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Virginia forfeiture laws come under scrutiny

Virginia forfeiture laws come under scrutiny

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RICHMOND — The more than $62 million in assets seized by Virginia law enforcement from suspected narcotics traffickers and other drug dealers in the past seven years range from the mundane to the insanely extravagant.

On the high end, gold Krugerrand coins, $36,000 diamond-encrusted watches, a $100,000 Porsche, tricked-out chopper motorcycles, $20,000 worth of sneakers, custom 31-foot fishing boats, waterfront homes and piles of cash — as much as $401,200 in a single bust — top the list of loot that police confiscated since 2008 through Virginia’s civil asset-forfeiture program.

Although police seize nearly anything associated with criminal activity, the largest assets in terms of value have been, without exception, cash — totaling millions of dollars a year.

Nearly $26 million of the $62 million seized has been disbursed so far in civil asset-forfeiture proceedings across the state, with police using the funds to buy Tasers, body cameras, ballistic protective gear, laptops, forensic equipment and additional training for officers.

But the process under Virginia law that police agencies use to have seized assets forfeited to them has come under increased scrutiny this year by liberal and conservative groups and some members of the General Assembly.

Two bills introduced by Republican legislators in the House and the Senate would have required criminal defendants to be convicted of crimes before any assets they used or gained during the commission of crimes could be forfeited to police. But the legislation ultimately was sent to the Virginia Crime Commission for further study.

Gov. Terry McAuliffe also proposed amendments requiring a criminal conviction ahead of forfeiture to a third, less controversial bill that simply required police to conduct an inventory of seized assets and provide a copy to property owners. But the assembly passed by the governor’s amendments, effectively killing them, and McAuliffe signed the original bill into law.

Proponents of tightening the law, including the American Civil Liberties Union and the Virginia Tea Party Federation, claim police can seize and keep property unless owners can prove they obtained it lawfully — placing the burden of proof on the property owner instead of the state. They said the system creates a built-in profit incentive for police and state prosecutors who file lawsuits to obtain the assets.

But opponents, such as the Virginia Association of Commonwealth’s Attorneys and the Virginia Association of Chiefs of Police, say the program’s detractors have erroneously and misleadingly confused federal asset-forfeiture law with Virginia law, which clearly places the burden of proof on the state before property can be forfeited. They say statutory safeguards already are in place and that seized assets in contested cases rarely are forfeited by property owners until after they are convicted of a crime.

Some defense attorneys and other critics, however, say the law is unjust in terms of fair representation because some defendants do not have the means to fight for their property. A national libertarian organization has given Virginia’s forfeiture laws a near-failing grade.

Program supplements tighter police budgets

The stakes are high.

The 227 law enforcement agencies in Virginia that participated in the program from 2008 to 2014 seized 13,881 assets valued at $62.2 million, or an average of $10.3 million a year, according to the Virginia Department of Criminal Justice Services, which administers the program and provided seven years’ worth of data to the Richmond Times-Dispatch for review.

The state’s largest police agencies typically seize hundreds of thousands of dollars a year in cash and assets and have designated officers whose sole responsibility is to administer the programs.

And while state law prohibits law enforcement from using the proceeds for ongoing expenses or annual budgetary items, such as officer salaries, some larger police agencies count on the revenue to supplement their tight budgets.

Police in the Richmond region are among the state’s leaders in the value of total assets seized, as well as the disbursements they receive through the forfeiture process.

From 2008 to 2014, police in Henrico County, Richmond and Chesterfield County seized $2.6 million, $2.4 million and $2.1 million, respectively, in property and cash. Of those sums, the agencies so far have received $1.5 million, $978,000 and $1.2 million, respectively, and additional disbursements are in the pipeline.

The Virginia Beach Police Department is by far the state’s leader in assets seized and disbursements received through forfeiture. The agency, which has seized 1,159 assets valued at $5.6 million since 2008, so far has received $2.8 million of that sum.

Several police agencies, including Richmond and Chesterfield, seemingly have perfected a forfeiture process that has allowed them to keep most of the assets they seize. Since 2008, Richmond has had to return only 8 percent and Chesterfield 10.37 percent — two of the lowest return percentages in the state.

Among the state’s largest police agencies, only Fairfax County and Hampton had lower return rates — 3.10 percent and 6.78 percent, respectively.

Virginia law enforcement agencies also have made good use of the federal civil asset-forfeiture program, collectively raking in more than $61 million in forfeited cash and assets from 2008 through 2014, U.S. Justice Department figures show.

Va. program places burden on state

Asset-forfeiture laws in Virginia are based on the premise that crime should not pay and are significantly different from federal forfeiture laws, which allow for an administrative forfeiture with no court hearing. The burden is on the property owner to prove there was no wrongdoing.

“Virginia has no such parallel,” wrote Lynchburg Commonwealth’s Attorney Michael Doucette, chairman of the Virginia Association of Commonwealth’s Attorneys legislative committee, in a letter this year to Senate Majority Leader Thomas Norment , R-James City County, about McAuliffe’s proposed amendment to a forfeiture bill.

The ACLU condemned the assembly’s rejection of the governor’s amendments to one of the bills, claiming that Virginia law places the burden on property owners and encourages “policing for profit.”

