Forfeiture of property used in connection with the commission of crimes; finding of guilt required. (HB48)

Introduced By

Del. Mark Cole (R-Fredericksburg) with support from co-patron Del. Bob Marshall (R-Manassas)

Progress

Introduced
Passed Committee
Passed House
Passed Senate
Signed by Governor
Became Law

Description

Forfeiture of property used in connection with the commission of crimes; finding of guilt required. Requires that any action for the forfeiture of property used in connection with the commission of a crime be stayed until the person whose property is the subject of the forfeiture action has been found guilty of the crime authorizing the forfeiture, regardless of whether he has been sentenced. The bill provides that property may be forfeited even though no finding of guilty is made if (i) the forfeiture is ordered by the court pursuant to a plea agreement or (ii) the owner of the property has not submitted a written demand for the return of the property within one year from the date the property was seized. Read the Bill »

Status

02/12/2016: passed committee

History

DateAction
11/25/2015Committee
11/25/2015Prefiled and ordered printed; offered 01/13/16 16100574D
11/25/2015Referred to Committee for Courts of Justice
01/14/2016Assigned to sub: Subcommittee Criminal Law
01/14/2016Assigned App. sub: Subcommittee Criminal Law
01/14/2016Assigned Courts sub:
01/18/2016Subcommittee recommends reporting (8-Y 3-N)
01/28/2016Impact statement from DPB (HB48)
02/10/2016Subcommittee recommends reporting with amendment(s) (7-Y 3-N)
02/12/2016Reported from Courts of Justice with substitute (11-Y 10-N) (see vote tally)
02/12/2016Committee substitute printed 16105392D-H1
02/13/2016Read first time
02/15/2016Read second time
02/15/2016Committee substitute agreed to 16105392D-H1
02/15/2016Engrossed by House - committee substitute HB48H1
02/16/2016Read third time and defeated by House (47-Y 50-N)
02/16/2016VOTE: DEFEATED (47-Y 50-N) (see vote tally)

Video

This bill was discussed on the floor of the General Assembly. Below is all of the video that we have of that discussion, 2 clips in all, totaling 9 minutes.

Transcript

This is a transcript of the video clips in which this bill is discussed.



Del. Bill Howell (R-Fredericksburg): OF THE COMMITTEE SUBSTITUTE. AS MANY AS FAVOR THAT MOTION WILL SAY AYE; THOSE OPPOSED, NO. THE GENTLEMAN FROM SPOTSYLVANIA. THE SUBSTITUTE IS AGREED TO.

[Unknown]: THIS IS THE ASSET FORFEITURE REFORM BILL THAT PASSED OUT OF THE HOUSE LAST YEAR. IT REQUIRES -- IT DOES HAVE DIFFERENCES FROM LAST YEAR'S BILL IN THAT IT ALLOWS MORE EXCEPTIONS TO THE FINDING OF GUILT AND IT ALSO ONLY REQUIRES A FINDING OF GUILT, NOT A CONVICTION, BEFORE ASSETS MAY BE TAKEN, AND -- BY THE GOVERNMENT IN CONNECTION TO A CRIME. I THINK THIS IS A FUNDAMENTAL PROPERTY RIGHT. I DON'T THINK PEOPLE SHOULD BE AT-RISK OF LOSING THEIR PROPERTY TO THE GOVERNMENT IF THEY HAVE NOT BEEN CONVICTED OF A CRIME, AND I HOPE IT WILL BE THE WILL OF THE BODY TO ENGROSSES THE BILL AND PASS IT TO ITS THIRD READING.

Del. Bill Howell (R-Fredericksburg): THE GENTLEMAN FROM RICHMOND CITY.

[Unknown]: THANK YOU, MR. SPEAKER. SPEAKING TO THE BILL?

Del. Bill Howell (R-Fredericksburg): THE GENTLEMAN HAS THE FLOOR.

