by Rob Poggenklass, Tony Dunn Legal Fellow
Under Virginia law, law enforcement can pull you over, take your money, and then make you prove that you didn’t get it through ill means. They don’t even need to charge you with a crime. It’s unbelievable. Fortunately, there are two bills would go a long way to reforming our civil asset forfeiture laws. SB 684 and HB 1287 would require a criminal conviction before an individual’s property can be forfeited to the Commonwealth. Here’s why these bills are so important:
Asset forfeiture is ripe for abuse. Under current law, state and local law enforcement agencies can seize assets that have a “substantial connection” to a drug offense, regardless of whether a person is convicted of or even charged with a crime. In one case reported by the Washington Post, the Virginia State Police stopped two men and took thousands of dollars meant for building churches without any evidence that the men were involved in criminal activity. Only after months of legal battles did the government return the cash. This incident would not have been possible if all asset forfeitures required criminal convictions.
Asset forfeiture creates the wrong incentive for law enforcement. If the Commonwealth is able to show that assets seized during an investigation are probably related to a drug offense, it is up to the property owner to prove that he or she had the money or property for a lawful purpose. If not, the law enforcement agency that conducted the investigation may keep up to 90 percent of the assets forfeited. This gives law enforcement agencies a financial incentive to seize as much money and property as possible, even if the Commonwealth will be unable to prove beyond a reasonable doubt that a crime was committed. Policing should be based on public safety, not supplementing a department’s budget.
Asset forfeiture is a byproduct of the failed War on Drugs. Law enforcement agencies justify the use of civil asset forfeiture as a necessary tool in the War on Drugs. But in 40 years, the War on Drugs has not reduced the supply or use of illegal drugs and has resulted in the mass incarceration of large numbers of minorities for nonviolent offenses. Police do not seize assets from all equally. Instead, they target those persons they associate with criminal behavior and drug trafficking. This results in the racial profiling of black and Latino drivers on the highways, who are stopped and stripped of their money based on minimal or non-existent evidence. It’s time to recognize that the War on Drugs has failed and that programs, like asset forfeiture, lead departments to double down on this failed approach.
Criminal cases have a higher burden of proof than civil forfeiture actions. In a civil forfeiture action, the Commonwealth need only show that the money or property in question was probably related to a drug offense. Then it’s up to the property owner to prove that the assets were obtained lawfully. But in a criminal case, the Commonwealth must prove beyond a reasonable doubt that a person committed a crime. And if the criminal case is tried by a jury, all 12 jurors must agree on the person’s guilt. By requiring a criminal conviction, the General Assembly will make it more difficult for law enforcement agencies to take the money and property of Virginia property owners.
SB 684 and HB 1287 would protect the property of innocent Virginians and help end the abusive asset forfeiture scheme.
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