Amendment ID: S2944-6

Amendment 6

Forfeiture Reform

Mr. Tarr moves that the proposed new draft be amended by striking all after the enacting clause and inserting in place thereof the following:-

"SECTION 1. Section 47 of chapter 94C of the General Laws, as appearing in the 2020 Official Edition, 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 any provision of this chapter. In such a proceeding in which the property is claimed by a person other than the commonwealth or a subdivision thereof, the commonwealth or the subdivision 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 any 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. 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 further 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 deposited in the trust fund established in subsection (l). Forfeited property received from another jurisdiction, including the federal government, shall be transferred to the state treasurer, sold by the state treasurer or a designee and deposited in said trust fund. Proceeds from the sale of forfeited property received from another jurisdiction, including, but not limited to, the federal government, shall be transferred to the state treasurer and deposited in said trust fund.

SECTION 2. Paragraph (2) of subsection (f) of said section 47 of said chapter 94C, as so appearing, is hereby amended by striking out the last sentence.

SECTION 3. Said section 47 of said chapter 94C, as so appearing, is hereby further amended by striking out subsection (k) and inserting in place thereof the following 2 subsections:-

(k) The attorney general, each district attorney and each police department shall file an annual report with the executive office for administration and finance and the senate and house committees on ways and means, and the clerks of the house and senate detailing all assets, money and proceeds from the sale of assets seized pursuant to this section. The report shall provide itemized accounting for all assets, money and proceeds from cash, personal property, conveyances and real property, including any property disposed of by the office of seized property management. The report shall be filed not later than January 31 for the preceding calendar year and shall be a public record and posted on the general court website."