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Virginia Lawmakers Attempting To Reform State's Asset Forfeiture Debacle By Pushing For A Conviction Requirement

from the but-more-work-is-still-needed dept

Tue, Feb 24th 2015 8:54pm — Tim Cushing

The Institute for Justice's 2010 report "Policing for Profit" listed Virginia as one of the worst five states in the nation in terms of forfeiture abuse. Pushing the state towards its Bottom Five finish was this perverted incentive: 100% of the proceeds from civil asset forfeiture were retained by the law enforcement agency performing the seizure. And, like a majority of states, Virginia also perverted the justice system, deeming the property "guilty" and transferring the burden of proof to those whose assets were seized.

Now that civil asset forfeiture has gone mainstream, receiving coverage from major press outlets, legislators are having a harder time ignoring opponents of these "legalized theft" programs. In response, Virginia's lawmakers are trying to drag the state out of its forfeiture morass.

Last week the Virginia House of Delegates overwhelmingly approved a bill that would effectively raise the burden of proof for civil forfeitures by forcing the government to return seized property unless it can obtain a criminal conviction. The bill, introduced by Del. Mark Cole (R-Spotsylvania) and Del. Scott Surovell (D-Mount Vernon), passed by a vote of 92 to 6 and is now being considered by the state Senate.

This fixes one major issue with many civil asset forfeiture programs. Virginia's laws only demanded a "preponderance of the evidence," something that sounds like a lot but in reality is far lower than establishing guilt "beyond a reasonable doubt." If the latter edges towards a theoretical 75% assurance of guilt, the percentage for asset forfeiture approaches a coin flip: 51%. Now, there needs to be a conviction before the agency can keep the seized property.

But there are also problems left unaddressed by this proposal.

That conviction does not have to involve the owner, however. Someone who uses an asset (a car or a home, say) in connection with a crime could be convicted, whereupon the asset would be forfeited, even if it belonged to someone else. Once a "substantial connection" between an asset and a crime is established, Virginia puts the burden on innocent owners to prove their innocence, and this bill does not change that.

The law also doesn't change the allocation of seized funds. 100% is still awarded to the agency performing the seizure with 10% of that allocated for "promoting law enforcement activities." The law also leaves the DOJ loophole open, allowing agencies to route seizures through the feds in order to dodge restrictions placed on them by local laws.

The introduction of a criminal conviction requirement should be the minimum standard any agency with these powers should have to meet. Without it, you get the sort of abuse perpetrated by Virginia's law enforcement, which has seized nearly $3 million/year in vehicles for the last 18 years and approximately $5 million in cash/year over the last decade. Contrary to the oft-stated defense that these programs are necessary to cripple powerful drug lords and multimillion dollar fraudsters, more than half the cash seized from 2001-2006 fell in the $614-1,288 range and the average worth of vehicles seized has hovered at about $6,000.

Law enforcement agencies won't be happy with the new requirement, as it's certain to result in a lower take. According to Institute of Justice statistics, the total amount seized by the state's agencies spiked in 2007, jumping from about $4 million a year to over $25 million a year. And there's been no sign of slowdown since.

It's not a complete fix, but it does at least attack the biggest problem inherent to these programs: the lack of a conviction requirement. Somehow, proponents of asset forfeiture feel there's still some unshattered logic remaining when they contradictorily deem certain property guilty, but somehow can't amass enough evidence to charge its former owners with anything.

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Filed Under: asset forfeiture, conviction, due process, law enforcement, police, stealing, virginia

28 Comments

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Eldakka (profile), 24 Feb 2015 @ 9:22pm

75%?
"preponderance of the evidence," something that sounds like a lot but in reality is far lower than establishing guilt "beyond a reasonable doubt." If the latter edges towards a theoretical 75% assurance of guilt, the percentage for asset forfeiture approaches a coin flip: 51%.
IANAL, but I'd suggest the 75% assurance level you refer to would be more likely covered by the Clear and Convincing evidence standard, with beyond a reasonable doubt at more like the 90% (personally I'd have to be 95% convinced) level.
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Anonymous Coward, 24 Feb 2015 @ 9:25pm

Guns don't kill people, people do... or do they?
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haiku, 24 Feb 2015 @ 10:04pm

And they say that African dictators (e.g. Mugabe & his land-grabs) are bad ?
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Watchit (profile), 24 Feb 2015 @ 10:24pm

So, what happens if someone steals a car to smuggle drugs and they gets caught and the car gets seized for being used to smuggle drugs. Does that mean the original owner gets their car stolen twice?
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That One Guy (profile), 25 Feb 2015 @ 12:45am

How to fix asset forfeiture in one step:
1. 0% of the seized property or funds are allocated to the department that seized them. If the government is involved in the seizure, they still get 0% of the proceeds. Instead, the funds are all put towards a statewide pool, which shall be used only for school funding, on top of the pitiful amount they may already get.

Take away entirely the monetary incentive they have to steal everything they can get their hands on, and I'd imagine their enthusiasm for doing so would drop significantly.
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David, 25 Feb 2015 @ 12:51am

Re:
Of course the car stays stolen^W confiscated. Otherwise, drug dealers will make it a sport to "steal" each others' cars in order to commit crimes.

