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Reform Asset Forfeiture Laws in West Virginia

For most of us, it would be wildly illegal to stop a vacationing, pregnant woman and her husband, search their belongings, and make off with more than $10,000 in cash plus their personal cell phone — but West Virginia’s civil asset forfeiture laws allow the police to do just that.

To stop stunning injustices like this, West Virginia should reform its laws by moving from a system of civil asset forfeiture to a system of criminal asset forfeiture.

Defenders of civil asset forfeiture argue it is a vital tool for fighting crime, especially since the start of the “War on Drugs.” They assert that being able to seize property used in illicit activity helps law enforcement to disrupt and prevent criminal activity, including illegal drug trafficking.

However, in West Virginia, under current asset forfeiture laws, you could be entirely above suspicion and still have your property taken, since you don’t have to be charged with a crime for police to take your property. No warrant is required — this sort of activity often occurs when a person is traveling, as in the example above, or like one elderly gentleman whose life savings were seized by the Transportation Security Administration and Drug Enforcement Administrataion at an airport.

On top of that, even if you are charged and cleared of all wrongdoing, your property can still be forfeited to law enforcement. This is because civil asset forfeiture laws allow the police to bring civil charges against your property instead of criminal charges against you — which often forces you to go to court and pay legal fees just for a chance of recovering it.

As if all of that wasn’t enough, civil asset forfeiture turns presumption of innocence on its head. In many states, including West Virginia, it serves as a legalized means of theft that police departments use to turn plunder into profit or make unnecessary purchases. They often get away with it because courts use the lowest standard of judicial review in civil cases rather than the higher standard used in criminal proceedings.

In fact, according to a study conducted by the Institute for Justice, West Virginia has some of the worst forfeiture laws in the country — earning the state a grade of D-minus. Factors that contributed to this poor grade include the lack of conviction required for asset forfeiture, 100% of proceeds from forfeiture going to fund local police departments, and little to no transparency because of a lack of centralized reporting requirements.

In order to rectify injustices against innocent people, restore property and due process rights, and improve trust in law enforcement, West Virginia should enact laws requiring criminal conviction in order for law enforcement to maintain seized property.

Criminal asset forfeiture would help to right these wrongs by requiring that the owner of the seized property be convicted of a crime, and that the property was substantially related to that crime, before the government can assume ownership of the property. Otherwise, the property that has been seized must be returned.

Thankfully, asset forfeiture reform has been the greatest uniting issue for groups on the left and right in West Virginia. The West Virginia chapters of the American Civil Liberties Union and Americans for Prosperity have spent the last few years working tirelessly to defend the due process and property rights of Mountaineers.

Earlier this year, in large part due to their efforts, West Virginia took an important step in the direction of transparency by requiring police departments to report asset forfeitures to the Auditor’s office. However, this reform is hardly enough to stop the ongoing injustices, and although West Virginia may no longer be on the judicial hellhole list, it still feels like hell when those responsible for upholding the law can steal your property without convicting you of a crime.

Unfortunately, mandatory reporting is the only reform that was made to asset forfeiture during this year’s legislative session despite a bill introduced that would’ve implemented criminal asset forfeiture. It is vital that legislators include asset forfeiture reform in their 2021 agendas.

It’s time to rebuild the Mountain State’s trust in law enforcement. You shouldn’t have to worry that the government is going to steal your pregnant wife’s money and cellphone while driving down the highway on vacation.

Kieffer is communications associate at the Cardinal Institute for West Virginia Policy.

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