HD7 - Asset Seizure and Forfeitures

  • Published: 1989
  • Author: Virginia State Crime Commission
  • Enabling Authority: House Joint Resolution 40 (Regular Session, 1988)

Executive Summary:
The full Crime Commission met on October 18, 1988 and received the report of the subcommittee. After careful consideration, the findings and recommendations of the subcommittee were adopted by the Commission. During the course of the study the subcommittee met on four occasions, heard significant public testimony from the law enforcement community, and was addressed by public officials on the status and use of the Literary Fund, and on current auditing procedures regarding money received from the federal government via the asset sharing program.

The information received by the subcommittee showed a great need for money to combat drug trafficking and that seized/forfeited assets are a great source for such money. Some of the law enforcement needs are currently met by the federal government's sharing of forfeiture proceeds with local law enforcement agencies.

Virginia does not have an equivalent program whereby forfeited proceeds are returned to law enforcement. Rather, pursuant to Virginia law, all forfeited proceeds other than conveyances are diverted to the Literary Fund. As a result, Virginia's statutes are little utilized. (This is reflected by the total of all types of forfeitures received by the Literary Fund in the most recent fiscal year ($150,221).)

The subcommittee also learned of legislation pending at the time of this writing in the U. S. Senate (HR 5210, passed by the House of Representatives September 22, 1988) which could end the federal asset sharing program in Virginia, pointing up the urgency of a change in Virginia law. Finally, the subcommittee recognized the need for a clear and unified drug forfeiture statute, superior to the fragmented statutory scheme now in place which incorporates Virginia Code § 4-56 (conveyances subject to forfeiture for transport of illegal liquor). Upon finding that a great need exists for a return of forfeitures for law enforcement use and upon finding that the Literary Fund would suffer almost no loss whatsoever if such a return were made, and upon recognition of the need to clarify current law, the subcommittee made the following recommendations:

A. Amend the Virginia Constitution

Amend Article VIII, Section 8 of the Virginia Constitution to allow the return of drug forfeiture assets to the state treasury for the purpose of promoting law enforcement. This amendment would change the current constitutional provision requiring all forfeitures go to the Literary Fund.

B. Add Virginia Code Chapter 22.1 (§ 19.2-386.1 et seq.)

Proposed Chapter 22.1 is a comprehensive drug forfeiture statute which eliminates reference to the illegal liquor/forfeiture statute, clarifies procedures such as notice and filing procedures, revenue, etc. It establishes that forfeiture is a civil proceeding independent of any criminal action and explicitly sets a standard of proof (by a preponderance of the evidence) and establishes who must bear the burden of proof on which issues. Altogether, it is a clearer, drug-specific forfeiture statute which reflects policy implicit in current law.

C. Add Virginia Code § 58.1-3127.1

Proposed Virginia Code § 58.1-3127.1 is an essential restatement of existing § 58.1-3l27 but makes it clear that monies to be delivered to local law enforcement agencies by virtue of the federal forfeiture asset sharing program be audited and accounted for by the treasurer, as are other funds received by a city or county.

D. Amend Virginia Code Section 52-4.3

The proposed amendment to Virginia Code § 52-4.3 (State Police Drug Investigation Special Account) makes it clear that the trust fund may receive monies from the federal government by virtue of the federal forfeiture asset sharing program.