While Virginia lawmakers ponder a mediocre and possibly unconstitutional set of reforms to Virginia’s asset forfeiture law, two Virginia sheriffs face prosecution over their abuse of forfeiture funds. Yesterday in Halifax County, investigators served search warrants at a fourth bank, seeking records explaining how former Halifax County Sheriff Stanley Noblin spent some $113,000 in money drawn from the Asset Forfeiture Fund and the Drug Task Force Fund. And in February, former Middlesex County Sheriff Guy Abbott faces trial over 25 felongy charges including embezzlement and misuse of public forfeiture funds. Both Noblin and Abbott were ousted by challengers in November 2011 elections. Both stories deserve some further background.
Enmeshed in drug investigations, forfeiture money is forbidden fruit
Sheriff Stanley Noblin was defeated in November 2011 by Fred Clark on a vote of 5,764 to 3,983. Certainly, the allegations of misconduct played a role in his defeat. A story from the News and Record on Nov. 3, 2011, describes the use of forfeiture funds in drug investigations by both Noblin and his predecessor, Jeff Oakes:
Before Noblin, there was Sheriff Jeff Oakes — whose personal pursuit of record-keeping documents and correspondence involving the Sheriff’s Office spurred the BCI probe of Noblin, the man whom ousted Oakes from office four years ago.
As sheriff, Oakes, too, took out substantial sums of money by cashing personal checks made out to him by the county treasurer, records show. Over a period from September 2005 to April 2007, Oakes cashed checks totaling $41,127, all written in his name off line-item accounts funded by the Halifax County Board of Supervisors for crime investigation and drug enforcement purposes.
Like Noblin, Oakes submitted written requests to county officials each time he sought the checks.
Unlike Noblin, Oakes restricted his requests to locally appropriated funds.
Noblin has tapped this same local pot of money, but he also made additional drawdowns of asset forfeiture funds, distributed by the state to localities following the sale of assets seized from drug traffickers. The Department of Criminal Justice Services in Richmond, which administers the funds, requires agencies to spend the money to combat the spread of drugs; cash for active investigations — so-called “confidential funds” for undercover drug buys and informant tips and testimony, among other things — tops the list of permissible uses.
Regardless of the source, however, the procedure for these cash withdrawals has been the same across administrations: The sheriff forwards a note to the county administrator’s office or treasurer asking to get a check. Does it matter from which account the money was drawn?
The Gazette-Virginian on Jan. 18, 2012, described the service of warrants on the personal accounts of Sheriff Noblin, his wife, and his business, “Noblin’s Lawn Care”; on Jan. 25th, the Gazette-Virginian provided details from the search warrants and affidavit filings in Halifax County Court:
Affidavits filed by Virginia State Police Special Agent W.W. Talbert stated funds totaling $113,180.50 are unaccounted for, including funds requested for and allocated to Noblin from the Asset Forfeiture Fund and the Drug Task Force Fund.
According to Talbert, his investigation has revealed monies totaling approximately $48,500 from the Halifax County State Asset Forfeiture Fund and $34,500 from the Halifax County Sheriff’s Department Drug Task Force Fund were requested by and allocated directly to then-Sheriff Noblin for use in narcotics enforcement.
Talbert said in his affidavit there is no record in ledgers or bank statements received by him, which account for the use of $83,000 requested by Noblin for narcotics enforcement.
Virginia Attorney General Ken Cuccinelli II authorized an investigation of Noblin, then Halifax County Sheriff, in September, following the appointment of a special prosecutor, Southampton County Commonwealth’s Attorney Eric Cooke.
Talbert initiated the investigation Oct. 11 at the request of Cuccinelli.
Sheriff Guy Abbott of Middlesex County was also tossed out by voters in Nov. 2011. Unlike Noblin, he was actually arrested and indicted prior to this election:
Indictments handed down last week by a Middlesex special grand jury allege Sheriff Guy Abbott procured an inflatable boat, two other boats and a vehicle, obtained undisclosed sums of money in an asset forfeiture fund and misused county credit cards, all of which he accessed by virtue of his position as the top law enforcement officer in the county, according to the indictments.
The special grand jury, meeting over the course of several months in the Gloucester County Courthouse basement, indicted Abbott on 25 felony charges covering the first eight years he was in office. The charges include 18 counts of misuse of misappropriation of public assets, four counts of embezzlement and three counts of bribery.
The bribery indictments accuse Abbott of accepting hundreds of dollars on three separate occasions in exchange for “his decision, opinion, recommendation or other exercise of discretion.” According to the indictments, Abbott engaged in bribery on:
•March 31, 2006, when he accepted $800;
•May 17, 2006, when he accepted $300;
•Between March 21 to Sept. 20, 2004, when he accepted $120.
Between 2003 and 2008, Abbott is also accused of using his office to obtain a 1985 Volvo, a Boston Whaler boat, a 1982 Privateer boat and a 1993 Nova Marine inflatable boat, according to the indictments.
