The Strange, Failed Fight to Rein in Civil Forfeiture in Washington
Each year, American law enforcement agencies, from small-town police departments to the Drug Enforcement Administration and U.S. Postal Inspection Service, seize billions of dollars’ worth of cash, cars, real estate and other assets.
In most places, including Washington state, the agencies can keep, use or sell this property without winning a criminal conviction. All they have to do is show the property is probably connected to crime, if the owners try to get it back. Many don’t even try.
The process, called “civil asset forfeiture,” has been a staple of the drug war. Like other aspects of the drug war and like police violence, forfeiture tends to disproportionately affect Black Americans and other minorities. Unlike with police violence, however, forfeitures haven’t sparked widespread public outrage.
“Civil forfeiture is one of those technocratic things that happen in the dark,” says Wesley Hottot, a litigator with the Institute for Justice, a libertarian public-interest law firm. “Nobody can be made to care about it until it happens to them.”
Nevertheless, the institute and other civiL liberties advocates have campaigned against civil forfeitures, and newspaper exposés have documented abuses elsewhere in the country. In 2019, in an Indiana case argued by Hottot, the U.S. Supreme Court ruled unanimously that the Eighth Amendment’s ban on “excessive fines” extended to property seizures, so police couldn’t take an expensive Land Rover in a minor drug case that carried a much smaller criminal penalty.
This story is part of a Crosscut series examining civil asset forfeiture in Washington state.
Legislatures in other states have moved to limit civil asset forfeitures or impose stricter requirements on them. Three — New Mexico, Nebraska and North Carolina — have effectively eliminated civil forfeiture altogether.
But in Washington there’s hardly been a peep. A small cadre of legislators has tried for two decades to reform the state’s forfeiture laws but failed to gain traction in Olympia or much attention outside it. When forfeiture makes local news at all, it tends to be routine, police-centered crime news — U.S. attorneys touting annual forfeiture hauls and big border busts, or the closure and seizure of motels accused of harboring drugs and prostitution.
The silence around forfeiture in this state is not for lack of forfeitures. Washington’s cities and counties took in a near-record $11.9 million in forfeiture revenues last year, minus a 10% cut to the state Treasurer’s Office. All but $300,000 came from alleged drug offenses.
“The most optimistic view is that law enforcement here is not engaging in the kind of wholesale abuse seen elsewhere.” says Hottot, who’s based in Seattle. “The other possibility is that the abuse is just not apparent. It could be there’s no abuse, or it could be it’s under the radar.”
One would-be reformer, state Rep. Roger Goodman, D-Kirkland, thinks it’s the latter.
“The forfeiture authority has been grossly abused,” says Goodman, who chairs the House Law and Justice Committee, “in particular in the war on drugs, and particularly by several federally funded drug task forces” — multiagency outfits devised in the ’70s and ’80s to franchise the federal war on drugs to local governments.
These task forces perform a sizable share of Washington’s civil forfeitures. One, the Kent-based Valley Narcotics Enforcement Team, took in $726,000 in 2019. The Grays Harbor Drug Task Force, whose members include police from Aberdeen, Hoquiam and Grays Harbor County, forfeited more than $1.6 million in 2018, a bumper year.
That Grays Harbor take reflected a 2017 operation dubbed “Green Jade,” one of the largest police operations against cannabis in Washington since marijuana was legalized in 2012. The task force raided 44 sites and seized more than 20 houses. Its commander, Hoquiam Police Assistant Chief Joe Strong, calls it a blow against transnational crime: “What we have seen nationwide is organized crime, Chinese nationals coming in to grow marijuana.”
Strong acknowledges that forfeitures support the task force’s operations, but denies that it seizes property to pay the bills. “Sometimes we’ll draw from forfeitures to equip our teams,” he says, “but they’re not our main funding source.”
Forfeitures’ real value, he insists, is as a deterrent. “Sometimes you have to take away the assets of drug dealers and hurt them where it hurts the most,” Strong told me. “They can often do their one to two years behind bars standing on their heads — no problem. But when you take away a gun or car or $5,000 in illicit proceeds, that’s what hurts.”
Recent experience in other states, however, undercuts the oft-repeated contention that forfeiture dissuades would-be criminals. In 2015, New Mexico effectively eliminated civil forfeitures by requiring that money raised through the practice go into the state general fund rather than to law enforcement; police eased off seizing property once they couldn’t keep what they seized. Five years later, researchers with the Institute for Justice found that New Mexico’s crime rates held steady relative to those of neighboring Colorado and Texas, which continued forfeiting on an industrial scale.
