This proposed law would create a state Drug Treatment Trust Fund, to be used, subject to appropriation by the state Legislature, solely for the treatment of drug-dependent persons. The Fund would include fines paid under the state’s criminal drug laws; money forfeited because of its use in connection with drug crimes; and the proceeds from selling property forfeited because of its use in connection with drug crimes.

The Fund would be administered by the state’s Director of Drug Rehabilitation. Money in the Fund would be spent to increase, rather than replace, existing government funding for drug treatment programs. Those programs would be expanded to apply to persons who are at risk of becoming drug-dependent and to include drug abuse prevention through education.

The proposed law would expand eligibility for the program under which a person charged with a drug crime may request a court finding that he is drug-dependent and would benefit from court-monitored treatment. If the court so finds, and the person then successfully completes a treatment program, the criminal charges are dismissed. The proposed law would allow requests to enter this program by persons who are at risk of becoming drug dependent and by persons charged with a first or second offense of manufacturing, distributing, or dispensing a controlled substance, or possessing a controlled substance with the intent to do any of those things, or trafficking 14 to 28 grams of cocaine.

The proposed law would change the state law governing forfeiture of money and property used in connection with drug crimes. Land and buildings could not be forfeited if used in a manner that was merely incidental to a drug crime. The state would have to prove by clear and convincing evidence that money or property was subject to forfeiture, and the property owner could then try to prove by a preponderance of the evidence that the money or property was legally exempt from forfeiture. All forfeited money, instead of being divided between the prosecuting agency and responsible police department and used for law enforcement purposes, would be put in the Fund. All forfeited property, instead of being so divided and used, would be sold and the proceeds put in the Fund.

Records of all state and local forfeiture activities would have to be kept and made public unless harm to law enforcement efforts would result. The state Inspector General could audit and investigate these activities. Any official who concealed or diverted any forfeited money or property could be punished by a fine of up to $1000, imprisonment for up to one year, or both.

The proposed law states that if any of its parts were declared invalid, the rest of the law would remain in effect.

INITIATIVE PETITION (As amended)

An Act to Expand the Scope of the Commonwealth’s Drug Treatment Program and Provide Funding Through Fines for Drug Violations and the Forfeiture of Assets Used in Connection with Drug Offenses.

Be it enacted by the People, and by their authority, as follows:

SECTION 1.

(a) It is hereby declared the policy of the Commonwealth that individuals who abuse controlled substances, or who are at significant risk of becoming such abusers, should have recourse to meaningful and effective treatment and that the funding for such treatment should, to the maximum extent feasible, be derived from those who violate the laws of the Commonwealth relative to controlled substances. Accordingly, it is the purpose of this act to promote the public health and welfare by assuring that drug treatment programs be made available to those in need and that fines in drug cases, the proceeds derived from the forfeiture of assets that are clearly shown to have been used in the commission of drug violations, as well as certain other revenues, be paid into a fund dedicated to such drug treatment programs, subject to appropriation.

(b) This act is declared to be remedial. In order to more fully accomplish its purpose, it is to be liberally construed and administered. The provisions of this act shall be deemed severable, and if any part of this act shall be adjudged unconstitutional or invalid, such judgment shall not affect other valid parts thereof.

SECTION 2.

Drug dependent person, a person who is unable to function effectively and whose inability to do so causes, or results from, the use of a drug other than alcohol, tobacco or lawful beverages containing caffeine, and other than from a medically prescribed drug when such drug is medically indicated and the intake is proportioned to the medical need, or a person who is at risk of becoming drug dependent, as defined herein.

SECTION 5.

Said chapter 111E of the General Laws is hereby further amended by inserting in section 2, after line 8, as appearing in the 1998 Official Edition, the following:

Subject to appropriation, the director, with the approval of the commissioner, may expend amounts contained in the Fund solely for treatment. Expenditures from the Fund for such purposes shall complement and not replace existing local, state, or federal drug treatment-related funding.

The director may request, and shall receive, from any department, division, board, bureau, commission, or agency of the state or of any political subdivision thereof such cooperation and data as will enable him to properly carry out his activities hereunder.

SECTION 6.

