Civil Asset Forfeiture

Summary

This reform proposal seeks to bring accountability and transparency to Massachusetts’ civil asset reform law while maintaining law enforcement’s rights to seize property and money obtained or used illegally. Read an article about the bill.

Supported by Staff

MassLandlords staff drafted or participated materially in the creation of bill text below. Members will be polled at the next update of the policy priorities survey.

Bill Text May Change

The legislative process involves many changes to most bills. Our goal with bill explainers like this is to communicate core concepts assuming final wording is beyond our control. If you feel we missed or misunderstood a core concept about this bill, please contribute to this explainer by emailing hello@masslandlords.net or by using the support widget on this page. Pointing out typos or poor drafting is appreciated on green bills (we wrote or support).

Legislative History

The text below passed the Senate by a vote of 31 to 9 in the 192^nd session (summer 2022). The bill was 192 S2988.

Forfeiture FAQ

Does this bill hurt our ability to police?

No, this bill does not impede law enforcement, nor does it defund the police. Police can still seize assets if there is a preponderance of the evidence. The standard in this bill is higher than presently, which is "probable cause." This ensures that assets are not taken from innocent people.

If a criminal is convicted in a court of law, their assets may still be forfeit under criminal asset forfeiture law.

Does this bill let criminals keep their property?

No, in Massachusetts property can be seized from innocent people by the police if the police suspect the property will be used for drugs. If there are actually illegal drugs present, then the police can charge and arrest. This bill fixes situations where there is no charge and no arrest because the owner is not a criminal.

How does this impact landlords

A 2019 study by the Massachusetts Trial Court found that the most common asset forfeited was cash. This is our rent money! We have had members forced to sell. The most famous case is that of the Tewksbury motel owner.

Full Text of the Forfeiture Reform Bill

To be posted.

Explanation of the Forfeiture Reform Bill

An Act Relative to Forfeiture Reform 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.	The existing civil asset forfeiture law will be changed by adding a subsection (g), as defined below.
(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.	This section requires the agents and agencies who seize personal assets to prepare an annual report detailing those assets and/or sales of those assets, for review by legislators and government administrators. (This is a new requirement, not part of current law.)
The report shall provide an itemized accounting for each seizure and forfeiture as required by section 47 of chapter 94C.	Every item seized as part of civil asset forfeiture shall be itemized, as required by MGL Chapter 94C s. 47 (applying to the seizure of controlled substances and any personal assets related to that seizure.)
The report shall be filed not later than January 31 for the preceding calendar year and shall be a public record.	The annual report will be made public, with a filing deadline of January 31 following the year to which it applies.
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.	This law, the Forfeiture of Property, shall be changed by replacing designated subsections with the subsections defined below.
(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).	This change to the existing law disallows district attorneys and attorney generals from pursuing civil asset forfeiture cases on property worth less than $250.
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.	A continuation of existing law stating that petitions to seize personal property must be filed in the court with jurisdiction over that property, and not a court outside that jurisdiction. Or else the forfeiture must be brought in the criminal court, if any criminal case is pending in parallel.
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.	Changes the threshold for seizing property without an arrest from the less stringent “probable cause” to a “preponderance of the evidence”. This change shifts the burden of proof from the responsibility of the owner of the property to the seizing agency or law enforcement representative.
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).	Claimants of property seized in relation to suspected criminal activity, as described in sections (c) and (i), must prove eligibility for an exception to forfeiture.
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.	Notice must be given to owners or claimants of seized property. Following notice, a hearing must be held on the petition to seize property.
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.	Public counsel representation for criminal defendants will be extended to any parallel civil hearing to seize their property. Often civil asset forfeiture has been raised in parallel to criminal complaints, not because the assets were really involved in any crime but rather because the crime is unlikely to be proved and the prosecution wants the assets nevertheless.
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.	Public counsel representation will be made available to non-criminal owners or claimants of seized property who are indigent.
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.	Hearings on petitions for property seizure will be delayed until any criminal proceedings are decided.
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.	The court will make final judgments based on evidence presented in hearings.
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.	When forfeiture is found to be justified by the court, seized property may be disposed of in a legal manner, including by selling the property.
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.	Proceeds from the sale of seized property may cover storage, ownership, advertising and other costs. Any remaining proceeds may be distributed as described below.
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.	Forfeited money and proceeds from sale of seized property is to be distributed equally: half to the prosecuting DA or attorney general, and half to the police department that seized the property.
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.	If more than one police department took part in the seizure, half the money or proceeds will be distributed equally among the participating 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.	Meanwhile, trust funds shall be established for each district attorney and 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;	Any forfeited money or proceeds from sale of seized property will be deposited into these trust funds, for express purposes defined in (i) through (viii):
(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.	An annual audit report must be completed by any program seeking funds from these trust funds.
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.	Each DA and the attorney general will submit an annual report on the use of money in these trust funds to the state legislature.
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;	Police departments that seize property shall also create special trust funds from the deposit of forfeited money and proceeds from sale of seized property, to be used for express purposes defined in (i) through (viii):
(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.	Any police department that received money as forfeited or from sales of seized property will submit an annual report on the use of money in the trust funds to the state legislature.
Such funds shall not be considered a source of revenue to meet the operating needs of such department.	Forfeited money or proceeds from sales of seized property will not be used for police department operating costs.
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;	Information regarding seized property will be tracked and made public, including details defined in (i) through (xvi).
(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.	Publication of this information will not violate any privacy laws.
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.	In the event no property seizure took place in a given year, agencies or police departments will file a report stating such.
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;	The committee on public counsel services will submit an annual report to the state legislature, including details defined in (i) through (iii).
(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.	All agencies and departments involved in property forfeiture will submit an annual report to the state legislature and administration with details regarding seized property.
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.