Civil Asset Forfeiture

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The premises and processes of civil asset forfeiture – a legal tool to seize and retain property police believe is associated with a crime – are complex. At both a national and a local level, forfeiture has attracted the attention of stakeholders and legislators alike.

Legislators and organizations representing both the police and the public expressed concern that not much is known about certain key aspects of the practice here in Washington. Concerns touched on several areas:

  • State law does not require a criminal conviction to deprive people of their property
  • The method’s approach to due process for the “interested party,” namely the property owner
  • Related ethical issues around the appearance of conflicting interests and a lack of transparency

This audit examined eight police agencies to better understand civil asset forfeiture activity in Washington. It looked at what police have seized for forfeiture, from whom, and how they use the proceeds. The audit also looked at state requirements around forfeitures. Finally, it considered leading practices, seeking ways to address concerns around due process for people involved in these forfeitures.

Read a short summary of the report.

Report Number 1033683 Report Credits

Key results

This audit reviewed Washington’s system of civil asset forfeiture. In doing so, auditors applied two of our Office’s most powerful tools: independence and fact-based analysis. We found that police agencies are following Washington law in seizing property suspected of being involved in a crime. However, the forfeiture system as a whole lacks the same legal checks and balances found in other areas of our justice system.

In addition, the audit found:

  • Civil asset forfeiture typically involved small amounts of cash and low-value goods
  • The practice disproportionately affected some racial and ethnic groups compared to their presence in their communities
  • The state’s civil asset forfeiture law gives police broad authority and few protections to property owners
  • Audited agencies followed requirements of state law , but could do more to help people receive notice and understand how to reclaim property

Background

Civil asset forfeiture is a legal tool that allows the government to seize property that law enforcement officers believe has been involved in or is the proceeds of a crime. The law allows officers to seize property without securing an arrest, charge or criminal conviction of the property owner. Its intent and role in policing have evolved over many decades. Many states have reformed their civil asset forfeiture programs in recent years, to address a variety of concerns around the practice.

Technically, civil asset forfeiture is a lawsuit brought by the police agency against the property itself. In law, the inanimate object – be it car, cash or gun – is the defendant. This makes the property owner only an “interested party” to the suit. Additionally, the law does not provide the property owner an attorney in efforts to regain the seized items. When an interested party does not file a claim or does not prevail on a claim to regain their property, the law allows the police agency to retain or destroy the property.

The audit report contains both a primer and a background chapter that describe key areas for understanding the work in this audit:

  • The law’s intent and goals over time
  • The differences between asset forfeiture processes, including criminal proceedings
  • An overview of state compared to federal actions
  • Current views and concerns around the civil asset forfeiture process nationally

Nature of property forfeitures

Most audited agencies used civil asset forfeiture primarily to seize cash and other property associated with small-scale illegal activity. The property seized was often of relatively low value, due in part to the nature of common circumstances for seizure. Police agencies might also seize property of low value because neither state law nor internal policies forbid doing so.

In some communities, certain demographic groups faced civil asset forfeiture at significantly higher rates compared to their presence in the local population overall. Staff at audited agencies, experts and attorneys offered insights as to why forfeiture affects some groups more than others. The most commonly cited explanations touched on:

  • Issues of policing in some racial and ethnic communities
  • The characteristics of some criminal organizations
  • Racial prejudice
  • Problems of being “unbanked” and therefore carrying larger sums of cash

The audit found that most people involved in a forfeiture with audited agencies were not convicted of a related crime. The conviction rate varied widely between agencies.

Broad police authority, few civil protections

Washington law requires a relatively low standard of evidence to justify seizure and forfeiture of someone’s property. Police agencies must only produce enough evidence to show “it is more likely than not” the property was used for or was bought with money from criminal activity.

Owners must file a claim to regain seized property. At the time, they have an opportunity to present evidence concerning its innocence. However, the audited agencies retained or disposed of most property automatically because no one filed a claim for its return. We asked both defense attorneys and police agency officials why that might be.

  • Attorneys offered many barriers preventing people from filing a claim (discussed on the next tab on this web page)
  • Agency officials also offered potential reasons why people might not file a claim. They said people may not file a claim because they are reluctant to engage with the police or because they may be guilty of drug-related crimes

Issues around potential conflict of interests

State law allows the same police agency that seized property to decide the forfeiture case, an apparent conflict of interest. In most cases we reviewed, audited agencies made the final decision to forfeit property. Other states have addressed this conflict of interest concern by dissociating seizure from forfeiture decisions.

Also, again as state law allows, police agencies retained 90 percent of the proceeds from forfeited property. Stakeholders have raised concerns that this practice creates a financial incentive for seizing property for forfeiture. Redirecting some or all funds to neutral accounts might address concerns around financial incentives. Some states have also taken steps to decrease police participation in the federal Equitable Sharing Program.

 

Help people navigate barriers

Agencies followed state laws around procedural due process for people involved in civil asset forfeitures. However, barriers may prevent owners from filing a claim to recover their property. Examples include: 

  • Owners did not receive notice of the forfeiture
  • Owners consider the cost to reclaim the property too high
  • Language barriers prevented them from understanding the notice
  • A short window to file a claim can limit time to have the notice translated or seek legal representation
  • Required attendance at multiple hearings 

Experts recommend additional practices to provide adequate civil protections to property owners. Only a few audited agencies had put such practices in place. For example, some agencies did not use practices that help ensure property owners receive the forfeiture notice. Few used practices for their written notices that could help address problems of comprehension. We also found that audited agencies also generally lacked staff guidance in two important areas:

  • Ensuring notices had been successfully delivered to people whose property had been seized
  • Ensuring recipients could easily understand what actions to take to reclaim property

Improving transparency

State law does not require police agencies to collect some key data on civil asset forfeiture. Nor does the law require them to make the data they do collect available online. We found stakeholder concerns about transparency could be addressed by introducing reporting requirements to state law. Leading practices and examples from other states could offer Washington a path to greater transparency.

Recommendations

We made recommendations to the audited police agencies to help improve the chances that people receive notice of the police’s intent to forfeit their property and understand what they can do to reclaim the property. We also recommended the Legislature convene a workgroup that will address issues with civil asset forfeiture in Washington. Topics for the workgroup to examine include:

  • Conflict of interest apparent in civil asset forfeiture decisions
  • Potential financial incentive in pursuing forfeitures
  • Current lack of transparency about civil asset forfeiture activity
  • Ways to increase safeguards for property owners facing civil asset forfeiture