Letter: Commonwealth’s attorney clarifies asset forfeiture

I wanted to say a little bit about asset forfeiture, a subject which came up in a recent candidates forum and was covered by your newspaper, as well as in a letter from Patty Hardee. This is how it works in Rappahannock and Page counties, where I have been involved.

There are different types of asset forfeiture in Virginia law, and they serve different purposes. The first, and by far the most common, is the seizure of evidence. These items are seized from citizens as the instruments of crime, such as firearms and knives used in a crime, marijuana and other drugs seized during a drug-related arrest, alcohol and tobacco and pornography when those items are evidence of the offense alleged. The second type of asset typically seized is cash when traceable to drug dealing or other crime, such as receiving stolen property or embezzlement.

The goal of the latter type of seizure is to return the property to the rightful owner. In the case of drug money, the goal is to deprive the drug dealer of the fruits of his crime. This is a very important goal for law enforcement. By taking the cash from drug dealers, in addition to the stiff prison sentences handed down by the courts, it makes the risk of dealing drugs very high and financially painful. Drug dealers profit from human misery. The profits they reap should be confiscated by law enforcement at every opportunity, and be used by law enforcement against them. This applies to small time dealers as well as the Escobars of the world. The scale of dealing matters not — whether selling one pill at a time or hundreds of kilos of cocaine, it is still a crime that is potentially the cause of yet another overdose, shooting, neglect of a child, car accident or theft.

There are procedural safeguards that protect the rights of citizens when facing asset forfeiture. Once property is seized by law enforcement, a notice is given to the commonwealth’s attorney. The commonwealth’s attorney screens the case for its merits and decides whether or not to file an “Information,” naming not only the property seized but the putative owner of that property (and any lienholders), in the clerk’s office of the circuit court.

This notice is mailed to the putative owner. It is important to note that during the pendency of the underlying criminal case, the asset forfeiture civil case is not the subject of any action, as it is unethical for the prosecutor to condition any plea agreement in the criminal matter upon a concession in the civil asset forfeiture case. Not every seizure is pursued because sometimes the prosecutor will decide that it is not supported by the facts, and the property is immediately returned.

After the criminal matter is completed, the prosecutor will then file a notice and motion for judgment that is served on the defendant in the same way any other civil paper is served, and the matter is scheduled for a hearing before the circuit court. The putative owner has the right to present any defenses he may have at this hearing. If the prosecutor is able to prove by a preponderance of the evidence that the property is the fruit of crime, it is forfeited by order of the circuit court.

Upon conclusion of the case in circuit court, the Department of Criminal Justice Services (DCJS) receives any seized cash. They are responsible for distributing the money to the involved agencies. When property is seized by a task force, the member jurisdictions get a percentage (usually shares based on the number of participating jurisdictions), and the funds are then available for use by the agencies according to guidelines established by law.

So for instance, in the Northwest Regional Drug Task Force, money seized in Winchester is also shared with Page County, Shenandoah County and Warren County, and vice versa. Drug forfeiture money is spent by the agencies for enforcement of the drug laws on items such as computers and programs, surveillance equipment, recording devices, weapons, ammunition, and training. The task force seizures are important sources of funding for the policing of drug dealing, and help to relieve the burden on taxpayers. The computers in my office, for instance, cost the taxpayers of Rappahannock County nothing, courtesy of some past local drug dealers! The commonwealth’s attorney usually gets 10 percent for his share of a typical asset seizure, but usually more if it is real estate or a vehicle, and the local sheriff’s office will get its share. A portion goes to DCJS.

There is nothing abusive about asset forfeiture. It is a critical, valuable tool in the fight against drug dealing and crime generally. Citizens are afforded all the same procedural safeguards in the law as are required in any other civil cases. It is simply not true that the police just take people’s property and use it for themselves. In Rappahannock County due process is provided, and scrupulously followed. The end result of all that work is that drug dealers are held to account and at a reduced burden on the taxpayers.  

Arthur L. Goff
Rappahannock County Commonwealth’s Attorney

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