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Unlikely alliance in Virginia could lead to strong reforms to protect property

04/07/2015

Members of the Virginia General Assembly will have a second chance to limit civil asset forfeiture when they reconvene in Richmond on Wednesday, April 15, rekindling a "weird alliance" that features the Commonwealth's chapter of the American Civil Liberties Union and Tea Party groups.

Virginia has some of the worst civil asset forfeiture laws in the country, earning poor grade, D-, from on the nation's leading libertarian public interest firm. "The government must prove, only by a preponderance of the evidence, that property is related to a crime and subject to forfeiture," the Institute for Justice noted of Virginia's civil asset forfeiture laws in its report, Policing for Profit. "In turn, property owners bear the burden of proof for innocent owner claims, effectively making them guilty until proven innocent." Law enforcement in Virginia can keep up to 90 percent of the proceeds of forfeitures, providing a significant profit motive. The remaining 10 percent goes to the Department of Criminal Justice Services.

Del. Mark Cole (R-Spotsylvania) introduced legislation, HB 1287, that would have ended civil asset forfeiture, through which the government can take innocent people's property without due process on the mere suspicion of a crime. The bill addressed the low threshold for seizures by requiring a criminal conviction before the assets are seized. Absent a criminal conviction, seized property would be return to its owner.

"There have been some news reports about some high-profile abuses of the asset forfeiture program, and I looked into it,” Cole told the Heartland Institute in February. “Virginia’s laws were inconsistent, as to whether or not a conviction was required before property can be forfeited. Some offenses require conviction and some offenses don’t."

"I thought that it was fundamentally un-American for the government to be able to come in and take somebody’s property, without them ever having been convicted of a crime. I think it’s reasonable to require a conviction before the government can confiscate someone’s property," he added.

Cole's bill passed the Republican-controlled House of Delegates with overwhelming, bipartisan support. Unfortunately, Democrats joined Republicans, including Majority Leader Tommy Norment (R-James City), to kill HB 1287 in the Senate Finance Committee. Five Republicans voted to keep the bill alive in committee.

The push to reform Virginia's terrible civil asset forfeiture laws is not over. With a session to consider vetoes and amendments beginning on April 15, Gov. Terry McAuliffe, a Democrat, has proposed an amendment, which, according to Cole, is the language from HB 1287, to reform the Commonwealth's civil asset forfeiture laws.

"Asset forfeiture reform has been brought back from the dead!" Cole writes. Senator [David] Marsden, the sponsor of SB 721, and I had discussed amending his bill to include the language during session, but we could not get it done. Senator Marsden then went to the Governor and got him to reverse course (the administration opposed HB 1287 during session) and add the language."

"Now the Senate and House must approve the amendment before it will become law. I am confident that we can get House approval, I am not so sure about the Senate, since they have already defeated HB 1287," Cole surmised. "I encourage everyone to contact their state Senator asking them to support the amendment to SB 721."

Though several Democrats joined Republicans, who hold a narrow majority in the Senate, to defeat HB 1287 in committee, McAuliffe, now that he's reversed his position, could bring them on board, which, with what Republican support exists, could be enough to pass one of the nation's strongest civil asset forfeiture reforms.