The system “turns police and prosecutors into tax farmers when they should be addressing violent crimes,” argues Hottot, the attorney with the institute. “It treats property owners as worse than criminals. It’s far easier to take their stuff than it is to try to put a person behind bars” — and more lucrative.
Eight federal agencies, including the Internal Revenue Service, Fish & Wildlife Service and Justice and Treasury departments, perform civil forfeitures. The Institute for Justice, which has compiled the most complete database of forfeitures nationwide, calculates that federal agencies forfeited about $46 billion worth of property from 2000 to 2019. In recent years, Justice alone has taken in $1.4 billion to $4.5 billion a year — $2.2 billion in 2019.
Another agency, the U.S. Postal Inspection Service, gets less attention but is a prolific forfeiter. Postal inspectors routinely seize cash sent by mail; a recent Postal Inspection Service notice of forfeitures lists cash seizures of as little as $1,200, as well as hundreds of seized money orders. Forfeitees have 30 days to petition to have their money returned — assuming they even know it’s been seized.
People may have innocent, if naive, reasons both for mailing cash and for not claiming it. In June 2015, postal inspectors seized $8,700 mailed to a man who had recently moved to Everett from Alabama to take a job at Boeing. Hottot, whom the man spoke with at the time, says the cash was the man’s savings, which he had his sister send him once he settled in.
“Innocent people were at worst foolish sending it through the mail,” says Hottot, who offered to help the man recover his money. “They weren’t criminal. But going to court to claim it back —that’s a daunting proposition. He told me, ‘Look, I grew up as a Black man in Alabama. My relationship with the government is very different from your relationship. I don’t want to get involved in this.’ ”
State and local law enforcement agencies received a fifth of the federal take, about $8 billion, between 2000 and 2019. Agencies in Washington state received about $87 million from federal forfeitures in the past two decades. It’s a significant dividend for some departments; six agencies, including the Seattle Police Department, the King County Sheriff’s Office and the Spokane Regional Drug Task Force, got six-figure payouts in 2018.
Fewer than half of the states reported their own forfeitures during that 20-year period, but those that did forfeited $23 billion more. Washington police agencies took in nearly $157 million.
‘Arm’s length’ or rigged game?
For police, traffic stops are an especially easy way to rake in forfeiture dollars. They don’t require surveillance, raids or GPS trackers; officers just pull cars over, look for drugs or suspicious cash, and seize everything. Drivers with legitimate reasons to carry large sums can still face forfeiture — or, in one Wyoming case, be pressured to “donate” the money to police in order to be released. The Institute for Justice has documented a number of victims, including a Karen Christian refugee from Myanmar who was touring churches in Oklahoma to collect donations for an orphanage back home.
“Cops have a way of talking their way into a car,” says Robert Schiffner, a veteran Moses Lake attorney who has handled many forfeiture and stop-and-search cases, including one appeal that established new limits on vehicle searches in Washington. “If a person is upside down on the car, they won’t seize it. If it’s a piece of junk, they won’t seize it. … I’ve jokingly asked detectives why they didn’t seize my client’s car. One said, ‘Have you seen it?’ ”
Ryan Rectenwald, the undersheriff of Grant County, where Moses Lake is located, disputes Schiffner’s claims: “The value of a vehicle doesn’t matter. If a 2005 Porsche Carrera and a 1988 Subaru show the same sort of nexus to crime, we’ll forfeit them both.”
For decades, the road winding down to the Gorge Amphitheater, also in Grant County, was the highway interdiction equivalent of fishing in a barrel. But court decisions in the state have put a damper on baseless stops. As a result, Rectenwald says, “vehicle stops [to search for drugs] aren’t something we do.”
Gorge concerts still yield many drug arrests and vehicle seizures, but police now make them via undercover buys on the grounds, typically with informants posing as fans asking other concertgoers if they have a bit of MDMA to spare. “People who literally have one or two tabs of ecstasy in their trunks can lose their cars,” says Schiffner. The police, he adds, “love Dave Matthews concerts — everybody drives a BMW.”
There and elsewhere in Washington, those who contest forfeitures go before a police-appointed hearing examiner — typically a police officer, sometimes the chief. Rectenwald, who serves as hearing examiner in Grant County, says he’s able to stay sufficiently neutral because “as undersheriff I don’t supervise the arresting officers.”
“Who cares?” replies Seattle attorney Douglas Hiatt, who handles forfeiture cases around the state. “He knows them all. He’s a cop. He’s hardly an impartial intermediary.” Hiatt and other experienced attorneys routinely bypass the hearing examiners by having forfeiture cases moved to district court.
