When police believe property like a car, boat, or even just cash is tied to a crime, they can seize it and in many instances keep the proceeds.

The practice is known as civil asset forfeiture. A new audit finds that law enforcement agencies here in Washington are complying with the state’s seizure law but could do more to help people trying to reclaim property they’ve lost and to be more transparent about how the system works.

In a 110-page report released Thursday, the State Auditor’s Office delves into a program long used by police in combating drug-related crimes that has drawn fire from critics concerned that property of some racial and ethnic groups is disproportionately targeted.

“This independent analysis offers a clearer picture of a little-understood aspect of our criminal justice system,” State Auditor Pat McCarthy said in a statement. “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.”

State law allows the police to retain up to 90% of the proceeds from forfeited property.

Officers can seize property without arresting, charging or convicting the property owner of a crime, under the law. Technically, civil asset forfeiture is a lawsuit brought by the police agency against the property itself, not the owner, according to the audit.

Police must show – usually to an administrator, not a trial judge and jury – that the property was involved in or is the proceeds of a crime. Since it is a civil case, police do not have to prove that the property owner was guilty of committing a crime. To try to get their property back, owners must file a claim, which assures them a chance to prove they obtained the seized assets legitimately.

If the owner doesn’t file a claim by a given deadline, it is considered forfeited. That’s when it may get auctioned and proceeds kept by the law enforcement agency.

Washington law allows the same police agency that seized property to decide the forfeiture case, an apparent conflict of interest, according to the audit.

For police agencies and the federal government, it’s a tool to help disrupt criminal organizations by confiscating their assets and plowing any proceeds back into crime fighting.

‘Following the law … could do more’

The performance audit released Thursday looked at the forfeiture practices in eight city, county and state agencies between January 2020 and December 2022. They were Centralia, Seattle and Yakima police departments; Grant County and Spokane County sheriff’s offices; Washington State Patrol; Grays Harbor County Drug Task Force and the Port of Seattle police which covers SeaTac International Airport.

Collectively, the agencies conducted 865 civil asset forfeiture cases with the number of cases for each ranging from 27 to 265. The value of property agencies seized ranged from as low as $3.50 to over $450,000 with cash accounting for nearly 75% of property seized, auditors found.

“We concluded that while the agencies we audited followed state law, they could do more to ensure people receive notice of the police’s intent to forfeit their property and understand how to reclaim it,” auditors found.

One of the recommendations is to ensure individuals receive written notice and materials are produced in languages other than English.

While Washington law does specify police collect certain information about the property, it does not require gathering demographic information of those whose assets are seized.

Auditors analyzed U.S. census data on surnames and the racial and ethnic makeup of geographic locations to see if there were any inequities among cases handled by the eight agencies. There were.

They found that people who were Black, Hispanic or of Asian and Pacific Islander descent had their property seized at significantly higher rates than their share of the local population in cases reported by Grant County, Port of Seattle, City of Seattle, Yakima and the Washington State Patrol.

For Spokane County and the Grays Harbor County task force the share of forfeitures for white people exceeded their percentage of the population.

Going forward, auditors recommend police agencies be required to track demographic data on each case. Other data they suggest be collected annually include details on property seized and forfeited, use of proceeds, outcomes of civil and criminal cases tied to seizures, and the number of cases in which a person filed a claim to contest the law enforcement action.

Designating a neutral party outside of law enforcement to oversee forfeiture decisions could help address the perceived conflict of interest of having police deciding cases, the auditors also said.

They urged the Legislature to set up a workgroup to look at the issues raised in the report.

Agree to disagree

Each of the audited agencies responded in December. In general, they agreed with calls for gathering additional data, increasing transparency and doing more to ensure people are aware of the process for reclaiming their property before it is auctioned.

Some also expressed concern with the tone of the report, concerned authors had been too influenced by consulting interested parties opposed to civil asset forfeiture laws across the country.

“This audit was not born out of curiosity, a desire to learn asset forfeiture, or as part of a random procedure to evaluate programs within the state. It is evident the stakeholders have a preconceived position and the (State Auditor Office) audit process was used to support the position,” wrote Bronson Faul, senior assistant city attorney for Yakima.

One thing he noted was the report’s repeated description of forfeitures being low-value property. Most of the ones reviewed by auditors were worth $2,000 or less.

Under current market conditions, that sum would buy about one pound of methamphetamine or 2,000 fentanyl pills.

“Categorizing this as low value does not seem appropriate,” he wrote.

by Jerry Cornfield, Washington State Standard

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