Background

In 1991, citizens of Virginia voted to amend the Constitution of Virginia to permit laws allowing law enforcement agencies to benefit from seizures and forfeitures connected with the illegal distribution of narcotics. The General Assembly passed forfeiture law the same year. The Forfeited Asset Sharing Program (FASP) allows local and state law enforcement agencies to utilize state forfeiture laws to seize and forfeit property with a substantial connection to the illegal distribution of drugs, then receive a percentage of the forfeited funds for law enforcement use. The program also tracks the assets seized based on illegal distribution of drugs until their final disposition. Other forfeiture proceeds 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 for law enforcement expenses. The Code of Virginia specifies that 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 within 21 days of the seizure. Assets are then tracked by DCJS until their final disposition.

Once an asset has gone through the civil asset forfeiture process or the disposition is resolved in another way, the law enforcement agency submits a Form 999 and any documentation such as court orders, expense receipts, bills of sale, etc. to DCJS. DCJS reviews the documentation and closes cases as necessary. Assets forfeited totaling $500 or more are processed and proceeds distributed to the participating agencies by DCJS. Assets valued under $500 are processed by the agencies and reported to DCJS on the FASP Annual Report.

Annual Report Required

All agencies participating in the program must 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 through the online database. The report lists by category expenditures from the asset forfeiture proceeds, 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. Agencies that do not submit a report will have their asset forfeiture proceeds held by DCJS until the agency is in compliance with the reporting requirements.

Basis of Seizure and Criminal Charge Collection

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 Virginia criminal charges and their status for every asset forfeited. DCJS staff then verifies the charges.

At the time the seizure is reported, agencies report the basis for the seizure(s). This information is included in this report and Appendix A. Code of Virginia § 19.2-386.14 also requires DCJS to collect criminal charge information on the federal asset forfeiture proceeds each agency receives. This information is self-reported by the agencies in the program, and then the information is compiled 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 now 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 of the conclusion of the criminal case.

Assets may also be forfeited through a federal conviction and a Virginia civil forfeiture order. For FY2025, DCJS will collect information when defendants are convicted of a federal distribution of illegal drugs crime and a state asset forfeiture of seized assets. Instances of this nature currently show “No Criminal Charges" on Appendix A.

Effects on Asset Forfeiture Proceeds

In FY2024 there has been a slight downward trajectory of proceeds. This may be caused by the criminal conviction requirement. Although the code was amended to require a criminal conviction in 2020, the repercussions are delayed due to the extended time it now takes to complete the forfeiture process. The civil forfeiture case is stayed until the criminal case is concluded. FY2023 saw a trend towards returning to pre-pandemic levels of proceeds distributed. The COVID-19 pandemic caused court closures and delays well into 2022 and had an adverse effect on administration of courts and court cases, including asset forfeiture.