It probably seemed like a bright idea at the time: Let the police seize the ill-gotten gains of alleged drug dealers and other suspected criminals and sell it, using the proceeds to buy much-needed crime-fighting gear.
Unfortunately, the process—civil asset forfeiture—did not require convicting anybody of a crime. In fact, it didn't even require charging anybody with a crime. Not surprisingly, this led to rampant abuse, which has been abundantly documented for many years. Various reform efforts, including a 2000 federal law, have been unable to stop what's become known as policing for profit.
But Virginia lawmaker Mark Cole is going to give it another shot. That's as good a sign as any that civil asset forfeiture has jumped the shark.
You can't get much more conservative than Cole, a Republican who represents Spotsylvania in the General Assembly, without falling off the edge of the political spectrum. Cole supports "traditional family values" — so much so that he voted against appointing a Richmond prosecutor and former Navy pilot to a judgeship because he was gay. Cole has sponsored legislation to deny government benefits to illegal immigrants. And to strip state funding for abortions even in cases where the fetus has "gross and totally incapacitating physical deformity or mental deficiency." And to rewrite a state prohibition against guns in schools so private schools could set their own rules. Four years ago, he sponsored a bill to protect people from having microchips implanted in their bodies, in part because such microchips might be used as the "mark of the beast" described in Revelations.
On his website, Cole boasts of supporting law enforcement. "Public safety and emergency services are Mark Cole's top priorities," reads a quote from Stafford County Sheriff Charlie Jett. "He helped ensure that funding was available for pay raises for deputies and state troopers. He has been a strong voice for us in Richmond."
But policing for profit has gone too far, even for Cole. In anticipation of the 2015 legislative session, he already has filed a bill (HB 1287) that would forbid asset forfeiture without a conviction—and even then only after all appeals have been exhausted.
That would have saved a lot of misery for people such as Mandrel Stuart, who couldn't afford to keep his Staunton barbecue business going after police seized more than $17,000 from him in a minor traffic stop. Unlike many in such straits, Stuart did not agree to settle for half his money back and a promise not to sue. He won in court, but still lost his business.
Taking property from people who haven't been charged with any crime is "fundamentally un-American," Cole told the online news organ Watchdog.org. His stance puts him on the same page as the ACLU, which also strongly opposes civil asset forfeiture. Two years ago it settled a class-action case out of East Texas in which "police officers routinely pulled over motorists in the vicinity of Tenaha without any legal justification, asked if they were carrying cash and, if they were, ordered them to sign over the cash to the city or face charges of money laundering or other serious crimes. Almost all of the stops involved Black and Latino drivers. None of the plaintiffs in the case were ever arrested or charged with a crime." The police seized about $3 million this way.
Cole says he has heard from some commonwealth's attorneys who think his bill would make their job harder. That seems highly unlikely—if they view their job as protecting the innocent and prosecuting the guilty. In that case, a statutory guarantee that only the guilty can have their assets seized would only reinforce their job description. If, on the other hand, prosecutors see their job as simply racking up "wins," as measured by the raw volume of money and property seized regardless of whom it came from, then Cole's bill would indeed make their jobs harder—and thank heaven for that.
Still, Cole's bill probably goes too far for some who think civil asset forfeiture is an unalloyed good. So how about a different reform based on the same principle as the practice they defend? In cases where a citizen can show that his money or property was improperly seized, the courts shall return it to him—along with an equivalent sum from the personal property of every individual responsible for the seizure.
That still wouldn't balance the scales: Unlike the police, the citizen would have to prove something. But you gotta start somewhere, right?