Washington Law Review

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Police or Pirates? Reforming Washington’s Civil Asset Forfeiture System

October 01, 2021 | 96 Wash. L. Rev. 1147

Abstract: Civil asset forfeiture laws permit police officers to seize property they suspect is connected to criminal activity and sell or retain the property for the police department’s use. In many states, including Washington, civil forfeiture occurs independent of any criminal case—many property owners are never charged with the offense police allege occurred. Because the government is not required to file criminal charges, property owners facing civil forfeiture lack the constitutional safeguards normally guaranteed to defendants in the criminal justice system: the right to an attorney, the presumption of innocence, the government’s burden to prove its case beyond a reasonable doubt, and protection from double jeopardy, among others.

Washington’s civil forfeiture laws currently provide minimal legal protection for property owners and contain a profit motive for police to pursue property forfeiture. Washington agencies need only prove property is connected to illegal activity by a preponderance of the evidence to forfeit, or permanently keep, the item. This is the second lowest burden of proof for civil forfeiture in the country. Moreover, Washington state law allows agencies to retain 90% of the proceeds from forfeited property. Washington also utilizes administrative forfeitures, which are nonjudicial proceedings handled by an officer of the seizing agency. These provisions combine to create serious due process concerns in Washington’s civil forfeiture system.

This Comment addresses these concerns and proposes a reform of the statutory scheme to eliminate civil forfeiture completely by replacing it with a criminal forfeiture system like New Mexico’s. Under New Mexico law, property owners must be convicted of a crime before their property can be forfeited and all forfeiture proceeds are transferred to the state’s general fund. By funneling forfeitures through the criminal system and eliminating any profit motive, New Mexico property owners are provided with legal protections that are severely lacking in Washington’s current civil forfeiture system. Washington should implement similar reforms to protect the due process rights of property owners and prevent forfeiture abuse by law enforcement.

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