Under civil forfeiture, the government can seize and keep cash, cars and other valuables from people who have done nothing wrong. No conviction or indictment is necessary.
Civil forfeiture sounds ripped from the pages of “1984,” but it is actually Virginia state law. Earlier this year, Del. Mark Cole, a Spotsylvania Republican, introduced a bill to reform it. It garnered wide bipartisan support, passing the House of Delegates 92-6. But the Senate Finance Committee sent the bill for further study.
Now Gov. Terry McAuliffe has recommended amending other asset forfeiture legislation to include Cole’s proposed reform. Virginia lawmakers have a rare, second chance in the upcoming veto session to uphold property rights and civil liberties.
To secure a criminal conviction of a property owner, prosecutors have to prove someone is guilty beyond a reasonable doubt. But for civil forfeiture cases in Virginia, the government has only to show by a “preponderance of the evidence” that property was more likely than not used in a crime.
Moreover, the forfeiture takes place in civil court, so these cases have nothing to do with criminal proceedings. No criminal charge is necessary for the government to take property using civil forfeiture. Even if owners are acquitted of a crime, they can still lose their property under civil laws. In other words, civil forfeiture can treat law-abiding citizens worse than criminals.
If McAuliffe’s recommendation is adopted, the state would first have to convict someone of a crime before the government could forfeit his or her property. Otherwise, law enforcement would have to return the property to its rightful owner. This reform would not affect civil forfeiture proceedings for cases in which the owner pleaded guilty to a crime or the owner failed to file a claim to get his or her property back within a year.
Without proper safeguards to protect citizens, law enforcement has transformed civil forfeiture into a revenue stream. According to a 2010 report published by the Institute for Justice, Virginia allows law enforcement to keep 90 percent of the proceeds from a forfeited property; the other 10 percent go to the Virginia Department of Criminal Justice Services.
Last year, The Virginian-Pilot reported that civil forfeiture generated over $57 million for state and local law enforcement agencies from 2008 to 2013. Police departments in Hampton Roads have taken nearly $8.3 million in state and federal forfeiture funds. During that same period, police in Virginia Beach and Norfolk seized 1,208 and 690 assets, respectively, the highest and third-highest totals in the state.
Virginia must make it more difficult to take property from law-abiding Virginians; it must ensure there isn’t rampant “policing for profit.”
Forfeiture reform unites left and right. The ACLU, Americans for Tax Reform and the Institute for Justice all urge the Virginia legislature to restore due process. Nationwide, outrage at forfeiture abuse is spurring lawmakers to act. Last year, Minnesota enacted a landmark reform that requires a criminal conviction or its equivalent before someone can lose his property to civil forfeiture. In Washington, D.C., the City Council voted unanimously to drastically overhaul its laws. Meanwhile, U.S. Sen. Rand Paul and Rep. Tim Walberg have unveiled federal legislation to increase protections for Americans caught in federal forfeiture cases.
Upholding the Constitution can and should unite citizens of all stripes. No one should lose his property without being convicted of a crime.
Nick Sibilla is a writer at the Institute for Justice, a national civil liberties law firm.