Research & Commentary: Virginia Should Pursue Civil Asset Forfeiture Reform

Published October 13, 2017

According to Virginia Watchdog, the civil asset forfeiture debate may soon reignite in Virginia. In 2015, the Virginia House of Delegates approved by a large margin a bill that would have required a criminal conviction before property could be forfeited under state law. Unfortunately, the Virginia Senate killed the bill, choosing instead to shift the proposal to the Virginia State Crime Commission to conduct a study.

In recent years, states have taken many steps toward limiting the ability of law enforcement agencies to seize property from criminal suspects without conclusive evidence a crime was committed or a prosecution, a process known as civil asset forfeiture. Civil asset forfeiture, also known as civil judicial forfeiture, is a controversial legal process through which law enforcement agencies take personal assets from individuals or groups merely suspected of a crime or illegal activity.

Civil asset forfeiture can also be completed without bringing criminal charges against those whose assets have been seized. The standard of proof permitting seizure differs from state to state. Since 2014, 24 states have comprehensively reformed their forfeiture laws, with 14 states now requiring a criminal conviction before assets are seized. Three states have even banned the practice altogether.

In a 2016 study of civil asset forfeiture by the Institute for Justice (IJ), IJ found Virginia has some of the worst civil forfeiture laws in the nation, ranking near the bottom of all states with a grade of “D-.” Although the state moved in the right direction in 2016 – when the legislature passed a bill increasing the evidentiary burden in asset-forfeiture cases from a preponderance of the evidence that property is related to criminal activity to clear and convincing evidence – the standard still falls short of the standard required for a criminal conviction (beyond a reasonable doubt). In addition to not requiring guilt beyond a reasonable doubt before a confiscation of property is allowed, Virginia also places the burden of proof on property owners, who could be completely innocent.

There are other significant problems with Virginia’s civil asset forfeiture laws, too. While most states divide the proceeds from seized property between law enforcement and the government, giving law enforcement a smaller share to mitigate the incentive to seize, Virginia permits law enforcement to retain 100 percent of forfeiture proceeds. (Agencies keep 90 percent; the remainder goes to the state’s Department of Criminal Justice Services.)

Proponents of forfeiture argue it allows law enforcement agencies to use seized assets toward their enforcement efforts, transforming property illicitly gained by criminals into resources that can be used for public benefit. Critics of the process note it gives law enforcement agencies economic incentives to seize property, corrupting law enforcement agencies and penalizing innocent property owners. Many states impose no penalties on law enforcement for wrongful seizures, and when property is deemed to have been taken illegally, taxpayers usually have to pay for the returned assets.

Lee McGrath, senior legislative counsel at IJ, argues limiting the incentive to seize is important because the high cost of contesting a seizure makes reclaiming property rare. “Ninety-five percent of the time people just walk away from their property and don’t litigate the forfeiture claim,” McGrath told Watchdog. According to IJ, the number of civil asset forfeitures by state and local agencies in Virginia has gone from nine in the year 2000 to nearly 1,000 in 2014.

McGrath recommends Virginia lawmakers follow the lead of Colorado and require the state to set up a “publicly searchable database to compile information on all police property seizures, the type of asset and its value, forfeitures won by prosecutors, associated criminal charges and how law enforcement used any forfeiture proceeds that were awarded.”

Virginia has taken a few small steps toward limiting the incentive for police to seize property for profit, but a great deal more is needed. Requiring a criminal conviction before seizure would be a very good first step.

The following documents provide additional information about civil asset forfeiture.

Reform Virginia’s Civil Asset Forfeiture Laws to Remove the Profit Incentive and Curtail the Abuse of Power
Rob Poggenklass writes in the University of Richmond Law Review about Virginia’s civil asset forfeiture laws and how the process has “devolved from a purely utilitarian tool in the war on drugs to a revenue cow for cash-strapped local law enforcement agencies.”

Policing for Profit: The Abuse of Civil Asset Forfeiture 2nd Edition
Dick Carpenter, Lisa Knepper, Angela Erickson and Jennifer McDonald argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Civil forfeiture threatens the constitutional rights of all Americans. Using civil forfeiture, the government can take your home, business, cash, car or other property on the mere suspicion that it is somehow connected to criminal activity—and without ever convicting or even charging you with a crime. Most people unfamiliar with this process would find it hard to believe that such a power exists in a country that is supposed to recognize and hold dear rights to private property and due process of law,” they write.

Uncivil Asset Forfeiture: An Analysis of Civil Asset Forfeiture and Virginia H.B. 48
Brent Ashley writes in the University of Richmond Law Review about civil asset forfeiture, the current federal and Virginia laws governing asset forfeiture, and summarizes reforms under consideration in the state.

Policing for Profit: Federal Equitable Sharing
In this report by The Institute for Justice (IJ), IJ examines federal equitable sharing laws and the effect they have on property seizures in the states.  

Civil Asset Forfeiture: 7 Things You Should Know
This Heritage Foundation Factsheet outlines several important things people should know about civil asset forfeiture.

Playing Both ‘Cops and Robbers’ on Asset Forfeiture
Jesse Hathaway, managing editor of Budget & Tax News, examines in this article a new digital system that allows highway patrolmen to use civil asset forfeiture laws to seize individuals’ assets stored in bank accounts or on prepaid debit cards at the press of a button. “Civil asset forfeiture creates too many perverse economic incentives. However well-intentioned the idea may be, the practice of civil asset forfeiture has been corrupted and now infringes on Americans’ right to be free from harassment by money-hungry agents of the government,” wrote Hathaway.

The Civil Asset Forfeiture Racket
A. Barton Hinkle of the Reason Foundation examines the growing problems created by civil asset forfeiture and argues for repeal of such laws.

Policing for Profit: The Abuse of Civil Asset Forfeiture
Marian Williams, Jefferson Holcomb, Tomislav Kovandzic, and Scott Bullock argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent,” they write.

Civil Asset Forfeiture Reform Goes Mainstream
Jordan Richardson of The Heritage Foundation discusses how the growing number of civil asset forfeiture abuses have drawn the attention of news media and suggests the increased attention may lead to real reform.

Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.

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