Finders looking to keep.
Finders looking to keep. RS

When federal agents and the King County Sheriff's Office conducted an early morning raid in Skyway on October 21, 2020, they seized most everything of value they could get their hands on. The bounty they captured included computers that kids had been using to attend online school during the pandemic, as well as envelopes of cash they’d received as presents from their parents.

It was reported that these agents were collecting “evidence.” King County Sheriff Mitzi Johanknecht declared that “this type of organized crime has a negative impact on the safety of our local neighborhoods.” And yet, the heinous crime that prompted this search and seizure was simply growing and selling cannabis.

“Civil asset forfeiture” is a fancy way of saying “cops can take your stuff whether you’ve done anything wrong or not.” The laws originated in the 1970 Comprehensive Drug Abuse Prevention and Control Act, which gave state and local police departments expanded powers of search and seizure to kickstart President Nixon’s “War on Drugs.” Initially, asset forfeiture laws were touted as a tool to reclaim the wealth of drug kingpins and violent traffickers. Instead, they became a means for cops to target street dealers, sex workers, and other poor and vulnerable groups. Cops capitalized, and civil asset forfeiture became a source of revenue for police.

As Princeton scholar Michelle Alexander wrote in The New Jim Crow: Mass Incarceration in the Age of Colorblindness, “over the years, the list of properties subject to forfeiture expanded greatly, and the required connection to drug activity became increasingly remote.”

We’ve known for many years that Washington State’s civil asset forfeiture laws are problematic. In 2005, former Seattle Police chief Norm Stamper wrote “local police departments make a bundle by seizing cash, stocks, homes, even fine art. These departments have developed a dependency on this extra revenue stream.” A 2017 Washington State Supreme Court decision corroborated Stamper’s viewpoint, opining that “the government has a strong financial incentive to seek forfeiture because the seizing law enforcement agency is entitled to keep most forfeited property.”

Forfeiture laws exacerbate racist disparities in policing and cannabis policy. Cops also tend to make immigrants and non-English speakers the focus of their forfeiture efforts, as linguistic and cultural barriers make the already-confusing legal process of reclaiming seized assets even more daunting. Though cannabis is ostensibly legal in Washington, independent growers of color are disproportionately denied licenses to grow — consequently, cops are more likely to criminalize their businesses and seize their assets.

In 2017, local, state, and federal police participated in the massive “Operation Green Jade” sting, targeting an Asian and Asian American cannabis growing operation. They took cash, gold, marijuana plants and other real property totalling hundreds of thousands of dollars. Between 2001 and 2019, $145 million of assets were seized by law enforcement in Washington State. The revenue stream was lucrative enough in 2018 for the Seattle Police Department to hire a dedicated part-time paralegal to manage asset forfeiture cases.

Civil asset forfeiture is lawful theft. A 2020 report by Policing For Profit identified Washington State’s civil asset forfeiture laws as among the most repressive in the entire country. RCW 69.50.505 states that seizing police must give only 10% of their bounty to the State Treasurer, allowing them to keep 90% of forfeiture proceeds. Once property is seized, the burden of proof is placed on victims to prove their property was legally obtained. Washington’s asset forfeiture law applies, in its own words, “exclusively [to] the expansion of controlled substances-related law enforcement activity.” In other words, it’s a product of the “War on Drugs'' that criminalized dependency and incarcerated millions of innocent people. In the midst of a new Civil Rights moment following the murder of George Floyd in Minneapolis, Washington State must recognize that civil asset forfeiture is a racist law with racist impact.

Attempts to address civil asset forfeiture in Washington State date back at least two decades. In 2001, an unlikely coalition of liberal advocates, moderate lawmakers, and conservative groups agreed that asset forfeiture was unfair. Proposed in the 2001 Washington State Legislative Session, Senate Bill 5935 would have required a criminal conviction for police to seize and sell property. The bill animated both liberal opposition to over-policing, as well as libertarian opponents of state infringement on individual property rights.

S.B. 5935 was backed by the ACLU and the National Rifle Association. Its prime sponsor was then-state Senator Dow Constantine, who in recent years has been subject to criticism by anti-racist activists or being a long-time proponent of the King County Youth Jail. Though S.B. 5935 did not pass, the power of its example lives on: critiquing civil asset forfeiture is far from a radical proposition — or shouldn’t be.

Washington State lawmakers could undo civil asset forfeiture by repealing, or significantly rewriting, RCW 69.50.505. Specific attention could be paid to removing the profit incentive that police have to take your stuff and not give it back. If the present ratio outlined by RCW 69.50.505 were reversed — that is, if 90% of all seized assets went back to the State Treasurer, while cops were only allowed to keep 10% — asset forfeiture cases would amount to revenue capture for the state as a whole, not just for cops. Supplementary legislation can earmark assets ascertained from forfeiture for social services. And S.B. 5935 can be revived to require a conviction before any asset proceedings take place.

Law enforcement lobbyists may argue that asset forfeiture is a matter of principle; of police needing every possible tool to continue prosecuting the failed “War on Drugs.” If this is the case, we should allow the purity of their motives to fully manifest, freed from any material incentive.

Building on the progressive record of former Seattle City Attorney Pete Holmes, the next City Attorney of Seattle will be responsible for defending progressive legislation generated by the Seattle City Council from legal challenges. That legislation could include ending exclusionary zoning laws that persist as a form of redlining, as well as standing up for progressive taxation that will enable the city to build more affordable housing. But economic justice cannot be realized without racial justice. To build a truly inclusive and compassionate city, we must turn our backs on a failed model of policing.

Civil asset forfeiture is a relic of an era we must move on from. An era where the “War on Drugs” expanded the reach of the carceral state under Nixon and later Reagan. An era when former Washington State Governor Gary Locke supported a bill that would turn Washington National Guard into a law enforcement agency so that it could seize its unfair share of assets from vulnerable Washingtonians. An era before the recent wave of states and cities decriminalizing cannabis.

Cops who already have ample budgets funded by taxpayer dollars shouldn’t be allowed to play finders keepers. It’s time we finally lost civil asset forfeiture.

Shaun Scott is the policy and field campaign manager for the Statewide Poverty Action Network, an organization that lobbies lawmakers at the state level for progressive policies related to progressive revenue and police accountability. He is also a Seattle-based writer and organizer, and author of the forthcoming book Heartbreak City: Sports and the Progressive Movement in Urban America (2023, University of Washington Press).

Nicole Thomas-Kennedy is a former public defender who now owns her own law firm dedicated to criminal defense, post-conviction work, and housing and tenants rights issues. She is a candidate for Seattle City Attorney.