Other counts accuse him of misusing various public funds and Visa and Mastercard credit cards over an eight-year period dating back to his first year in office, according to the indictments. Some of the money was in an account in which assets seized for forfeiture are held.
A more complete list of the 25 felony indictments is here. Note that we don’t have a total dollar amount that we can cite here as a tally of how much money Sheriff Abbott is accused of using for his personal benefit, although it appears to be significant. It is also notable that Abbott is able to retain far better defense counsel than the people from which he seized money from while in office; Abbott has retained prominent defense attorney Craig Cooley, who is known for his representation of the defendant in the “Beltway Sniper” case.
The anarchy of drug law enforcement and asset forfeiture
The argument against the status quo asset forfeiture regime is very basic. It is a integral to the notion of the separation of powers that executive branch agencies (monopoly public corporations) should be dependent for their funding on legislative appropriation and oversight. For a public agency to control its own revenue is to allow the interests of that agency, represented by its bureaucrats and functionaries, to determine the priorities, protocols, and culture of that agency. It is particularly dangerous that this particular financing method, asset forfeiture, allows the abrogation of due process through the legal fiction that the property being taken by the government is literally a person.
Most dangerously, these laws vest in individual law enforcement and justice system personnel vast powers that exist beyond credible oversight and undermine the impartiality of discretion. Instead of justice, the focus creeps into the realm of revenue generation. Sheriffs Noblin and Abbott are not unique in their official abuse of forfeiture funds for personal gain, but their impartiality as law enforcers would still be at issue if they had not kept any money for themselves.
Reform should be principle-based, and thorough
AFR analyst Scott Meiner has criticized the forfeiture reform bills in the Virginia legislature this year. I excerpt:
The proposed legislation does not appear to provide anything particularly likeable for forfeiture reformers. Some of the proposed legislation, however, encourages violations of the Virginia Constitution.
SB 325, and SB 326 would amend § 3.2-5139 to direct all forfeitures proceeds from illegal cigarette sales to be put into the “special fund of the Department of Criminal Justice Services” that handles all forfeiture proceeds stemming from violations of criminal laws governing the manufacture, sale, or distribution of controlled substances (§ 19.2-386.14).
Article VIII Section 8 of the Virginia Constitution specifies that “all property accruing to the Commonwealth by forfeiture except as hereinafter provided, of all fines collected for offenses committed against the Commonwealth” shall go to the Commonwealth’s Literary Fund.
Virginia amended their constitution, in 1990, to permit “an exemption from this section for the proceeds from the sale of all property seized and forfeited to the Commonwealth for a violation of the criminal laws of this Commonwealth proscribing the manufacture, sale or distribution of a controlled substance or marijuana. Such proceeds shall be paid into the state treasury and shall be distributed by law for the purpose of promoting law enforcement.”
Thus, absent any rescheduling of tobacco, the Ensuring Proper and Streamlined Procedures for Virginia’s Asset Forfeiture Laws would improperly direct law enforcement to violate Article VIII Section 8 (Assuming such arguments, the legislation would also be unconstitutionally titled under the Virginia Constitution’s Form of Laws clause (Article IV Section 12) as the act would do the opposite of its title).
Virginia may already be violating the exemption clause. A literal reading of the exemption would mean that only the proceeds stemming from a sale of property-that was seized and forfeited to the Commonwealth for a manufacture, sale, or distribution controlled substance violation-would be eligible for the exemption. All other forfeitures should be directed to the Literary Fund for educational purposes…which isn’t happening (although there is some gray area to argue borrowing). The Virginia legislature has passed laws allowing law enforcement to use forfeited property that hasn’t been sold after it was forfeited.
Scott Bullock, senior litigator for the Institute of Justice, a nonprofit public interest law firm, advocates for substantive, principle based reforms in an October 2011 op-ed in the Richmond-Times Dispatch:
In addition to streamlining the forfeiture laws, it is imperative that substantive changes be made to Virginia’s civil forfeiture system.
First, police and prosecutors should be required to obtain a conviction before taking away someone’s property. This would restore the principle that you — and your property — are innocent until proven guilty.
Second, police and prosecutors should not be paid on commission. The legislature must remove the direct-profit incentive in forfeiture efforts by steering forfeiture revenue to the state general fund or another neutral fund, not directly back to law enforcement coffers.
By replacing civil with criminal forfeiture, Virginia can end the absurd practice of a person having to enter a lawsuit against his own property in civil court. The state should be required to convict someone before it takes title to seized property. Moreover, the allure of financial benefits embedded in civil forfeiture encourages police and prosecutors to put the pursuit of property ahead of the pursuit of justice. This policing for profit must also end.
Procedural changes are well and good, but property owners in Virginia need real and substantive changes to protect them from forfeiture abuse.