Written By Georgia Clark

Introduction

In order to accept a guilty plea, criminal defendants must waive certain rights, such as their right to a jury trial or their right to appeal their conviction.^[1]  However, in some localities, this waiver is broader: plea deals include a provision that defendants must “forfeit” their Fourth Amendment rights for a period of time after their case is resolved.^[2] This provision is categorically different from ordinary plea waivers because it extends beyond the case itself and into the defendant’s daily life after release. Unlike the backward-looking rights typically waived in a plea, this forfeiture is forward-looking: it conditions future liberty on the surrender of an ongoing constitutional protection. The broad scope of this Fourth Amendment forfeiture should raise concerns about the sanctity of fundamental rights.

In practice, Fourth Amendment forfeitures function this way: prosecutors present a plea deal to defendants, and one of the conditions of the plea is that they “shall submit to search and seizure of his person, property, place of residence, vehicle and personal effects, at any time of day or night by any law enforcement officer with or without a search warrant, warrant of arrest or reasonable cause for a period of 3 years from the date of his release from active incarceration.”^[3] The specific duration varies, but three years is common.^[4] Defendants then face a choice: they either accept the plea and waive their Fourth Amendment rights for the next few years, or they reject the plea and face the trial penalty. The trial penalty means that prosecutors typically punish defendants with harsher sentences if they reject the plea and decide to go to trial.^[5]

Fourth Amendment forfeiture as a condition of plea deals is common in many localities in Virginia, along with Georgia, Idaho, and California.^[6] This essay focuses on Virginia because, first, Virginia is one of the only states where this is a widespread practice.^[7] Second, a bill banning Fourth Amendment waivers was recently passed in the 2024 Virginia General Assembly Session, but was vetoed by Governor Youngkin, making this a pressing issue today.^[8] Third, Virginia has a deep history that sheds interesting light on whether this practice coincides with or is antithetical to the core values that formed the nation we know today.^[9]

Further, there is scant legal historical literature on this topic, especially in Virginia. There is little data on Fourth Amendment forfeiture use in each Virginia locality. Accordingly, more research is needed to assess the full extent of this issue. Despite these limitations, this practice raises deep constitutional concerns and, thus, should be reassessed.

Fourth Amendment forfeitures as a condition of plea deals should be banned because they coerce people to surrender a fundamental right in exchange for liberty, undermining the very purpose of constitutional protections. In Part I, fundamental terms are defined. Part II focuses on Fourth Amendment forfeiture in Virginia. Part III connects Fourth Amendment forfeiture to lessons from the slavery and civil rights eras.

Although the law states that guilty pleas must be made freely and voluntarily, Fourth Amendment forfeiture provisions as a condition of plea deals leave defendants with no real choice at all.^[10] Due to this practice becoming the norm in many Virginia plea deals, core constitutional rights are being forfeited at a rapid rate. Therefore, this essay ultimately concludes with an assertion that Fourth Amendment forfeitures as a condition of plea deals undermine the very purpose of constitutional protections.

The Foundations

Terminology

This issue is often colloquially discussed using the term Fourth Amendment “waiver.”^[11] However, the more precise term is a Fourth Amendment “forfeiture.”^[12] A waiver is an “intentional relinquishment or abandonment of a known right or privilege.”^[13] The waiver must be done knowingly, voluntarily, and intelligently.^[14] Forfeiture, on the other hand, occurs by operation of law.^[15] A defendant can forfeit rights or defenses “without ever having made a deliberate, informed decision to relinquish them, and without ever having been in a position to make a cost-free decision to assert them.”^[16]

The scenario faced by criminal defendants who are presented with Fourth Amendment forfeiture provisions is properly understood as forfeiture, not waiver. Embedding the Fourth Amendment forfeiture in the plea deal, which is a ticket to a criminal defendant’s freedom, does not present them with a cost-free opportunity to decide whether to relinquish their Fourth Amendment rights. There is an immense cost to rejecting the plea deal that contains a Fourth Amendment forfeiture provision: in rejecting that plea, the criminal defendant is losing their chance to either go home soon or to have a lighter sentence than they otherwise would if found guilty at trial.

This distinction between forfeiture and waiver is important because the individual has less control over their decision to forfeit a right than they do over their decision to waive a right. This issue raises constitutional concerns because the stakes are high, yet the individual autonomy over this decision is low.

