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Virginia State Crime Commission Rejects Asset Forfeiture Reform

In the second major blow to criminal justice reform in Virginia recently, the state’s Crime Commission has voted to reject proposed legislation that would require the government to first obtain a conviction or a guilty plea before subjecting the property of the criminal defendants to civil asset forfeiture. The Crime Commission is a part of the legislative branch that studies and reports on proposed legislation affecting criminal justice issues. The Commission is composed of members of both houses of the legislature, a deputy attorney general, and members of the public. The commission’s recommendation is not binding on the legislature; however, it does significantly diminish the bill’s chances of ultimately passing in the Senate (though it overwhelmingly passed earlier this year in the General Assembly before being referred to the Commission by the Senate).

Civil Asset Forfeiture Generally

Civil asset forfeiture is a widespread practice throughout the United States in which local, state, and federal authorities are permitted to seize property obtained by or used in criminal activity. Its procedures take different forms depending on the jurisdiction. Still, two common themes are evident across jurisdictions:

  1. Asset forfeitures are treated as separate proceedings from the criminal charge entirely, thus their results do not depend on proof of guilt; and
  2. Asset forfeitures are technically deemed civil proceedings subject to lower standards of proof than criminal proceedings.

Both of these common elements are present in Virginia’s current system of asset forfeiture. In practice, this means that someone does not even need to be an actual criminal defendant to be subject to asset forfeiture, as long as their property was somehow involved in the alleged crime. It also means that once the government establishes a mere likelihood that the property was involved in a crime, the property owner must then prove that the property falls within one of certain specified exemptions. The exemptions generally protect innocent property owners who were unaware of the fact that their property was being used by another person (such as a tenant or lessee) for criminal activity, which in practice can be hard to prove in a separate proceeding.

Proposed Change

The reform bill studied by the Commission would have retained the separate and civil nature of forfeiture proceedings, but inserted provisions that would have stayed all judgments of forfeiture until a conviction or guilty plea was obtained.

This simple reform would have done away with what most critics consider to be the worst aspect of the controversial practice: that it subjects people to deprivations of property without proof of guilt. The quasi-civil nature of the proceedings has allowed advocates of the program to claim that it satisfies the 5th amendment’s due process requirement. However, in actual fact it has simply enabled law enforcement to seize massive amounts of property from citizens without even charging them with a crime.

Opposition

While the General Assembly’s overwhelming support for reform is encouraging, the tepid reaction in the Senate does not bode well. As for the Commission, it seems to have addressed the issues in some depth at its meeting; however, law enforcement interests are disproportionately represented among its “citizen” members, so its refusal to back the proposal may be understandable. We will continue to monitor the progress of reform attempts for further developments.

Contact a Virginia Criminal Defense Attorney

Are you accused of a crime in the Commonwealth of Virginia? Don’t let the government run roughshod over your rights. Contact the experienced and dedicated Leesburg attorneys at Simms Showers today. We will fight to make sure you receive a fair trial and do not get railroaded. We stay on top of the latest developments in Virginia criminal law and we maintain a commitment to work hard so our clients receive justice. Call us today for a free consultation.

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