Said chapter 111E of the General Laws is hereby further amended by inserting after the word plan in the first sentence of section 4 the following:

--to prevent drug abuse through the education of persons who are at risk of becoming drug dependent and

SECTION 7.

The plan shall include a detailed estimate of the cost of its implementation, an estimate of the monies to be accumulated in the Fund, and an estimate of the extent to which other funds, property or services may be available from the commonwealth or any of its political subdivisions, the federal government or any private source.

SECTION 8.

Said chapter 111E of the General Laws is hereby further amended by striking from section 10 the first paragraph and inserting in place thereof the following:--

Any defendant who is charged with a drug offense shall, upon being brought before the court on such charge, be informed that he is entitled to request an examination to determine whether or not he is a drug dependent person who would benefit by treatment, and that if he chooses to exercise such right he must do so in writing no less than five days before trial.

SECTION 9.

The provisions of this section shall not apply to a person charged with violating sections thirty-two to thirty-two G, inclusive, of chapter ninety-four C of the General Laws; provided, however, notwithstanding the provisions of section 32H of said chapter 94C or any other law to the contrary, the provisions of this section shall apply to a person charged with a first or second offense of paragraph (a) of section 32 of chapter 94C or a first offense of paragraph (b) of said section 32, a first or second offense of paragraph (a) of section 32A of chapter 94C or a first offense of paragraph (b) of said section 32A, a first or second offense of paragraph (c) of section 32A of chapter 94C or a first offense of paragraph (d) of said section 32A, a first or second offense of paragraph (a) of section 32B of chapter 94C or a first offense of paragraph (b) of said section 32B, a first or second offense of paragraph (a) of section 32C of chapter 94C or a first offense of paragraph (b) of said section 32C, a first or second offense of paragraph (a) of section 32D of chapter 94C or a first offense of paragraph (b) of said section 32C, a first or second offense of paragraph (a) of section 32D of chapter 94C or a first offense of paragraph (b) of said section 32D, and a first or second offense of paragraph (1) or subsection (b) of section 32E of chapter 94C.

SECTION 10.

Chapter 94C of the General Laws, as appearing in the 1998 Official Edition, is hereby amended by striking out paragraph (7) of subsection (a) of section 47 and inserting in place thereof the following:--

(7) All real property, including any right, title, and interest in the whole of any lot or tract of land and any appurtenances or improvements thereto, which is used in any manner that is not merely incidental to the commission or the facilitation of the commission of a violation of any provision of section thirty-two, thirty-two A, thirty-two B, thirty-two C, thirty-twoD, thirty-two E, thirty-two F, thirty-two G, thirty-two I, thirty-two J or forty.

SECTION 11.

(1) In all such suits where the property is claimed by any person, other than the commonwealth, the commonwealth shall have the burden of proving to the court by clear and convincing evidence that the property is forfeitable pursuant to paragraph (3), (5), or (7) of said subsection (a). The owner of said conveyance or real property, or other person claiming thereunder shall have the burden of proof by a preponderance of the evidence as to any applicable 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 said conveyance, real property, moneys 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 two weeks after notice, hold a hearing on the petition. Upon the motion of the owner of said conveyance, real property, moneys or other things of value, the court may 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.

(2) In all such suits where a final order results in a forfeiture, said final order shall provide for disposition of said conveyance, real property, or any other thing of value by the commonwealth or any subdivision thereof in any manner not prohibited by law which is reasonably calculated to yield the greatest cash proceeds, including sale at public auction or by competitive bidding.

(3) All conveyances, real property, moneys or any other things of value received by the attorney general, a district attorney, any state or local police department or any other state or local law enforcement agency under the laws of the United States authorizing the transfer of all or a portion of property forfeited under the drug enforcement laws of the United States shall be received on account of the Massachusetts Drug Treatment Trust Fund established by section 35U of chapter ten of the General Laws, and for no other purpose or account. Said conveyances, real property or any other things or value received by local police departments or other local law enforcement agencies, the attorney general, a district attorney, state police and other state law enforcement agencies, the attorney general, a district attorney, state police and other state law enforcement agencies shall be referred to and disposed of by the office of seized property management within0 the division of capital asset management and maintenance as further provided in this section. To the extent necessary for state or local law enforcement agencies to receive an equitable share of all forms of property forfeited under the drug enforcement laws of the United States and consistent with state drug law enforcement policies and objectives, the attorney general, a district attorney, state or local police departments and any other state or local law enforcement agencies are encouraged and directed to seek equitable shares of all such federally forfeited property and to cooperate with federal law enforcement agencies in all cases in which, in the opinion of the responsible state or local official, such cooperation is in the interests of the commonwealth.