History of Forfeiture

Forfeiture is a concept that came to the United States from England.^[17] Originally, the doctrine of forfeiture was used to maintain American neutrality and to destroy the maritime activities of our enemies by seizing hostile ships.^[18] In 1789, the United States Constitution banned this practice as a punishment for treason.^[19] Although there was disdain for forfeiture when the Constitution was framed, forfeiture was brought back in 1970 with the rise of the war on drugs.^[20] Forfeiture was invoked as a tool to increase punishment for drug dealers by requiring people to forfeit drug-tainted property.^[21]

Over time, forfeiture provisions in plea deals have expanded to forfeiture of fundamental rights, such as the Fourth Amendment protection against unreasonable searches and seizures. The Fourth Amendment was originally created to put an end to the use of general warrants, which the King used to search and seize homes and ships without any reason.^[22] The Virginia Constitution contains a similar provision, calling general warrants “grievous and oppressive.”^[23] Accordingly, it is clear that the sanctity of the Fourth Amendment was important to the founding fathers. Yet the routine practice of Fourth Amendment forfeiture as a condition of plea deals demonstrates governmental cheapening of fundamental rights. In the following section, these foundational concepts will shape the critique of the Virginia case.

Analyzing the Virginia Case

Today, many plea deals in Virginia include a provision in which defendants waive their Fourth Amendment protection against unreasonable search and seizure.^[24] In effect, this process nullifies the weight of fundamental rights. As Lynchburg Public Defender Aaron Boone aptly stated, “when your rights become negotiable, they become cheap.”^[25]

A three-part balancing test advanced by Peter Westen breaks this issue into logical pieces.^[26] Westen argues that forfeiture should only be allowed when the government’s interest in forfeiture outweighs the defendant’s interest in asserting the right.^[27]

The first factor for consideration is the nature of the right, i.e., whether it is fundamental or not.^[28] Here, Virginians are forfeiting their Fourth Amendment rights, which is a fundamental constitutional right. Accordingly, this calculus sways in favor of the defendant’s interest.

Second, the state’s interest in forfeiture should be analyzed.^[29] The government’s interest in forfeiture is quite low. State and local law enforcement agencies in Virginia can, and historically have, enforced public safety without infringing upon the fundamental rights of its citizens. Therefore, forfeiture is not required to effectuate public safety. On the other hand, the defendant’s interest against forfeiting their right is quite high. As explained in Part I, constitutional protections, especially the Fourth Amendment, have been viewed as sacred since the founding of the nation.^[30] Accordingly, this calculus sways in favor of the defendant.

The third factor for consideration is the availability of alternatives to forfeiture.^[31] There are many alternatives to Fourth Amendment forfeiture. The government contends that they offer Fourth Amendment forfeitures to people who they believe need some motivation to behave legally.^[32] However, a convicted person already has an incentive to act lawfully in order to avoid subsequent punishment because they have faced the punishment of conviction itself, as well as any jail time or fines that may have accompanied that conviction. Alternatively, courts can, and have historically, used probation to continue to monitor individuals who the court deems to be a continuous threat to society. These options are valid alternatives to Fourth Amendment forfeiture. Other tools, short of stripping constitutional rights, can achieve the government’s stated goal. Therefore, this third factor also weighs in the defendant’s favor.

Accordingly, since all three of Westen’s factors lean in favor of the defendant’s interest in asserting their Fourth Amendment rights rather than the government’s interest in encouraging defendants to forfeit their rights, Fourth Amendment forfeitures as a condition of plea deals should be banned.

Racial Implications & Lessons from History

Perpetuation of Mass Incarceration

As a whole, plea deals perpetuate mass incarceration. There is broad agreement that America incarcerates too many people.^[33] America incarcerates 693 people for every 100,000 Americans on average, making America the eleventh highest incarcerator in the world.^[34] There are many factors that play into the perpetuation of mass incarceration, and Fourth Amendment forfeitures are one of those factors. When someone waives their Fourth Amendment rights, they are waiving their right to file a Motion to Suppress based on unreasonable search and seizure, a key procedural protection which is commonly used to exclude incriminating evidence at trial that was obtained illegally. Accordingly, illegally obtained evidence may be used against people who have forfeited their Fourth Amendment rights, making it more likely that they are convicted and ultimately incarcerated.

But Fourth Amendment forfeitures do not only perpetuate mass incarceration, they also have a specific, disproportionate impact on people of color.^[35] Freedom of Information Act requests revealed that 96% of all pleas including Fourth Amendment forfeiture in Richmond, Virginia were signed by a person of color.^[36] In Lynchburg, Virginia, a city where only 28% of the population is black, 78% of all Fourth Amendment plea waivers were signed by a black person.^[37] Accordingly, Fourth Amendment forfeitures are not only constitutionally abhorrent, they are also racist.

