Mark R. Herring

Virginia Attorney General Mark R. Herring

When it comes to policing for profit, no one is immune from temptation. Just ask Attorney General Mark Herring.

The knock against the practice — sometimes called “civil asset forfeiture” — has been clear and simple for many years: Allowing law-enforcement agencies to confiscate people’s personal property without even filing criminal charges, let alone obtaining a conviction, violates the nation’s bedrock principles regarding justice. What’s more, allowing law-enforcement agencies to keep and spend the proceeds of such seizures gives them an overwhelming incentive to further abuse an already abusive system.

This is not a new concern. Congress tried to address it more than 15 years ago, when it passed the Civil Asset Forfeiture Reform Act. The measure produced underwhelming results. Two years ago two former directors of the Justice Department’s asset-forfeiture division urged Congress to kill the program entirely. “Government self-interest corrupted a crime-fighting tool into an evil,” they wrote in The Washington Post. “As two people who were heavily involved in the creation of the asset forfeiture initiative at the Justice Department in the 1980s, we find it particularly painful to watch as the heavy hand of government goes amok. The program began with good intentions but now, having failed in both purpose and execution, it should be abolished.”

They offer good advice — particularly for Virginia, which the Arlington-based Institute for Justice says has “some of the worst civil forfeiture laws in the nation.” Last year the House of Delegates passed a bill that would have required a criminal conviction before property could be confiscated. The Senate killed the measure.

Legislators did slightly tighten the standard of proof in forfeiture proceedings, which is an improvement — but only a modest one. Not many people can afford to challenge the confiscation of their property, especially when doing so would cost them more in legal fees and lost wages than the property is worth.

Law-enforcement agencies sometimes defend asset forfeiture by arguing that it deprives criminals of their ill-gotten gains and strengthens law enforcement. Who could be against that? But since criminal charges are rarely filed, that’s circular reasoning: “We took the property because the owner was a criminal, and we know he was a criminal because we took his property.”

Last year Attorney General Eric Holder announced some reforms of asset forfeiture. They might not be long for this world: Donald Trump’s nominee for the post, Jeff Sessions, supports policing for profit.

But even existing reforms can be undermined, sometimes by the very people who are supposed to enforce them. Formal Justice Department policy prohibits paying for raises with funds gained through “equitable sharing” of property seizures carried out in joint federal-state operations. But somebody at Justice put together an informal PowerPoint presentation showing states how they could get around that rule.

All a state has to do, the presentation explained, is to use funds from seizures on other expenses, such as operations and vehicle maintenance. That frees up money that can then be allocated for pay hikes.

Virginia took in more than $100 million from a case against Abbot Laboratories. In this instance, the case was legit: The company pled guilty. But Herring’s office then used some of the money just as the Justice presentation advised: to hike salaries. (It also should be noted that Herring’s predecessor, Ken Cuccinelli, distributed the vast bulk of the proceeds to state and local law-enforcement agencies — some of it while he was running for governor. State lawmakers were taken by surprise, and some of them were not happy about it.)

To be clear, salaries need hiking, badly. Some laywers in the AG’s office make substantially less than lawyers working in local commonwealth’s attorney offices — and far, far less than they could make in private practice. That’s not the issue.

The issue is the way in which the Justice Department encouraged states to circumvent its own clear directive — and the fact that Virginia did so. While the behavior is less nefarious than the many cases in which the police have stolen from innocent people, it does offer another example of the ways in which meting out justice can become an exercise in self-dealing.

Think of the episode as one more data point in a case that needs no further proof. It’s high time for Virginia to end asset forfeiture in any case that lacks a criminal conviction — and to allocate the proceeds to charity, so that policing is no longer tainted by profit.

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