(4) All moneys and the proceeds of any sale of property pursuant to a final order under paragraph (2) of this subsection and all moneys and the proceeds of any such sale of transferred property under paragraph (3) of this subsection shall be remitted to the state treasurer for the benefit of said Massachusetts Drug Treatment Trust Fund.

SECTION 12.

Said section 47 of chapter 94C of the General Laws is further amended, by striking out subsection (e) and inserting in place thereof the following:

(e) Persons making final disposition or destruction of any property pursuant to court order under this chapter shall report, under oath, to the court the exact circumstances of said disposition or destruction. Any state or municipal officer, department, or agency having custody of any property subject to forfeiture under this chapter or having disposed of said property shall keep and maintain full and complete records showing from whom it received said property, under what authority it held or received or disposed of said property, to whom it delivered said property, the date and manner of destruction or disposition of said property. The inspector general shall promulgate regulations pursuant to chapter 30A prescribing the form, content, maintenance and availability of said records. All such records shall be open to the public except in specific cases where disclosure will prejudice the possibility of effective law enforcement. Said inspector general may supervise, coordinate and conduct audits and investigations, when necessary, relating to the administration of this section by any state or municipal officer, department, or agency having custody or having disposed of any property subject to forfeiture under this chapter.

SECTION 13.

Said section 47 of chapter 94C of the General Laws is further amended, by striking out paragraph two of subsection (f) and inserting in place thereof the following:--

(2) There shall be created within the division of capital asset management and maintenance an office of seized property management to which the attorney general, a district attorney, state police or other state or local law enforcement agencies shall refer any conveyances, real property, and any furnishings, equipment and related personal property located therein, or any other things of value for which seizure or forfeiture is sought. The office of seized property management shall be authorized to preserve and manage such property in a reasonable fashion and to enter into contracts to preserve and manage such property. Said office is further authorized to dispose of such property upon a judgment ordering forfeiture issued pursuant to the provisions of subsection (d) and to dispose of conveyances, real property, or any other things of value received by the attorney general, a district attorney, state police and other state or local law enforcement agencies under the laws of the United States and referred to said office pursuant to paragraph (3) of subsection (d). All such dispositions by said office shall be made in any manner not prohibited by law which is reasonably calculated to yield the greatest cash proceeds, including sale at public auction or by competitive bidding. Subject to appropriation, the proceeds of any such disposition may be used to pay the reasonable expenses related to the storage, maintenance, management, and disposition of the property and the balance thereof shall be remitted to the state treasurer for the benefit of the Massachusetts Drug Treatment Trust Fund established pursuant to section 35U of chapter ten. Subject to appropriation, said office may receive funding from said Massachusetts Drug Treatment Trust Fund through a portion of the proceeds of each sale of such managed property.

SECTION 14.

Said section 47 of chapter 94C of the General Laws is further amended, by adding after subsection (j) the following:--

(k) Notwithstanding any special or general law to the contrary, whoever, acting under color of official title or position, takes any action to conceal, withhold, retain, divert or otherwise prevent any moneys, conveyances, real property, or any other things of value forfeited under this section or forfeited and transferred to a state or local agency under the laws of the United States, from being disposed of in accordance with the provisions of this section shall be punished by a fine of not more than one thousand dollars or by imprisonment in a jail or house of correction for not more than one year, or both.

SECTION 15.

Pursuant to Article 48 of the articles of amendment of the Constitution of the Commonwealth of Massachusetts, as amended by Article 81 of said articles of amendment, the undersigned persons, being a majority of the first ten signers, hereby file this amended measure for submission to the people.