But Doucette said the ACLU “misleadingly confuses federal administrative asset forfeiture with Virginia law.”

Doucette said in his letter that forfeiture reform bills introduced this year likely were spurred by a series of Washington Post stories in 2014 that focused on forfeiture abuses in the federal system, along with a mistaken assumption that Virginia’s laws are similar to federal statutes.

Unlike the federal program, all asset forfeitures in Virginia require a court proceeding, and the burden is on the state to prove “by a preponderance of the evidence” that the property seized is connected to a serious crime — usually felony drug distribution.

In most cases, a criminal case against a defendant is proceeding at the same time as a civil forfeiture case, and, if the defendant seeks to delay the civil case until the criminal case is completed, it is “almost universally granted,” Doucette said.

“So what will happen is, we essentially stay the [civil asset] case until the criminal proceedings are over,” said Chesterfield Assistant Commonwealth Attorney Benjamin Garrison, lead counsel for Chesterfield’s asset-forfeiture program. “And I can tell you every defense attorney in Virginia appreciates that, because it’s protecting their ability to protect their clients’ rights as well.”

An emphasis on probable cause

The laws proposed by Sen. Bill Carrico, R-Grayson County, and Del. Mark Cole, R-Fredericksburg, would have required any action on the forfeiture of property be “stayed” until the defendant is convicted of a crime and has exhausted all appeals. Cole’s bill would have allowed a forfeiture to occur without a final conviction order if the defendant agreed to it as part of a plea agreement, or if the defendant did not file a written demand for the property within a year after it was seized.

Virginia law already allows the courts to stay a forfeiture proceeding related to a criminal charge “for good cause.”

“It has been my experience that the courts will always stay a forfeiture proceeding if the defendant wants to challenge the seizure of the property, regardless of who makes the motion for a stay,” Doucette said.

Chesterfield, Henrico and Richmond prosecutors who handle asset forfeiture say they screen each potential case before proceeding to identify and ultimately protect innocent property owners or lien holders. They also ensure that all the “instrumentalities” of a crime are present when the assets were seized so they can establish they were used or acquired as a result of unlawful activity.

In a drug distribution case, for example, authorities would look for drug scales; bundled cash in various denominations; the packaging of drugs; and how the defendant, if in a car, was using the vehicle.

“I think the department takes the stance that it’s so important that we’re not taking somebody’s property without having probable cause,” said Chesterfield police Capt. T.O. McCullough. “That’s why we’ve assigned detectives to go through this with a fine-toothed comb and make sure, when we do seize something, it is correct.”

Suspects must make it through ‘legal maze’

Yet even with the program’s statutory restrictions, several defense attorneys said the system remains flawed and occasionally victimizes innocent people who usually do not have the means to defend themselves.

“The problem is, if they’re going to take someone’s property in a quasi-criminal proceeding, you should afford them the right of counsel,” defense attorney David Whaley said. “My biggest objection is that you don’t have a right to a lawyer. They can take your property and you can’t afford to get a lawyer and you can’t compete.”

“You can’t do this to people,” added Whaley, who has represented many asset-forfeiture clients for free after defending them on criminal charges. “I shouldn’t be able to take all your property and then give you a legal maze to climb through. It’s unfair.”

Whaley said he has no problem with police and prosecutors taking cash and property derived through drug trafficking. “I don’t think anybody believes you should profit from crime.”

But the forfeiture process is inequitable in terms of fair representation, he said. Many defendants lose by default because they either do not, or cannot, file the required legal affidavits to contest the forfeiture, he said.

Garrison estimated that 75 percent of Chesterfield’s forfeiture cases are default judgments. But that is because the defendants “know they’re guilty, they’ve admitted to it” and do not challenge it, he said.

Whaley and other attorneys also said some people are being wrongly targeted by police, essentially as a result of their low socio-economic status. They are mistaken as drug dealers because they carry large sums of cash to pay their bills and may have relatively small amounts of drugs in their possession, they said.

Whaley cited an ongoing case involving client Damon Thomas, whose car, recently given to him by his father, was seized along with $3,800 in cash after police responded to a hit-and-run accident that was not his fault.

Police found 2 ounces of marijuana and a small set of drug scales in the car — Thomas said the pot was for his personal use — and the $3,800, which Whaley said his client received from selling an older car that same day. The car’s title was transferred through the Department of Motor Vehicles that same day, Whaley said.

Police say “nobody should be walking around with a thousand dollars in their pocket,” he said. “But it doesn’t matter if they claim you’re a drug dealer. It’s just that you have the cash. Some poor people unfortunately prefer to deal in cash.”

While Virginia law “technically does not put a burden on the defendant,” said defense attorney Randy Rowlett, a former Chesterfield prosecutor, if they say or do nothing in their defense, they likely will lose. The “preponderance of the evidence” that prosecutors must show is a “very low burden” to prove, he added, unlike “guilty beyond a reasonable doubt” in a criminal trial.

The Institute for Justice, a nonprofit libertarian public interest law firm, gave Virginia’s forfeiture laws a grade of D-minus, saying they “utterly fail to protect property owners.”

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