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 totaling $500 or more 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 revenue from forfeitures 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 agency self-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 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 requires DCJS to collect criminal charge information on the federal asset forfeiture funds each agency receives yearly. This information is self-reported by the agencies in the program, and then the information is compiled into the report 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 agreed orders of forfeitures, plea agreements or instances where the owner does not submit a written notice of demand to return the asset within 21 days.

Legalization of Marijuana

The State of Virginia legalized the personal possession of marijuana July 1, 2021. Law enforcement can no longer legally search based on the odor of marijuana, which has caused limitations to law enforcement’s investigation of the illegal distribution of drugs.

Effects on Asset Forfeiture Proceeds

The Covid pandemic caused court closures and delays well into 2021. Most courts fully reopened during FY2022, but another wave of COVID cases caused closures and delays in fall/winter FY2022. This had an adverse effect on administration of courts and court cases, including asset forfeiture. Since criminal cases were delayed and convictions were now required for forfeiture, civil forfeiture cases were delayed. While distributions from the Forfeited Asset Sharing Program to local law enforcement agencies have increased over FY2021, the legalization of marijuana possession, the prohibition of vehicle stops for secondary offenses, and the requirement for a criminal conviction for an asset to be forfeited have affected the distributions. They have not returned to the FY2019 levels.

FY2022 Disbursements to local law enforcement agencies: $4,819,194.72

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