Virginia Governor Bob McDonnell has announced support for proposed legislation from Virginia Senator Bill Carrico (SB325 and SB326, the Ensuring Proper and Streamlined Procedures for Virginia’s Asset Forfeiture Laws).

The proposed legislation does not appear to provide anything particularly likable for forfeiture reformers. At minimum, some of the proposed legislation creates tension with Virginia’s 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.”

Absent any rescheduling of tobacco, the Ensuring Proper and Streamlined Procedures for Virginia’s Asset Forfeiture Laws would seem to 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 plain reading of the exemption implies 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. The Virginia Department of Criminal Justice Services Forfeited Asset Sharing Program Manual advises Virginia law enforcement

According to the Code of Virginia, §
19.2-386.22, all money and property used in substantial connection with the manufacture, sale or distribution of
an illegal narcotic can be seized by a law enforcement agency.

Virginia law enforcement are following these laws in lieu of a literal reading of their constitution.

It should also be noted that Virginia law enforcement appear to be violating the Virginia constitution when they choose to take seizures (that clearly don’t fit into the Literary Fund exemption) to federal custody because of a profit incentive.

If profit is the reason for where to take prosecution, law enforcement are arguably abusing discretion to appropriate funds to their departments instead of the Literary Fund which creates tension with Article III’s Separation of Powers language:

The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time; provided, however, administrative agencies may be created by the General Assembly with such authority and duties as the General Assembly may prescribe.

Virginia law enforcement have a clear financial incentive to federally pursue cases where:

1. The amount of the seizure meets minimum DOJ Equitable Sharing Guidelines.
2. The forfeiture would not be eligible to be diverted to Law Enforcement under the Literary Fund exemption.
3. They are not otherwise receiving property incentives for the forfeiture (which may be inappropriate).

In such instances, police departments face a choice of receiving up to an 80% kickback via the Federal Equitable Sharing Program or receiving none of the proceeds because the money would go to the Literary Fund. The Virginia Department of Criminal Justice Services has institutionalized this choice (which does complicate the argument) by stating that it only handles forfeitures involving controlled substances violations (i.e. it only handles forfeitures where there is a profit incentive for the department).*

A 2010 study by the Institute for Justice supports the notion that  forfeiture proceeds are possibly being diverted from the Literary Fund. Federal equitable sharing payments to Virginia law enforcement have skyrocketed in a manner that is inconsistent with the growth rate of local Virginia forfeiture proceeds data.

Virginia local law enforcement agencies only (district attorney and task force data not reliable)

If Governor Bob McDonnell is serious about reform, he’d be wise to order an exhaustive study of all forfeiture data with fealty to the American and Virginian Constitutions coloring any reforms.

*Incidentally, profit incentive could be the reason that Virginia State Trooper CL Murphy took the seizure of the Nuevo Renacer Church‘s parishioner donations to Federal custody. The absence of any alleged underlying drug related criminal predicate (or probable cause, or un-refuted suspicion, or criminal predicate, or any crime) means that the State Trooper’s department would be ineligible for any financial gain on any potential forfeiture claim, unless the case was brought to Federal custody.