[Unknown]: I WOULD ASK MY COLLEAGUES TO CONSIDER VOTING AGAINST THIS BILL, AND I'LL EXPLAIN TO YOU WHY: WHEN I WAS IN THE RICHMOND COMMONWEALTH'S ATTORNEY'S OFFICE THIS WAS AN AREA THAT I DID -- HANDLED SOME CASES ON BEHALF OF THE COMMONWEALTH AND ITS ASSET FORFEITURES. TYPICALLY WHAT HAPPENS, IF SOMEONE IS DEALING DRUGS AND THE POLICE CATCH THEM, FOR INSTANCE, IN THEIR CAR, THEY'LL SEIZE THE CAR AT THAT TIME AND MAYBE THERE'S DRUGS IN THE CAR, GUNS IN THE CAR, THERE MIGHT BE A CERTAIN AMOUNT OF CASH IN THE VEHICLE, SO AT THAT TIME THEY CHARGE THEM WITH THE CRIMINAL OFFENSES BUT THEY ALSO SEIZE THE ASSETS WHEN THEY HAVE PROBABLE CAUSE TO BELIEVE THAT THESE ASSETS ARE PART OF THE -- OF A CRIME. AND SO THE POLICE OFFICER HAS TO MAKE A DETERMINATION THEN AND THERE, IS THERE PROBABLE CAUSE TO BELIEVE THAT A CRIME WAS COMMITTED. AND IF HE DOES, HE TURNS THAT INFORMATION OVER TO THE PROSECUTOR'S OFFICE, AND THEY FILE WHAT IS KNOWN AS A NOTICE AND INFORMATION OF SEIZURE AND THEY SEIZE THE ASSET, AND THEY NOTIFY THE PERSON THAT THE ASSET HAS BEEN SEIZED FROM. SO IF IT'S MONEY, THEY NOTIFY THE PERSON AND SAY, YOU KNOW, IF YOU CAN TEST THIS, YOU CAN GO TO COURT, YOU CAN CONTEST IT. AND SO WHAT IS TYPICAL IS, THE PERSON DOESN'T CONTEST IT BECAUSE THEY'RE DRUG DEALERS OR THEY'VE COMMITTED SOME CRIME. THEY'VE GOT ILL GOTTEN GAIN. SO THAT ASSET GETS FORFEITED TO THE COMMONWEALTH. SO LET ME GIVE YOU AN EXAMPLE, AND WHAT THE DELEGATES BILL WOULD DO IS, IT WOULD MAKE THE GOVERNMENT PROVE BEYOND A REASONABLE DOUBT THAT A CRIME WAS COMMITTED IN ORDER TO FORFEIT THE PROPERTY. SO LET ME GIVE YOU AN EXAMPLE OF ONE WHERE THE CRIMINAL WOULD GET HIS STUFF BACK. TWO PEOPLE DRIVING A CAR LATE AT NIGHT, NEW YORK LICENSE TAGS, THEY'RE GOING THROUGH HANOVER COUNTY AND THEY'RE DRIVING 82 IN A 65. THEY GET PULLED OVER BY STATE POLICE. THEY'RE SWEATING PROFUSELY. THEY'VE BEEN MAKING OF YOUR TESTIFY MOVEMENTS WHEN THE OFFICER IS PULLING THEM OVER. HE HAS A FEAR FOR HIS LIFE. HAD HE DOESN'T KNOW EXACTLY WHAT THEY'RE DOING. THEY'RE ACTING EXTREMELY NERVOUSLY. AND SO HE ASKS THEM, HEY, YOU GOT ANY GUNS OR DRUGS IN THE CAR? NO, NO, NO, WE DON'T HAVE ANYTHING LIKE THAT. DO YOU MIND IF I SEARCH? NO RECOLLECTION WE DON'T MIND. SO HE SEARCHES THE CAR AND HE FINDS $50,000 CASH IN THE CAR. OKAY, THESE GUYS ARE ACTING REALLY WEIRD, AND THEY'VE GOT $50,000 CASH. THAT'S A BOAT LOAD OF MONEY, IT'S EXTREMELY UNREASONABLE. I THINK I SHOULD INVESTIGATE FURTHER. HE SEPARATES THE TWO. AND THEY EACH TELL SOME BULL STORY ABOUT WHY THEY HAVE $50,000. AND THERE'S NO RHYME OR REASON TO THEIR STORIES. THEY'RE TOTALLY DIFFERENT. SO ANY REASONABLE OFFICER IN THAT POSITION WOULD THINK, YOU KNOW, SOMETHING IS NOT RIGHT, I CAN'T REALLY PINPOINT IT BUT $50,000, UNEXPLAINABLE, IN A CAR, NEW YORK TAGS, I THINK WHAT I'LL DO IS I'M GOING TO SEIZE THIS, AND THEN WE'LL SEE WHAT HAPPENS. MAYBE I'LL GET SOME MORE EVIDENCE ABOUT THESE POTENTIAL DRUG DEALERS OR THESE POTENTIAL CIGARETTE DEALERS OR WHAT-ALL. SMUGGLERS. OKAY. SO HE TAKES IT TO THE PROSECUTOR IN HANOVER, AND THE PROSECUTOR IS LIKE, THANK GOODNESS YOU SEIZED THE MONEY, WE'LL LOOK INTO IT. WE'LL TRY TO FIGURE SOMETHING OUT. BUT IN THE INTERIM WE'LL FILE THIS NOTICE OF SEIZURE. OKAY. LET'S ASSUME FOR A SECOND THAT THERE'S A COMPLETELY REASONABLE EXPLANATION WHY THEY HAD $50,000 CASH. THEY CAN FILE AN ANSWER AND THEY CAN SAY THAT THEY HAD JUST GOTTEN A LOAN AND THIS WAS THE PROCEEDS THAT HAD BEEN GIVEN TO THEM, THERE SHOULD BE SOME DOCUMENTATION THEY CAN PRODUCE. THEY CAN PRODUCE IT TO THE COMMONWEALTH'S ATTORNEY. THERE'S NOT A COMMONWEALTH ATTORNEY IN THE STATE THAT WOULDN'T GIVE THEM BACK THE MONEY WITH VALID PROOF OF THAT NATURE. AT THE VERY LEAST, IT WOULDN'T BE THAT MUCH TROUBLE FOR THEM TO GO TO COURT AND PRODUCE THE DOCUMENTS THEY HAVE AND THE JUDGE WILL IMMEDIATELY RETURN THEM THE MONEY. BUT IF THEY CAN'T PROVE IT, THEN THEY OUGHT NOT GET BACK THE MONEY. AND YOU KNOW WHAT? MAYBE THE PROSECUTOR DOESN'T HAVE ANY -- ISN'T ABLE TO GET ANY INFORMATION TO CHARGE THEM WITH A CRIMINAL OFFENSE. SO THEY WERE LUCKY. THEY WALKED AWAY SCOTT FREE. THEY ESCAPED GETTING CHARGED, MAYBE GOING TO JAIL, IF IT WAS HANOVER, THEY'D PROBABLY GET 40 YEARS, OKAY? BUT THEY WALKED AWAY. THEY'RE CRIMINALS AND THEY WALKED AWAY. AND THE ONLY THING THEY LOST WAS THAT MONEY BECAUSE THEY COULDN'T PROVE HOW THEY GOT IT BECAUSE EVERYBODY IN THE WORLD KNOWS THEY GOT IT ILL -- THE WRONG WAY. COMMITTING A CRIME. SO HIS BILL IS GOING TO LET SOME CRIMINALS WALK AWAY AND GET THEIR MONEY BACK. SO I'M AGAINST THAT. I CAN TELL YOU I'M AGAINST THAT. AND I HOPE YOU'LL VOTE NO. I WONDER WHAT HAPPENED TO THE TWO GUYS WHILE HE WAS SEIZING THEIR CAR.