Or something.
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Anon E. Mous (profile), 25 Feb 2015 @ 3:37am

A conviction, get ready for law enforcement officials to chime in at what a travesty enacting this will be to Law Enforcement across the state.

I can hear Law Enforcement protesting this and saying how this will hamper their efforts to fight crime and take away what has been a very beneficial tool to get criminals off the street and taking the profits produced by illegal activities away from criminals.

Yes Law Enforcement will be crying the blues at the loss of the ability to take your shit without a Judge hearing the evidence that an actual crime and a judgement entered had taken place that would warrant seizure and forfeiture of assets, heaven forbid that a person should have rights enshrined in the constitution and be afforded those rights
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Anonymous Coward, 25 Feb 2015 @ 5:04am

Modern day outlaws and pirates
We need an online app to catalog these abuses with mapping. We can then our travels accordingly to avoid the abusers and communities that enable them. When travel and commerce dries up they may get the point. Anybody that is abused this way needs to fight this in court to make it as hard as possible for these scum to succeed in their crimes.
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Gnu D ogg, 25 Feb 2015 @ 5:09am

They ought to fix the law befpre Beating up and Assassinating corrupt people becomes a "debacle" as well.

Time this nation get its head out of it's ass.

The LEADERS doing this crap are responsible for this horseshit. Quit calling them SIR, start calling them INMATES AT PRISON and FORT LEAVENWORTH
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Quiet Lurcker, 25 Feb 2015 @ 5:38am

Re: How to fix asset forfeiture in one step:
How about the cop who seizes anything is automatically suspended without pay until the suspect is either convicted or found not guilty.

If found not guilty, there need to be enormous consequences for the cop and the department (I'm thinking jail time for the cop, return of the asset and huge financial payments for the department).

Only AFTER a guilty verdict can the state apply to the court for permission to seize assets, and they have to prove the connection beyond the shadow of a doubt. If a third party owns the asset (as a stolen vehicle or similar), then the state has the option of returning the asset to its true owner or or purchasing a brand-new replacement.
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Just Another Anonymous Troll, 25 Feb 2015 @ 6:26am

Re: Modern day outlaws and pirates
Add that to Google Waze. It can show speed trap locations and cop theft locations.
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Nicola Lane (profile), 25 Feb 2015 @ 6:57am

Random Idea From Brit
Please forgive me if my knowledge of US law makes this a worse idea than I already think it is!

On TV shows I usually hear things like "If you cannot afford an attorney one will be provided for you", and I'm sure you must have provisions about providing aid for mentally incapacitated individuals, and surely being detained in a locked storage facility must constitute "arrest" of some sort.

So how about an argument that the property being confiscated should be entitled to an attorney - after all the property has no assets, the property obviously lacks capacity, and surely it has been "arrested".

Well I am sure it won't work - but I have spent a few pleasurable moments imagining a TV show where a psychiatrist interviews "Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls." to determine its mental capacity, then an attorney sitting down with same to ask wwhat its story is.
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Bamboo Harvester (profile), 25 Feb 2015 @ 7:23am

Re: How to fix asset forfeiture in one step:
"Instead, the funds are all put towards a statewide pool, which shall be used only for school funding, on top of the pitiful amount they may already get."

They'll word it like the State Lotteries - "Proceed MAY be used for items such as schooling".

The schools end up with a penny or on the dollar, and those lotteries rake in billions per year.
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Bamboo Harvester (profile), 25 Feb 2015 @ 7:27am

House of Delegates
"Last week the Virginia House of Delegates overwhelmingly approved a bill"

We'll hear about this as front page news for a month or so, then it will vanish, then the Senate will quietly kill it.
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Anonymous Coward, 25 Feb 2015 @ 7:51am

Disagree about minimum standard
The introduction of a criminal conviction requirement should be the minimum standard any agency with these powers should have to meet.
I disagree. This is a necessary but insufficient requirement. Describing this requirement as a "minimum standard" sets the bar lower than it ought to be set. I would argue that the minimum standard should include, at least, one other provision hinted at by the Techdirt author: a requirement that the property's owner be connected to the criminal activity, either as the perpetrator or as a direct and knowledgeable-before-the-fact accomplice. In particular, a knowledgeable-after-the-fact accomplice should not have property at risk because I can already see the prosecutors arguing that the owner is an after-the-fact accomplice because he "should have known" his property was used in a crime.
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Anonymous Anonymous Coward, 25 Feb 2015 @ 7:56am

Re: Modern day outlaws and pirates
No map needed. Don't leave home.
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David, 25 Feb 2015 @ 7:58am

Re: Random Idea From Brit
The right to due process is reserved to citizens instead of things. I'd be the first to nominate 50,000 Cardboard Boxes More or Less for president if those boxes were considered citizens.

Those cardboard boxes are more likely to serve me and my well-being than most presidents these decades.
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smoodle (profile), 25 Feb 2015 @ 8:30am

Lots of states considering related legislation
There's a similar bill in Colorado right now, and several "Good Samaritan" bills suggesting amnesty from forfeiture when someone calls as part of a medical emergency.