Historical Examples

Governmental disregard for fundamental rights has occurred throughout many historical periods, and people of color have disproportionately felt the brunt of this disregard. It is no secret that slavery is an example of the government disregarding the fundamental rights of black people. But the government did not only disregard the fundamental rights of slaves, the government also placed slaves in situations where they had to make an impossible choice, just like many criminal defendants face in plea bargains today.^[38]

Specifically, in response to Gabriel’s Conspiracy to plan a slave rebellion in 1800, the Virginia General Assembly in 1806 mandated that all free black people must leave the state within 12 months of their freedom, or when they turn 21.^[39] Free black people could petition to stay in Virginia, but if their petition was denied, they were left with an impossible choice: leave their friends, family, and life behind to keep their free status, or stay in Virginia and risk losing that free status.^[40]

In December 1812, a woman named Jenny Parker was emancipated following the death of her enslaver.^[41] She petitioned to stay in the state, arguing that “all her children and friends” lived in Surry County, Virginia, where she wished to stay.^[42] Relatives of her enslaver and white neighbors supported her request, but the General Assembly rejected her request.^[43] It is unknown whether Ms. Parker was re-enslaved, forced to leave the state, or remained safely in Virginia.

The “choice” faced by free black Virginians, such as Jenny Parker, echoes the situation many criminal defendants face today when confronted with a plea deal containing Fourth Amendment forfeiture provisions. These defendants are left with an impossible choice: accept the plea deal with the forfeiture and be subject to unreasonable search and seizure at any time or reject the plea deal with the forfeiture and risk losing their freedom through the harsher punishment they will face because of the trial penalty. This parallel suggests that the government’s history of presenting black people with a “choice,” which is really no choice at all, is not a piece of distant history but rather still plagues society today.

Another period marked by governmental disregard for fundamental rights is the Civil Rights Era. Rather than being coerced or forced to waive their constitutional rights through plea deals, protestors in the civil rights movement were deprived of their fundamental rights to peacefully protest.^[44] For example, in Garner v. Louisiana, 368 U.S. 157 (1961), sit-in protestors were prosecuted for disturbing the peace, but the Supreme Court held that the convictions were baseless.^[45] The sit-in example sheds light on the Fourth Amendment forfeiture issue facing many criminal defendants today because in both situations, the government abused its discretion to prosecute people for exercising a fundamental right. Both situations are evidence of local law enforcement officers treating people’s fundamental rights as “cheap” throughout history.

These examples of governmental disregard for fundamental rights demonstrate that core American ideals have historically been compromised to oppress people of color. Specifically, history demonstrates that Fourth Amendment waivers are rooted in racial oppression, and therefore, the disproportionate impact that this issue has on communities of color today is no coincidence.

Conclusion

In Virginia, prosecutors in many localities offer plea deals to criminal defendants that include a Fourth Amendment forfeiture, which allows law enforcement to search their home or person at any time of day or night, without any reason or any warrant.^[46] This forfeiture is broader than the other rights that defendants typically waive by accepting a plea deal, such as the right to a jury trial or the right to confront witnesses against them because Fourth Amendment forfeiture extends after the current case has concluded, sometimes for a period of years.^[47] Accordingly, Fourth Amendment forfeiture has far-reaching implications for fundamental rights.

Fourth Amendment forfeitures as a condition of plea deals should be banned because they coerce people to surrender a fundamental right in exchange for liberty, undermining the very purpose of constitutional protections. First, this practice leaves criminal defendants with no real choice. Second, Fourth Amendment forfeitures do not pass the balancing test because the government’s interest in forfeiture does not outweigh the defendant’s interest in asserting their Fourth Amendment rights.^[48] Lastly, Fourth Amendment forfeitures have racist origins and harken back to examples of governmental disregard for fundamental rights in the slavery and civil rights eras.

Long-term change is most likely to come through the legislative branch. The Virginia General Assembly passed a bill banning this practice in 2024, but it was vetoed by the governor.^[49] This bill should be re-introduced in the 2026 General Assembly Session and signed by Virginia’s new governor, Abigail Spanberger, to end this unjust practice once and for all.

Overall, Fourth Amendment forfeiture should be banned because it is rooted in the historical oppression of black people and fundamentally contradicts core constitutional values.

 

 

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^[1] Ellen A. Weincek, Waivers of Compassionate Release in Plea Bargains: The Need for Administrative Action to Prevent Unfair Sentencing, U. Chi. L. Rev. (2021).

