The Commission recommends that the Legislature consider raising the burden of proof necessary to seize property to, at a minimum, a preponderance of the evidence standard. Massachusetts is an outlier in only requiring the lowest evidentiary burden to effectuate a forfeiture. The Legislature could bring Massachusetts in line with the federal government and the plurality of 20 other states, including Maine, Rhode Island, Texas, and Alabama, by raising the standard to a preponderance of the evidence.

The Commission recommends that the Legislature improve the reporting requirements in c. 94C§ 47(k) to provide better information on how forfeiture proceeds are allocated. Pursuant to§ 47(k), the Attorney General, district attorneys and police departments for whom there is a law enforcement trust shall file a report with the Treasurer detailing assets and expenditures.

However, some of the data contained in the Treasurer’s report is not clear as to how the property is actually allocated. The Legislature should consider requiring more detailed accounting on categories such as “other law enforcement purposes” and “cost of forfeiture collection” for example. Detailed accounting without catch-all provisions like “other” should provide more accurate data for consideration.

Furthermore, the Legislature should consider broader and more robust requirements for reporting by law enforcement agencies. Current reporting requirements do not capture all funds seized unless they are turned over to a trust fund administered by the Treasurer. Furthermore, spending of those funds allocated by the district attorneys to police departments is not tracked.

Documenting all funds is essential for the fair administration of justice.

The Commission recommends that the Legislature consider requiring a stay of a civil forfeiture action during the pendency of the criminal matter to which the property is connected. Anecdotally, the Commission heard from the DA representative on the Commission that most DAs stay the civil forfeiture case during the pendency of the criminal case.

The Commission is encouraged by the language of the recently promulgated Rule 74 of the Rules of the Superior Court (2021). Rule 74 institutes a rigorous notification scheme to ensure all interested parties to the property are properly notified of a seizure and provided a timely opportunity to declare their interest and request a stay.

Furthermore, the tight timeline for an initial hearing and opportunity to request a stay pending the criminal matter provide heightened protections for the owners. The Legislature should consider these Superior Court protections as a basis for codification in statute across all courts.

The Commission recommends that the Legislature consider imposing a minimum threshold limit to the value of property eligible for seizure and forfeiture. Setting such a minimum threshold would keep relatively low-value cash amounts or items out of forfeiture proceedings to minimize the impact on further court proceedings. Furthermore, such a threshold would be in line with recent Massachusetts legislation related to criminal justice reform where the Legislature eliminated certain fines and fees and raised the felony threshold for theft crimes.

The Commission recommends that the Legislature consider providing public counsel for the asset forfeiture action if the criminal defendant qualifies for and is already represented by public counsel. Providing access to public counsel for the related civil forfeiture case would be one way to address the high default rates seen in those proceedings. However, the Legislature should anticipate that providing public counsel in these circumstances would require increased funding for CPCS.

The Commission recommends that the Legislature consider re-allocating seized funds from law enforcement and prosecutors to either the General Fund or specific programs to combat substance abuse or assist victims of crime. By relieving law enforcement of their reliance on seized funds, the Legislature would need to replace those expenditures through increased budget allocations. However, the policy of divesting the powers to seize property from those who financially benefit from the forfeiture is a public policy the Legislature should consider.