an order of the court to pay
218	218	189reasonable non-personnel expenses, with all remaining funds to be deposited into the general
219	219	190fund.
220	220	191 Upon motion, the court may order that a portion of the currency seized or proceeds from
221	221	192public auction be used to pay reasonable non-personnel expenses of the seizure, storage, and
222	222	193maintenance of custody of any forfeited items.
223	223	194 (2) Forfeited property received from another jurisdiction, including the federal
224	224	195government, shall be transferred to the treasurer, sold by the treasurer or designee, and deposited
225	225	196in the general fund. Proceeds from the sale of forfeited property received from another
226	226	197jurisdiction, including the federal government, must be transferred to the treasurer and deposited
227	227	198in the general fund. 11 of 11
228	228	199 If federal law prohibits compliance with this subsection, state and local law enforcement
229	229	200agencies shall be prohibited from seeking or accepting forfeited property or proceeds from the
230	230	201federal government.
231	231	202 (3) No law enforcement agency may retain forfeited or abandoned property for its own
232	232	203use or sell it directly or indirectly to any employee of the agency, to a person related to an
233	233	204employee by blood or marriage, or to another law enforcement agency.
234	234	205 (n) On an annual basis, each law enforcement agency shall report to the attorney general
235	235	206the following information about seizures and forfeitures completed by the agency under this
236	236	207section and federal forfeiture law: (1) the total number of seizures of currency; (2) the total
237	237	208number of seizures and the number of items in each class of property seized including vehicles,
238	238	209houses, and other types of property seized; (3) the market value of each class of property seized
239	239	210including currency, vehicles, houses, and other types of property seized; (4) the total number of
240	240	211occurrences of each class of crime underlying the forfeitures including controlled substances,
241	241	212driving while intoxicated, and other crimes; and (5) any additional information as directed by the
242	242	213attorney general.
243	243	214 The attorney general shall develop a uniform protocol for the annual submission of
244	244	215forfeiture data by law enforcement agencies. If a law enforcement agency fails to file a report
245	245	216within 30 days after it is due, the attorney general may compel compliance.