^[2] See Lauren Gill, “An Impossible Choice:” Virginians Asked to Waive Constitutional Rights to Get a Plea Deal, Bolts, (May 9, 2024) (discussing Fourth Amendment forfeiture in Virginia today).

^[3] See id. (language from Richmond, Virginia plea agreement).

^[4] See id.

^[5] See Robert F. Wright, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. Pa. L. Rev. 79, 83 (2005).

^[6] See Lauren Gill, “An Impossible Choice:” Virginians Asked to Waive Constitutional Rights to Get a Plea Deal, Bolts, (May 9, 2024) (focusing on Virginia but mentioning other states).

^[7] See id.

^[8] See Va. S.B. 334, 2024 Gen. Assemb., Reg. Sess. (Va. 2024). This bill also bans plea deal provisions that require defendants to waive their right to have their criminal record sealed or expunged later in life. This bill will be reintroduced in the 2026 General Assembly Session with the same language.

^[9] See William B. Porter, Buying a Better Sentence: The Troubling Results from Libretti v. United States, 7 Geo. Mason C.R.L.J 83, 83-84 (1997).

^[10] See Lauren Gill, “An Impossible Choice:” Virginians Asked to Waive Constitutional Rights to Get a Plea Deal, Bolts, (May 9, 2024).

^[11] See id. (using the “waiver” language).

^[12] Peter Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich. L. Rev. 1214, 1214 (1977) (discussing the waiver/forfeiture distinction in the plea context more generally).

^[13] Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

^[14] Peter Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich. L. Rev. 1214, 1214 (1977).

^[15] See id. Defendants may also forfeit rights by failing to assert them.

^[16] See id.

^[17] William B. Porter, Buying a Better Sentence: The Troubling Results from Libretti v. United States, 7 Geo. Mason C.R.L.J 83, 83 (1997).

^[18] See id at 84.

^[19] See id.

^[20] See id.

^[21] See id.

^[22] See Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1197 (2016).

^[23] Va. Const. art. 1 § 10.

^[24] See Lauren Gill, “An Impossible Choice:” Virginians Asked to Waive Constitutional Rights to Get a Plea Deal, Bolts, (May 9, 2024).

^[25] See id. Fourth Amendment forfeiture provisions are now used sparingly in Lynchburg.

^[26] Peter Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich. L. Rev. 1214, 1239 (1977).

^[27] See id.

^[28] See id.

^[29] See id.

^[30] Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1284 (2016).

^[31] Peter Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich. L. Rev. 1214, 1239 (1977).

^[32] See Lauren Gill, “An Impossible Choice:” Virginians Asked to Waive Constitutional Rights to Get a Plea Deal, Bolts, (May 9, 2024). Richmond Commonwealth’s Attorney Collette McEachin made this argument.

^[33] Tracie A. Todd, Mass Incarceration: The Obstruction of Judges, 82 Law & Contemp. Probs. 191, 191 (2019). Alabama alone is within the top five highest incarcerators globally.

^[34] See id at 191-192.

^[35] See Lauren Gill, “An Impossible Choice:” Virginians Asked to Waive Constitutional Rights to Get a Plea Deal, Bolts, (May 9, 2024).

^[36]  See City of Richmond Police Department, FOIA Response to Ashley Shapiro (July 12, 2020). This FOIA response was retrieved from Justice Forward Virginia, a nonprofit organization who received it from Richmond Public Defender Ashley Shapiro.

^[37] See Lauren Gill, “An Impossible Choice:” Virginians Asked to Waive Constitutional Rights to Get a Plea Deal, Bolts, (May 9, 2024).

^[38] Gen. Assembly, An Act to Amend the Several Laws Concerning Slaves, 1806, in Statutes at Large of Virginia, 3 Va. St. L. 251.

^[39] See id.

^[40] See id.

^[41] See Jenny Parker, Petition to Remain in Virginia, Library of Virginia (1813).

^[42] See id.

^[43] See id.

^[44] See Garner v. Louisiana, 368 U.S. 157 (1961).

^[45] The Supreme Court overturned the convictions of black students who were arrested at a peaceful sit-in demonstration at a segregated lunch counter in Baton Rouge, Louisiana.

^[46] See Lauren Gill, “An Impossible Choice:” Virginians Asked to Waive Constitutional Rights to Get a Plea Deal, Bolts, (May 9, 2024).

^[47] See id.

^[48] See Peter Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich. L. Rev. 1214, 1239 (1977).

^[49] See Va. S.B. 334, 2024 Gen. Assemb., Reg. Sess. (Va. 2024).