Here's a full list:
http://www.billtrack50.com/Public/Stakeholder/o8S18XFe0kuUIy0o5uoRVg
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Anonymous Coward, 25 Feb 2015 @ 8:53am

Re: Re: How to fix asset forfeiture in one step:
Or the old standby: the money from lotteries that goes to education comes with an equal (or greater) cut in funding coming from other sources.
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Anonymous Coward, 25 Feb 2015 @ 9:05am

Re: How to fix asset forfeiture in one step:
I can't see that working, as long as the money is going into another system that shares funding sources with the police. Law enforcement could seize property to fund schools, and then local government could cut school budgets and allocate all the money saved straight back to the police.

Maybe if the seized money went to a system that worked in direct opposition to LE, it would create the right disincentive. All seized money goes to the Public Defender's office?
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beltorak (profile), 25 Feb 2015 @ 11:42am

Re: Disagree about minimum standard
Yes absolutely; the property should be restored to the owner, unless the owner is found guilty for the crime under which the property was seized. None of this "seize for drugs, bust for prostitution, keep the car" bullshit. In fact this should be exactly what the 4th amendment covers. Anything else is (IMHO) an unreasonable seizure. (It should go without saying that seizure of the property should be a reasonable punishment for the crime to begin with.)
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beltorak (profile), 25 Feb 2015 @ 11:44am

Re: Re: Random Idea From Brit
this is it exactly. if the people in power were in any way intellectually honest or even consistent, it would be a different story.

But in These Modern United States: citizens are people who have rights (insofar as they are granted them anyway) and responsibilities (that are imposed on them); corporations (that in many senses "own" citizens) are people that have rights but no responsibilities; and property (that citizens own and are empowered by) have responsibilities but no rights.

How fucked up is that?
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That One Guy (profile), 25 Feb 2015 @ 11:49am

Re: Re: How to fix asset forfeiture in one step:
Heh, now that would be brilliant, if all the funds seized were sent straight to pay the legal fees of those accused of crimes who are unable to afford a lawyer themselves. Money taken by the police would be used to defend those facing the police, that would be great, and provide an even greater disincentive than the idea I threw out.
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Anonymous Coward, 25 Feb 2015 @ 1:58pm

Re:
It's not theft if the Good Guys do it.

They're doing you a favour - merely taking the vehicle to ensure that it doesn't happen again.
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GEMont (profile), 26 Feb 2015 @ 12:15am

Honest politicians, honest cops, honest laws - dreams
Where is the surprise?

So states are now scrambling for a PR fix to their recently exposed legalized theft activities. Totally expected.

Any legislation created for this farce will do absolutely nothing as far as stopping the cops from stealing public property at gun point.

There's just no way the cops can go back to protecting and serving, once they've had a taste of armed robbery and licensed murder.

As soon as one state gets a really good "lawyerly worded" version that sounds perfect but does diddly, all the other states will adopt that particular version of the "No More Reverse Robin Hood Law".

Then, with the public bamboozled into thinking the cops have suddenly become honest, the Sherriff's Men will go right back out and commit some more armed robberies and probably a lot more licensed murders as the public starts to fight back to keep their property from being stolen.

Of course, the inevitable public response to being robbed at gunpoint by the cops will justify a wave of new military equipment purchases from the DoD and the circle just keeps on turning.

Fascism 101 folks.

What is really cool about all of this is that you all get to watch real history taking place right before your eyes.

In the past, fascists took over all the infrastructure of a nation before people even knew they existed.

Of course, that's because fascists are just your own super rich citizens, who want to keep the gravy train for themselves and who have combined their wealth and connections to alter the laws to legalize their own criminal behavior and to prevent any of the folks from the 99% reaching the top.

You should be grateful. You're the first civilization to actually see the process of national social decline via fascism, in action. Lets hope some of us live long enough to warn the next generation this time.

---
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Sheogorath (profile), 26 Feb 2015 @ 4:31pm

Re: Re: Random Idea From Brit
Yes, but surely only citizens can commit crimes, so if property can be guilty of crimes, surely that makes it citizens by default, no?
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Anon, 27 Feb 2015 @ 12:15pm

Re: Disagree about minimum standard
Not only should the property be connected to the criminal conviction, but the property should be directly connected to the specific crime - I.e. it's the getaway vehicle, not the vehicle that may or may not have been purchased with funds that may or may not have come from the crime. Onus should be on the prosecutor if there's no direct connection to crime, to prove the connection of more than 50% of the purchase price from crime proceeds. Oh yeah and the confiscation should be part of the criminal proceedings, with the jury getting to decide if the confiscation is part of the conviction; "What, you found an ounce baggie on him as passenger so you want to take his friend's $20,000 car???" Jury of your peers and all that. If a third party owned the vehicle, their lawyer should be able to argue their case as part of the trial.
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st stephen (profile), 12 Mar 2015 @ 9:04pm

Bad cop. No zamboni.
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