FILED ON: 6/30/2022

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2988

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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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:
 

SECTION 1. Section 24W of chapter 90 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by adding the following subsection:-

(g) The attorney general, each district attorney and each police department shall file an annual report with the executive office for administration and finance, the senate and house committees on ways and means and the joint committee on the judiciary detailing all assets, money and proceeds from the sale of assets seized pursuant to this section. The report shall provide an itemized accounting for each seizure and forfeiture as required by section 47 of chapter 94C. The report shall be filed not later than January 31 for the preceding calendar year and shall be a public record.

SECTION 2. Section 47 of chapter 94C of the General Laws, as so appearing, is hereby amended by striking out subsection (d) and inserting in place thereof the following subsection:-

(d) A district attorney or the attorney general may petition the superior court in the name of the commonwealth in the nature of a proceeding in rem to order the forfeiture of a conveyance, real property, money or other things of value exceeding $250 subject to forfeiture under subparagraphs (3), (5) and (7) of subsection (a). The petition shall be filed in the court having jurisdiction over the conveyance, real property, money or other things of value or having final jurisdiction over any related criminal proceeding brought under this chapter. In any such proceeding in which the property is claimed by a person other than the commonwealth or a subdivision thereof, the commonwealth shall have the burden of proving to the court by a preponderance of the evidence that the property is forfeitable. The owner of the conveyance or real property, or other person claiming thereunder, shall have the burden of proof as to all exceptions set forth in subsections (c) and (i).

The court shall order the commonwealth to give notice by certified or registered mail to the owner of the conveyance, real property, money or other things of value and to such other persons as appear to have an interest therein and the court shall promptly, but not less than 2 weeks after notice, hold a hearing on the petition. A criminal defendant represented by public counsel in a criminal trial related to the violation of this chapter shall be entitled to continued public counsel representation at the hearing on the petition to order a forfeiture under this section. An owner of the conveyance, real property, money or other things of value who is not a criminal defendant shall be entitled to public counsel if the owner satisfies the requirements for indigency under section 2 of chapter 211D.  Upon the motion of the owner of the conveyance, real property, money or other things of value, the court shall continue the hearing on the petition pending the outcome of any criminal trial related to the violation of this chapter. At such hearing, the court shall hear evidence and make conclusions of law and shall thereupon issue a final order from which the parties shall have a right of appeal. In any such proceeding in which a final order results in a forfeiture, the final order shall provide for disposition of the conveyance, real property, money or any other things of value by the commonwealth or any subdivision thereof in any manner not prohibited by law, including sale at public auction or a competitive bidding process. The proceeds of any such sale may be used to pay the reasonable expenses of storage, maintenance of custody, advertising and notice and the balance thereof shall be distributed as provided in this section.

The final order of the court shall provide that forfeited money and the proceeds of any sale under this subsection shall be distributed equally between the prosecuting district attorney or attorney general and the city, town or state police department involved in the seizure. If more than 1 police department was substantially involved in the seizure, the court having jurisdiction over the forfeiture proceeding shall distribute the 50 per cent equitably among these departments.

There shall be established within the office of the state treasurer separate special law enforcement trust funds for each district attorney and for the attorney general. All forfeited money and the proceeds of sales received by a prosecuting district attorney or the attorney general shall be deposited in the respective trust fund and expended without further appropriation to: (i) support jail diversion programs; (ii) train prosecutors and law enforcement; (iii) support violence prevention programs; (iv) support substance use disorder prevention, education and treatment programs; (v) defray the costs of protracted investigations; (vi) provide additional technical equipment or expertise; (vii) provide matching funds to obtain federal grants; and  (viii) use for other law enforcement, diversion or crime prevention purposes. Any program seeking to receive funds from a special law enforcement trust fund shall file an annual audit report with the district attorney or the attorney general who controls the fund. The audit report shall include, but not be limited to, a listing of the assets, liabilities, itemized expenditures and board of directors of the program. Annually, not later than January 31, each district attorney and the attorney general shall file a report with the joint committee on the judiciary and the senate and house committees on ways and means on the use of the money in the trust fund.

All such money and proceeds received by a police department shall be deposited in a special law enforcement trust fund and shall be expended without further appropriation to: (i) support jail diversion programs; (ii) train law enforcement; (iii) support violence prevention programs; (iv) support substance use disorder prevention, education and treatment programs; (v) defray the costs of protracted investigations; (vi) provide additional technical equipment or expertise; (vii) provide matching funds to obtain federal grants; or (viii) use for other law enforcement, diversion or crime prevention purposes as the chief of police of the city or town or the colonel of state police deems appropriate. Annually, not later than January 31, a police department that received such money and proceeds in the previous calendar year shall file a report with the joint committee on the judiciary and the senate and house committees on ways and means detailing the use of the money disbursed from the fund. Such funds shall not be considered a source of revenue to meet the operating needs of such department.

SECTION 3. Said section 47 of said chapter 94C, as so appearing, is hereby further amended by adding the following 2 subsections:-

(l) The executive office for administration and finance shall establish and maintain a case tracking system and searchable public website that shall include the following information about any property seized or forfeited under state law: (i) the name of the law enforcement agency that seized the property; (ii) the date of the seizure; (iii) the type and a description of the property seized, including the make, model and year of any motor vehicle; (iv) the location of the seizure; (v) the estimated value of the property seized; (vi) whether the property seized was transferred to federal government; (vii) the crime charged, if any, related to the property that was seized; (viii) the outcome of any charged crime under clause (vii); (ix) the criminal case number, if charged; (x) the forfeiture case number; (xi) the type of forfeiture proceeding; (xii) whether a property owner who files a claim or counterclaim, if applicable, was suspected of committing a crime, was an owner who was not suspected of committing a crime, was a lienholder or other party or whether there was no such filing by any party; (xiii) whether there was a forfeiture settlement or consent agreement; (xiv) the date of the forfeiture order; (xv) whether the property was returned to the owner, partially returned to the owner, sold, destroyed or retained by a law enforcement agency or is pending disposition; and (xvi) the total value of the property forfeited, including currency and proceeds from the sale of property, excluding the value of contraband. Nothing in this subsection shall require the publication of information in violation of any law or regulation relating to criminal offender record information, personally identifiable information, or any other applicable privacy law or the publication of information that would compromise the identity or location of a confidential informant. If an agency has made no seizures or forfeitures during the previous year, a null report shall be filed by the agency specifying that it did not engage in seizures or forfeitures during the reporting period. The executive office may adopt rules necessary to implement this subsection.

(m) Annually, not later than January 31, the committee on public counsel services, in collaboration with the trial court of the commonwealth, shall submit a report to the senate and house committees on ways and means and the joint committee on the judiciary on the provision of public counsel representation under this section including, but not limited to, the: (i) total number of cases involving public counsel representation under this section; (ii) number of such cases where the property owner is a criminal defendant represented by public counsel in a related criminal trial; and (iii) number of such cases where the property owner is not a criminal defendant.

SECTION 4. Section 56 of chapter 265 of the General Laws, as so appearing, is hereby amended by adding the following subsection:-

(k) The attorney general, each district attorney and each police department shall file an annual report with the executive office for administration and finance, the senate and house committees on ways and means and the joint committee on the judiciary detailing all assets, money and proceeds from the sale of assets seized pursuant to this section. The report shall provide an itemized accounting for each seizure and forfeiture as required by section 47 of chapter 94C. The report shall be filed not later than January 31 for the preceding calendar year and shall be a public record.