OLYMPIA — A new state audit says that Washington police agencies could be more transparent about the process of seizing assets like cars, cash or guns in the course of criminal investigations and clearer about how people can get that property back.
Police, in a practice known as civil asset forfeiture, can seize items they believe were used in a crime without an arrest, criminal charge or conviction of the person who owns the property.
But the Washington Office of the State Auditor, in a review of how several Washington police agencies handle the process, found that in most cases, a person who had property seized through forfeiture wasn’t convicted of a crime.
In recent years, 32 states and the federal government have taken steps to limit or make tweaks to civil asset forfeiture, like raising the standard of evidence for seizing and keeping property, according to the report. Proponents argue that the practice deters people from committing crimes and pours resources back into fighting crime, while opponents have raised concerns about due process and property rights.
Between January 2020 and December 2022, more than 100 of Washington’s 250 police agencies got nearly $30 million in property from local and state forfeitures, according to the state auditor’s office. They received an additional $10 million through a partnership with the federal government.
State law lets police agencies keep 90% of the proceeds from forfeitures and to use the money to “help disrupt illegal drug activity,” the report said.
Asset forfeiture is a civil process, where technically the police agency sues the property. Unlike a criminal case, a person whose property is seized isn’t guaranteed the right to a lawyer in the proceeding, if they can’t pay for one.
The report took a closer look at eight police agencies, including the Seattle Police Department. Agencies were chosen based on location, the type of agency and level of civil asset forfeiture activity.
Auditors found that among the 1,000 people who were faced with forfeiture at those eight agencies, only 25% were convicted of a crime. Auditors also found that police often seized property worth less than $2,000, and that at the agencies that were audited, at least one racial or ethnic group was overrepresented in forfeiture data compared with their share of the population, but there were variations between agencies in how much each group was overrepresented.
At the Seattle Police Department, for example, Latinos made up an estimated 23% of the people whose assets were forfeited, despite being 7% of the population, and Black people 17%, despite being 7% of the population. But at the Grays Harbor County Drug Task Force, white people were overrepresented by 9 percentage points.
The state auditor’s report also suggested police agencies can do more to make sure people know their property has been seized, and how the process works to get that property back, like providing information in languages other than English.
In Washington, police can seize property if they believe it is connected to a crime. If the police agency decides not to pursue forfeiture, they can then return the property to its owner. But if the agency decides to move forward, an initial notice goes to the owner (within 15 days), who can file a claim to get it back (within 45 days, or 90 days for real property like land or buildings).
Agencies differ on how they resolve those claims: some use an employee, some contract out for a hearings examiner and some use a city or county employee or contractor. Decisions in contested seizures by the Washington State Patrol are handled by the state Office of Administrative Hearings.
Among the audited agencies, 75% of seized property was automatically forfeited because the owner either did not file a claim, file a claim on time, or failed to attend a hearing. For many of the reviewed cases, it was because claims weren’t filed.
The state auditor found that the police agencies that were audited did follow the law, but also found that Washington law “gives police broad authority and few protections to property owners,” and recommended the Legislature form a work group to study the issue.
In 2023, several House Democrats introduced House Bill 1385, which would have put up more guardrails around the process. It received a hearing and committee approval but didn’t advance further during last year or this year’s legislative sessions.
In a statement, State Auditor Pat McCarthy said Thursday’s report “offers a clearer picture of a little-understood aspect of our criminal justice system.”
“Our audit shows that greater transparency regarding civil asset forfeiture can help Washington continue to discourage wrongdoing by seizing the material elements of crime while also protecting every person’s right to due process.”
In a formal response to the audit, Washington State Patrol Chief John Batiste and Office of Financial Management Director David Schumacher noted that the auditor’s report only touched briefly on some factors that “drastically” affected criminal prosecutions and the outcome of seizures.
They said those factors include backlogs in prosecutors’ offices, the pandemic, and how, in 2021, the Washington Supreme Court tossed the state’s felony drug possession statute, which then led the Legislature to reform the state’s drug possession laws that year and again in 2023.
“We encourage lawmakers to carefully engage with a diverse group of police and legal experts before implementing the recommendations in the report to avoid exacerbating the devastating impacts of drug trafficking and human trafficking on Washington communities,” they wrote.