Del. Bill Howell (R-Fredericksburg): THE GENTLEMAN FROM SUFFOLK.

[Unknown]: SPEAKING TO THE BILL? THE GENTLEMAN HAT FLOOR. MR. SPEAKER, LADIES AND GENTLEMEN, I APPRECIATE MY FRIEND GIVING THE EXAMPLE, WHICH IS THE EXACT EXAMPLE WHY I SUPPORT THE BILL. IF WE ARE TAKING AN INDIVIDUAL'S PROPERTY, THE GOVERNMENT IS TAKING THEIR PROPERTY, OUGHT NOT IT BE MORE THAN JUST A POSSIBILITY OF A CRIME? OUGHT IT NOT BE MORE OF AN MERE SUSPICION OF A CRIME? WE'RE TALKING ABOUT THE POWER OF THE GOVERNMENT TAKING A PERSON'S PROPERTY. AND IF THEY HAVE COMMITTED A CRIME, AND THAT PROPERTY IS TIED TO THE CRIME, THIN YES, IT SHOULD BE SEIZED, AND ALL THIS BILL DOES, IT SAYS THAT THEY MUST BE FOUND GUILTY. NOT AN MERE SUSPICION, NOT A MERE POSSIBILITY. SO I'M VOTING FOR THIS BILL BECAUSE I BELIEVE IN INDIVIDUAL RIGHTS OF PROPERTY AND THE GOVERNMENT SHOULD NOT BE ALLOWED TO TAKE IT BASED ON SUSPICION. THANK YOU, MR. SPEAKER.

Del. Bill Howell (R-Fredericksburg): THE GENTLEMAN FROM PRINCE WILLIAM, MR. MARSHALL.

Del. Bob Marshall (R-Manassas): MR. SPEAKER, ADDRESSING THE MEASURE?

[Unknown]: BEG YOUR PARDON?

