Tuesday, April 13, 2010

Probable Cause and Forfeiture Laws

Professor Henry L. Chambers, Jr. teaches law at the University of Richmond's T.C. Williams School of Law.

Roanoke Attorney Melvin Williams practices criminal and constitutional law.

Listen to the full story here

Should the government be able to take property from citizens based solely on the standard of probable cause? That was the question raised by conservative commentator Scott Bullock in a recently published Op-Ed piece in the Richmond Times-Dispatch. In it, he contended that forfeiture laws in our commonwealth are unfair and possibly unconstitutional.

Most of us know a little something about federal forfeiture laws associated with RICO, the Racketeer Influenced and Corrupt Organizations Act with which Washington has attacked organized crime.

Part of RICO allows law enforcement agencies to seize any assets, money, guns, vehicles, boats and such, which may be associated with the suspected crimes. Most states have similar laws, including Virginia; according to Bullock, Virginia’s allow the state to keep forfeited property even if criminal charges are never brought, seemingly reversing the principle of presumption of innocence until proven guilt.

Professor Henry L. Chambers, Jr. teaches courses on Criminal Law, White Collar Crime and Law and Economics at the U of R’s T.C. Williams School of Law. He offers a hypothetical case in which police find a brick of cocaine, confiscate it, use it as evidence then destroy it. But what, he asks, if instead police find $50,000 in cash?

“If we can trace the $50,000 directly to the cocaine, as proceeds of its sale, it shouldn’t matter whether or not we convict the individual of dealing cocaine," Chambers said. "What matters is whether that $50,000 was the proceeds of the cocaine.”

Melvin Williams of the Roanoke law firm Grimes and Williams, P.C. practices criminal law and is certified to practice constitutional law all the way up to the Supreme Court. Williams, who was in Richmond last week attending a conference, spoke to Richmond Independent Radio News and presented a more ambiguous scenario.

“You’re pulled over, and someone in your car maybe has some sort of drug. Marijuana, cocaine, whatever it is, if the police think you knew about that, possession of cocaine is a felony, possession of marijuana, depending on how much there is, could be a felony, the police could seize your car right then and there. What if that’s your only means of transportation, your way to get to work? You don’t get to work, you don’t have a job. The police can seize your car right then and there on the side of the highway, they’re probably going to arrest you too. You might get out of jail on bond in a couple of days at worst. But your car is gone,” Williams said.

Chambers and Williams say the difference between Virginia law and federal law is the standard and burden of proof. Federal law was amended in 2000 to clearly identify the burden of proof as the state's and the presumption of innocence as the suspect’s.

But one section of the Virginia law seems to lay the burden of proof on the commonwealth while another seems to leave the question open. In practice, Williams says no matter what the outcome, the suspect, sometimes a person with only a tenuous connection to the presumed crime, is deprived of the use of his property while the matter is being decided. This could mean months of, say, not having a car to get to work. It's a threat which gives police a powerful incentive to offer non-confiscation in return for cooperation. Williams says he’s a big supporter of law enforcement, but there’s a line beyond which we should not go.

Chambers adds that the confiscated money and proceeds from the sale of forfeited property are divvied up among the local, state and federal agencies that participated in the bust, presenting the agencies with what he calls "incentive problems."

"However, there are incentive problems any time the government can engage in action that brings money into the government. I just don’t think the notion behind civil forfeiture is one that ought to get us any more excited than any other actions government takes that will tend to bring money into government coffers.”

Actions such as, say, taxation -- although you don’t have to be suspected of a crime to be taxed.

-Mark Dorroh

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