Virginia Senate Bill Would Curb “Policing for Profit” via Asset Forfeiture, But Federal Loophole Remains

RICHMOND, Va. (Jan. 13, 2016) – A bill filed in the Virginia Senate for the 2016 legislative session would reform the state’s asset forfeiture laws, making it more difficult for police to seize property. But a loophole in the legislation would allow law enforcement to work with the feds to skirt the more stringent state law.

Sen. J. Chapman Petersen (D-Fairfax) introduced Senate Bill 108 (SB108) on Dec. 28. Under the proposed law, the state would not be able initiate asset forfeiture proceedings until the person whose property is the subject of the action has been found guilty of the crime authorizing the forfeiture. The bill would allow forfeiture without a guilty verdict “if (i) the forfeiture is ordered by the court pursuant to a plea agreement or (ii) the owner of the property has not submitted a written demand for the return of the property within one year from the date the property was seized.”

similar bill was prefiled in the Virginia House last November.

The Institute of Justice called Virginia’s current asset forfeiture laws “some of the worst in the nation.

“In order to forfeit property in Virginia, the government need only show by a preponderance of the evidence that property is related to criminal activity. Innocent owners also bear the burden of proving that they had nothing to do with the alleged criminal activity in which their property has been implicated. Worst of all, Virginia law provides a tempting incentive to seize property as it allows law enforcement to retain 100 percent of forfeiture proceeds: Participating agencies keep 90 percent of the bounty, while the balance goes to the state’s Department of Criminal Justice Services.”

The proposed legislation does not address the “policing for profit” incentives under the current law.

FEDERAL LOOPHOLE

SB108 would represent a strong reform of Virginia’s asset forfeiture laws and go a long way toward protecting the rights of property owners, but the legislation leaves a gaping loophole that would render the reforms virtually ineffective in practice. The bill needs to include amendment language to stop state and local law enforcement from turning cases over to the federal government, thereby circumventing any restrictions placed on asset forfeiture at the state level.

This very scenario plays out frequently in states with strong asset forfeiture laws like California. Police simply avoid such restrictions by turning cases involving seized assets over to the feds. In return, state and local agencies get up to 80 percent of the proceeds from forfeited assets back through the Federal “Equitable Sharing Program.”

Late last December the U.S. Department of Justice suspended the equitable sharing program due to budget cuts. But as the Washington Post reported, the suspension won’t likely be permanent.

“In its letter, the DOJ hints that it may be able to restart payments later: ‘By deferring equitable sharing payments now, we preserve our ability to resume equitable sharing payments at a later date should the budget picture improve.’ The DOJ hopes to ‘reinstate sharing distributions as soon as practical and financially feasible,’ the letter concludes.”

Even with the program suspension in place for now, Virginia needs to close the loophole to ensure police cannot circumvent the law in the future. Legislators can do so by adding the following language:

“A law enforcement agency or prosecuting authority may not directly or indirectly transfer seized property to any federal law enforcement authority or other federal agency unless the value of the seized property exceeds $50,000, excluding the potential value of the sale of contraband.”

As the Tenth Amendment Center previously reported the federal government has inserted itself into the California’s asset forfeiture debate. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its deplorable “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

STATES PUSH BACK

States are rapidly taking notice and passing reforms to halt this abusive practice. New Mexico enacted a law this year prohibiting the confiscation of property from suspects of a crime until after they are convicted. Montana passed a significant but less comprehensive reform plan tackling asset forfeiture this year as well.

The Virginia House passed a similar measure last year, but the Senate killed the bill and referred the issue to the Virginia State Crime Commission for further study.

SB108 will be referred to the Senate Committee for Courts and Justice once the 2016 session begins on Jan. 13.