Background

The Forfeited Asset Sharing Program allows local and state law enforcement agencies to utilize state forfeiture laws to seize and forfeit property connected to illegal drug activity, then receive a percentage of the forfeited funds for law enforcement use. In 1991, citizens of Virginia voted to amend the Constitution of Virginia to permit laws allowing law enforcement agencies to benefit from seizures connected with the illegal distribution of narcotics. The General Assembly passed forfeiture law the same year. Proceeds from forfeitures connected with crimes other than illegal drug transactions are sent to the Literary Fund.

Proceeds may include money and property used in “substantial connection" with drug activities as well as anything of value exchanged for controlled substances. The program is a criminal deterrent, increases cooperation between federal, state, and local law enforcement agencies, and strengthens law enforcement through the allowed use of proceeds obtained through forfeiture for law enforcement expenses. The use of the proceeds must supplement, not supplant, the law enforcement agency’s budget.

Virginia asset forfeiture law is accomplished through civil forfeiture of assets seized due to their connection to the illegal distribution of drugs. Law enforcement agencies wishing to participate in the program must submit all asset seizures to the Virginia Department of Criminal Justice Services (DCJS) through an online database by completing a Form 998. Assets are then tracked by DCJS until their final disposition.

Once an asset has gone through the civil asset forfeiture process, the law enforcement agency submits a Form 999 and any documentation such as court orders, expense receipts, bills of sale, etc. to DCJS. DCJS then reviews and closes cases as necessary. Assets forfeited are processed and proceeds distributed to the participating agencies by DCJS.

Annual Report Required

All agencies participating in the program must also submit a FASP Annual Certification Report and Sharing Agreement. This report shows all revenue from forfeiture during the fiscal year, including interest income and forfeiture amounts under $500 that are not required to be reported to DCJS. The report lists by category how the asset forfeiture proceeds are used by the agencies, and DCJS ensures the items purchased comply with the permissible use policy of the program. The General Assembly requires additional reporting on the FASP Annual Report to include the total forfeiture proceeds sent to the Literary Fund each year as well as the total received by each agency from the Federal Equitable Sharing Program.

Criminal Charge Collection

Effective July 1, 2018, Code of Virginia § 19.2-386.14 requires DCJS to collect additional information from local law enforcement agencies participating in the Forfeited Asset Sharing Program. This additional information includes: (i) the offense on which the forfeiture is based listed in the information filed pursuant to § 19.2-386.1, (ii) any criminal charge brought against the owner of the forfeited asset, and (iii) if a criminal charge was brought against the owner of the forfeited asset, the status of the charge, including whether the charge is pending or resulted in a conviction. The Forfeited Asset Sharing Program database collects the required Virginia criminal charge and criminal charge status information for every asset forfeited. In addition, at the time the seizure is reported, agencies now report the basis for the seizure(s). This information is included in the following report and Appendix A.

The change in the forfeiture law by the General Assembly also requires DCJS to collect criminal charge information on the federal asset forfeiture funds each agency receives yearly. That information is attached in Appendix B.

Criminal Conviction Required

Effective July 1, 2020, the General Assembly amended asset forfeiture law to require a criminal conviction for all forfeitures. For the Forfeited Asset Sharing Program, the conviction must correspond to one of the code sections included in § 19.2-386.22. There is an automatic stay to all civil forfeiture cases until completion of the criminal case. Exceptions to the conviction requirement are plea agreements or if the owner does not submit a written notice of demand to return the asset within 21 days. The criminal conviction requirement has increased the number of forfeiture cases non-suited in FY2021.

Effects on Asset Forfeiture Proceeds

In March 2020, the World Health Organization declared COVID-19 as a pandemic. As a result, courts and administrative offices across the state closed and remained closed well into fiscal year 2021. This had an adverse effect on administration of courts and court cases, including asset forfeiture. Distributions from the Forfeited Asset Sharing Program to local law enforcement agencies remain lower during FY2021. The legalization of marijuana possession and the requirement for a criminal conviction for an asset to be forfeited also affected the distributions in FY2021.

FY2021 Disbursements to local law enforcement agencies: $4,196,651.59

FY2020 Disbursements to local law enforcement agencies: $5,056,405.42

FY2019 Disbursements to local law enforcement agencies: $5,769,820.35