Can the Government Take My Property?

A surprising legal procedure has been in the news recently.  Civil forfeiture allows the government to seize property used to commit serious crimes.  In some cases, this penalty makes sense, such as forfeiture of computers used to access child pornography.  However,  the just application of forfeiture gets complicated when property has multiple users or an absent owner, such as seizure of a rental home at which tenants have dealt drugs.   Civil forfeiture is facing challenges both in our state courts and in the highest court of the land.

What is it?

Virginia law allows the government to seize property that they believe has been used in violation of law.  They can keep the property after having a hearing to show probable illicit use.  The government does not have to prove their case beyond reasonable doubt.  If they succeed in court, every owner loses their rights to the assets.  The law even allows for the sale of perishable goods before the hearing takes place.  The proceeds of the sale become the subject of forfeiture, while the original property is gone before the evidence is heard.

Why is it controversial?

The forfeiture system is ripe for abuse because property owners are not entitled to a presumption of innocence.  To protect their property, defendants must show that it was not used for unlawful purposes.  Also, forfeiture hearings can take place before the criminal trial.  This leaves defendants with limited options for responding to a forfeiture claim without waiving the right to remain silent.  Furthermore, because the forfeiture may conclude before the criminal trial does, a person can lose valuable property even though they are acquitted of criminal activity.  Even more troubling is the burden placed on innocent property owners.  Once the government shows clear and convincing evidence that the property was used in criminal activity, innocent property owners must convince the court that they had nothing to do with the crime.  If they fail, they lose their assets.

Why is it in the news?

Two big cases have addressed forfeiture recently, and one of them happened right in our backyard.  Montgomery County convicted a man of distribution after a drug sale from his vehicle.  The government then moved for the vehicle’s forfeiture.  The trial court denied their claim on the vehicle, finding that a single drug sale was not enough to justify taking the property.  The Virginia Supreme Court rejected this interpretation of the law, making it simpler for Virginian governments to gain forfeiture of assets.

As the Virginia Supreme Court appeared to close one door on civil forfeiture defendants, the United States Supreme Court opened another.  In Timbs v. Indiana, the Court considered the case of Tyson Timbs, who had pled guilty to drug dealing and other crimes.  Mr. Timbs’ sentence included $1203 in fees and costs.  Additionally, Indiana moved to seize a truck Mr. Timbs had purchased with the proceeds of his father’s life insurance payout.  The value of the truck was $42,000: over four times the maximum fine Indiana imposes in drug distribution cases.  For this reason, the trial court rejected the government’s forfeiture claim.  The court held that the seizure amounted to an excessive fine in violation of the Eighth Amendment.  The Supreme Court agreed that the excessive fines protection should apply to civil forfeitures that are used to punish criminal behavior.

What can be done?

The Virginia Supreme Court’s decision is not in direct conflict with that of the United States Supreme Court because they address different issues.  The VSC considered what frequency of criminal activity justified forfeiture.  The USSC was ruling on whether forfeitures themselves could be subject to challenge on Eighth Amendment grounds.  The next step will be to determine how courts will define “excessive” in reviewing future forfeiture claims.