Law enforcement may use the threat of criminal charges to make sure seizures aren’t contested. Prosecutors aren’t allowed to offer such swaps outright, notes Schiffner, but they’re implicitly on the table: “It’s a game. The prosecutor says, ‘Make me an offer.’ ”
Gary Ernsdorff, a deputy prosecutor with the King County Prosecuting Attorney’s Office, agrees that such “global resolutions, where a prosecutor might say, ‘We’ll offer to reduce charges if you concede to a forfeiture action,’ ” are a serious concern. “In some jurisdictions, we’ve seen conflicts with criminal and civil actions going on at same time. That’s why this office doesn’t do any forfeitures.”
Two King County deputy prosecutors do in fact specialize in forfeitures. One is assigned to the Sheriff’s Office and the other to the Valley Narcotics Enforcement Team. Ernsdorff says those assignments keep the two prosecutors at arm’s length: “They’re supervised by our office, but operate separately.”
“That’s bullshit!” Hiatt exclaimed when he heard Ernsdorff’s contention, noting that the deputy assigned to the Sheriff’s Office still works for Attorney Dan Satterberg. “She’s on loan to the sheriff. She has an office in the Sheriff’s Office but reports to the prosecutor. This is Satterberg’s policy. That’s all there is to it.”
A 2017 email exchange between Hiatt and Satterberg shows that, despite his image as a humane, progressive prosecutor, Satterberg strongly supports forfeiture actions. “Our criminal case response is insufficient to deter Chinese money from fueling black market grows, so the tool for accountability and deterrence we are left with is forfeiture,” he wrote to Hiatt, who had urged him to get out of “the forfeiture business.”
“I doubt you’ll get much public sympathy for these enormous grows and huge sums of money involved to send tons of black market weed back East,” Satterberg continued in the email, which Hiatt provided. “I will be interested to see what you come up with, but I am not inclined to interfere with the local police desire to forfeit these houses and proceeds.”
Liberals, conservatives push for changes
Not all the legislators trying to reform Washington’s forfeiture laws want to interfere either, but they’d at least like to know exactly what is being forfeited, from whom and on what grounds. They represent an unlikely marriage of ideological opposites.
In the House, liberal Democrat Goodman teamed up with then-Rep. Matt Shea, R-Spokane Valley, before Shea’s involvement in what a House report called “domestic terrorism” made him too toxic for the Republican caucus. In the Senate, one of the chamber’s most conservative members, Republican Mike Padden, also from Spokane Valley, has allied with Democratic Seattle liberal Bob Hasegawa.
“It’s an interesting example where the libertarian right and the left come together around issues of privacy and civil rights,” Goodman notes.
“I am generally a strong supporter of law enforcement,” Padden told me last year. “But I am concerned that property can be taken away even without any conviction for a crime. I would rather let there be a conviction first.”
They’re two in a long line of legislators who have tried to rein in Washington’s civil forfeitures, only to be blocked by the police lobby. In 2002, a bipartisan group of nine House members sponsored a bill that would have effectively done away with civil forfeitures absent a criminal conviction. Proceeds would have gone “exclusively for drug treatment,” not to the police. That bill, like many to follow, never made it to the House floor.
In the 2019 session, Goodman signed on to Shea’s more modest bill, which would have let owners collect legal costs when they successfully contest forfeitures and made clear that the burden of proof falls on the agencies doing the seizing rather than on owners trying to recover their property. It would also have required that the hearing examiners not be members of the police agencies performing the forfeiture.
Goodman says law enforcement signed off on that legislation. But when they brought it forward, both the law enforcement point people on the issue, James McMahan of the Washington Association of Police Chiefs and Kent Prosecutor Michele Walker, opposed it, claiming it wasn’t what they’d agreed to. They insisted they were open to change but, in McMahan’s words, wanted “to make sure we do not lose the ability to make sure crime does not pay.” In his final and most curious argument against the bill, McMahan, who like Walker did not respond to repeated requests for comment, objected to language requiring that, when forfeitures get overturned, agencies return property in the same condition they seized it.
“If we return a car we seized, do we change the oil, check the tires, charge the battery?” McMahan asked rhetorically. “Would the sheriff have had to water and trim 40,000 marijuana plants?”
The bill passed out of committee but never made it to the House floor. It was still on the docket in 2020 but went nowhere. Shea’s sponsorship may have been a kiss of death. But the issue did not go away when he did, and forfeitures keep on coming into police coffers.
Eric Scigliano‘s reporting on social and environmental issues for The Weekly (later Seattle Weekly) won Livingston, Kennedy, American Association for the Advancement of Science, and other honors. He has also written for Harper’s, New Scientist, and many other publications.
Co-published with Crosscut.