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Research & Commentary: Washington State Seeks to Reform Civil Asset Forfeiture Laws

February 26, 2018

In this Research & Commentary, Matthew Glans examines a series of bills in the Washington State Legislature that would add new limits and transparency standards to the state’s civil asset forfeiture laws.

In recent years, states have taken many steps toward limiting the ability of law enforcement agencies to seize property from criminal suspects without conclusive evidence a crime was committed or a prosecution, a process known as civil asset forfeiture. The Washington State Legislature is now considering a series of bills that would add new limits and transparency standards to the state’s civil asset forfeiture laws.

Civil asset forfeiture allows government officials in many states to seize property believed to be involved in a crime without bringing criminal charges against those whose assets have been seized. The standard of proof permitting seizure differs from state to state. Since 2014, 24 states have comprehensively reformed their forfeiture laws, with 14 states now requiring a criminal conviction before assets are seized. Three states have even banned the practice altogether.

Analysts at the nonpartisan Institute for Justice (IJ) have given the State of Washington’s civil asset forfeiture laws a grade of D-, one of the lowest grades in the country. Under existing law, the government only has to prove by a preponderance of the evidence that property is associated with criminal activity in order to seize it. Along with this low standard of proof, innocent property owners are required to bear the burden of proof they had no involvement with the criminal activity associated with their property when they seek to retrieve it.

Another massive problem with Washington’s forfeiture laws is related to how proceeds are spent. Under current law, Washington State law enforcement agencies may retain up to 90 percent of forfeiture proceeds. This gives these agencies an incentive to seize, as much of the funds seized can be used to benefit their departments. Further, while the state does require quarterly reports on what has been seized, the details are both slim and difficult for the public to find.

Each of the three main bills being considered would address one of these issues. The first bill would raise the low standard of proof for seizure by prohibiting courts from allowing seizure to occur unless the owner of the property is found guilty of committing a felony offense and the property to be forfeited was directly involved in the felony offense for which the owner of the property was found guilty.

The second bill seeks to minimize law enforcement agencies’ incentive to seize by requiring the proceeds from of property to be deposited in the education legacy trust account for public schools. This helps improve school funding while ensuring law enforcement officials do not directly gain from seizure.

The third bill takes several steps to increase protection for property owners by placing the burden of proof on the seizing agency, allowing claimants that win their challenges to recover their property in good condition while recovering some of the costs incurred, and making all seizing agencies subject to detailed reporting requirements, even federal agencies. Improving reporting standards will help keep agencies accountable when they seize, including federal agencies. This will also help to limit the use of so-called “equitable sharing agreements,” where states use federal guidelines to bypass state law and share the proceeds with federal agencies.

Proponents of forfeiture argue it allows law enforcement agencies to use seized assets toward their enforcement efforts, transforming property illicitly gained by criminals into resources to be used for public benefit. Critics of the process note it gives law enforcement agencies economic incentives to seize property, corrupting them and penalizing innocent property owners.

Assets should be seized only for criminal reasons, and law enforcement should not have incentives to seize any more property than is necessary and justified. Although incorporating these reforms into one bill would be preferable, each of these bills would take a positive step toward limiting the government’s incentive to seize.

The following documents provide additional information about civil asset forfeiture.

Policing for Profit: The Abuse of Civil Asset Forfeiture 2nd Edition
Dick Carpenter, Lisa Knepper, Angela Erickson, and Jennifer McDonald argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Civil forfeiture threatens the constitutional rights of all Americans. Using civil forfeiture, the government can take your home, business, cash, car or other property on the mere suspicion that it is somehow connected to criminal activity—and without ever convicting or even charging you with a crime. Most people unfamiliar with this process would find it hard to believe that such a power exists in a country that is supposed to recognize and hold dear rights to private property and due process of law,” they write.

An Overview of Recent State-Level Forfeiture Reforms
Jason Snead of The Heritage Foundation examines civil asset forfeiture and how states are moving to reform their forfeiture laws.

Policing for Profit: Federal Equitable Sharing
In this report by The Institute for Justice (IJ), IJ examines federal equitable sharing laws and the effect they have on property seizures in the states. 

Civil Asset Forfeiture: 7 Things You Should Know
This Heritage Foundation Factsheet outlines several important things people should know about civil asset forfeiture.

Playing Both ‘Cops and Robbers’ on Asset Forfeiture
Jesse Hathaway, the managing editor of Budget & Tax News, examines in this article a new digital system that allows highway patrolmen to use civil asset forfeiture laws to seize individuals’ assets stored in bank accounts or on prepaid debit cards at the press of a button. “Civil asset forfeiture creates too many perverse economic incentives. However well-intentioned the idea may be, the practice of civil asset forfeiture has been corrupted and now infringes on Americans’ right to be free from harassment by money-hungry agents of the government,” wrote Hathaway.

The Civil Asset Forfeiture Racket
A. Barton Hinkle of the Reason Foundation examines the growing problems created by civil asset forfeiture and argues for repeal of such laws.

Policing for Profit: The Abuse of Civil Asset Forfeiture
Marian Williams, Jefferson Holcomb, Tomislav Kovandzic, and Scott Bullock argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent,” they write.

Civil Asset Forfeiture Reform Goes Mainstream
Jordan Richardson of The Heritage Foundation discusses how the growing number of civil asset forfeiture abuses have drawn the attention of news media and suggests the increased attention may lead to real reform.

Sidebar: Stricter State Law, More Equitable Sharing
The Institute for Justice examines a 2011 study published in the Journal of Criminal Justice by criminologists Jefferson Holcomb, Tomislav Kovandzic, and Marian Williams that found local and state law enforcement agencies in states choosing to make civil forfeiture more difficult and less financially rewarding through state laws have tended to turn to federal equitable sharing to make up for lost funds.

Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.

The Heartland Institute can send an expert to your state to testify or brief your caucus; host an event in your state, or send you further information on a topic. Please don’t hesitate to contact us if we can be of assistance! If you have any questions or comments, contact Lindsey Stroud, Heartland’s government relations mam, at or 312/377-4000.

Matthew Glans joined the staff of The Heartland Institute in November 2007 as legislative specialist for insurance and finance. In 2012, Glans was named senior policy analyst. @HeartlandGR