Editorial: Tie property seizures by police to convictions

By The Herald Editorial Board

There’s a sense of “serves them right” when law enforcement agencies seize property and other assets that have been used by those committing crimes, then sell the property at auction and put what was used illegally to good use fighting crime.

But Washington state’s current asset forfeiture law leaves open the opportunity for abuse when state and local law enforcement agencies don’t use the tool responsibly.

Bipartisan legislation introduced in the House, HB 1016, would allow agencies to continue to use and benefit from the law but would prohibit law enforcement agencies from taking property without a criminal conviction, and would further require the state to prove a direct link between the seized property and the criminal activity.

Current law allows for forfeiture when the property itself is illegal, was used in a crime, is the proceeds of a crime or was purchased with a crime’s proceeds. By law, local agencies can keep up to 90 percent of the proceeds of such seizures, with 10 percent forwarded to the state’s general fund. But the majority of state statutes allowing forfeiture don’t require the owner of the property to be convicted of the alleged crime, according to a analysis of the legislation prepared by nonpartisan legislative staff.

The Seattle University School of Law’s Race and Criminal Justice Task Force in a 2011 report related that an investigation by the Seattle Post-Intelligencer found that 20 percent of those whose property was seized were never charged, and that 40 percent of the time there had been no conviction.

Those whose property is seized can challenge the action, but have only 45 days to seek the return of personal property and 90 days for real property before it’s forfeited. Law enforcement agencies have to show probable cause that the property is linked to criminal activity in order to seize it, but then have to show a “preponderance of the evidence” if the property owner challenges the seizure.

Even with the burden of proof on the law enforcement agency, the race and justice task force noted, low-income defendants don’t have a right to state-appointed counsel when challenging a seizure and may not be able to afford a lawyer or lack the ability to challenge the seizure by themselves.

There’s a danger as well, the task force and others have noted, in the incentive that exists in allowing law enforcement agencies to keep such a large percentage of the proceeds of forfeiture.

The Institute for Justice, which advocates for private property and First Amendment rights, gave Washington state a D-minus for its civil forfeiture laws because conviction isn’t required for forfeitures, the law’s poor protections for innocent third parties, and the high percentage of profits kept by the individual agencies.

Estimating from records it requested through the state’s Public Records Act, the institute says the state and local agencies have collected more than $108 million between 2001 and 2013, an average of $8.3 million a year. It has also collected an additional $38 million between 2000 and 2013 in partnership with the federal Department of Justice and its “equitable sharing” program, which result from joint task forces and investigations.

As written, the proposed legislation could leave a loophole open that could exploit the DOJ’s equitable sharing program. When California passed similar legislation to tighten up its forfeiture law, some law enforcement agencies got around it by transferring their cases to federal prosecutors; the DOJ then shared 80 percent of the proceeds of forfeiture with the local agencies, the Tenth Amendment Center reported in December.

Rep. David Taylor, R-Moxee, told the San Juan Islander he’s aware of the loophole and plans to offer an amendment that would exempt property under $50,000 from the equitable sharing program; property worth more than $50,000, he reasoned, was more likely to be involved in a major racketeering case.

The civil forfeiture law can be a just and useful tool for law enforcement, but better tying it to actual convictions assures that it is not abused and doesn’t financially harm innocent third parties and those who are not charged or convicted of alleged crimes.

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