Del. Bob Marshall (R-Manassas): ADDRESSING THE MEASURE?

Del. Bill Howell (R-Fredericksburg): THE GENTLEMAN HAS THE FLOOR.

[Unknown]: THANK YOU. MR. SPEAKER, WHEN I GREW UP AND WENT TO SCHOOL IN THE 1950s, ELEMENTARY SCHOOL, I LEARNED AT THAT TIME THAT JUSTICE REQUIRED PROSECUTORS TO PROVE YOU GUILTY, AND I REMEMBER WHEN THE NUNS WOULD TELL US TO DUCK UNDER THE DESK BECAUSE WE THOUGHT THAT BOMBERS WERE GOING TO FLY OVER D.C. AND THE MISSILES IN ROCKVILLE WOULD MISS, THAT IT WAS THOSE PEOPLE OVER THERE WHO HAD A SYSTEM OF JUSTICE WHICH SAID YOU HAD TO PROVE YOURSELF INNOCENT. WELL, I GUESS I'VE BEEN ENLIGHTENED, MR. SPEAKER. WE NOW HAVE TO PROVE OURSELVES INNOCENT IN THESE UNITED STATES AS OPPOSED TO A PROSECUTOR PROVING US GUILTY BEYOND A REASONABLE DOUBT. I URGE PASSAGE OF THIS MEASURE.

Del. Bill Howell (R-Fredericksburg): SHALL THE BILL BE ENGROSSED AND PASSED TO ITS THIRD READING? AS MANY AS FAVOR THAT MOTION WILL SAY AYE; THOSE OPPOSED, NO.

[Unknown]: OH, DEAR.
OF GUILTY REQUIRED. -- OF GUILT REQUIRED. SHALL THE BILL PASS? THE CLERK WILL CLOSE THE ROLL. AYES 47, NOS 50. AYES 47, NOS 50, THE BILL IS PASSED. -- THE BILL FAILS TO PASS. CONTINUING ON PAGE 45,

Comments

KAB writes:

Without this protection, any assets seized during a stop or arrest does not have to be returned to the person and the police jurisdiction keeps it. That includes people's cars and anything else found by the police. This bill is a step in the right direction to protect citizens' rights even though I would get rid of ii.

ACLU-VA Criminal Justice writes:

Right now in Virginia, law enforcement can take a person’s money or property without even charging that person with a crime. The law enforcement agency that made the seizure then gets to keep 90 percent of what is forfeited. Virginia’s un-American civil asset forfeiture laws fail to protect property owners, are ripe for abuse, and actively encourage policing for profit. The ACLU of Virginia strongly supports HB 48, which would require a criminal conviction before an individual’s property can be forfeited to the Commonwealth.

ACLU-VA Criminal Justice, tracking this bill in Photosynthesis, notes:

The ACLU of Virginia strongly supports this bill. Right now in Virginia, law enforcement can take a person’s money or property without even charging that person with a crime. The law enforcement agency that made the seizure then gets to keep 90 percent of what is forfeited. Virginia’s un-American civil asset forfeiture laws fail to protect property owners, are ripe for abuse, and actively encourage policing for profit. The ACLU of Virginia strongly supports HB 48, which would require a criminal conviction before an individual’s property can be forfeited to the Commonwealth.

Mary Alison Galway writes:

This process has been tremendously exploited in many jurisdictions around the country. I consider a form of theft. Some police departments and local officials have been known to target racial groups, out of town travelers and other vulnerable or disliked groups. It is a violation of our Constitutional protections against unlawful search and seizure as far as I am concerned and needs to be prevented.

ACLU-VA Legislative Agenda, tracking this bill in Photosynthesis, notes:

The ACLU of Virginia strongly supports this bill. Right now in Virginia, law enforcement can take a person’s money or property without even charging that person with a crime. The law enforcement agency that made the seizure then gets to keep 90 percent of what is forfeited. Virginia’s un-American civil asset forfeiture laws fail to protect property owners, are ripe for abuse, and actively encourage policing for profit. The ACLU of Virginia strongly supports HB 48, which would require a criminal conviction before an individual’s property can be forfeited to the Commonwealth.

Right Way Forward Virginia writes:

Among Right Way Forward Virginia's top priorities are ensuring that the constitutional rights of all Virginians are vigorously protected and promoting a fair and accountable criminal justice system. We support this bill. As introduced, HB 48 would be an important first step to end asset forfeiture abuse in Virginia by requiring a criminal conviction. "Innocent until proven guilty" is a bedrock of our criminal justice system, but Virginia’s asset forfeiture laws turn that principle on its head.