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Shawn Vestal: When cops seize property, due process is lacking

When the president met with law enforcement officials this week, what made news was his flip comment that he might “destroy” a state senator’s career.

What got less attention was the nature of the proposal being discussed: A sheriff was complaining about a bill to limit the government’s ability to seize and keep the cars, homes and other property of criminal suspects who have not been convicted of a crime.

Critics call it policing for profit, and some police are clearly into it, effectively thwarting efforts to reform the practice. Currently, there are bills in the Washington Legislature to elevate the burden of proof for property seizures – one proposed by a pair of Democratic senators and one by a conservative House Republican.

Also, the Spokane City Council will likely vote soon on a proposal to limit how seizure funds are spent and managed by the police department. The department has had wide latitude to spend that money, and the proposed ordinance would put those funds under City Council control, like the rest of the city budget.

Under federal and state forfeiture laws, police may seize and keep property from criminal suspects even if they are not convicted of a crime – or, in some cases, even if they are not charged with a crime. Federal agents seized more than $5 billion worth of property in 2014, and that figure has expanded dramatically in recent decades.

That figure does not account for seizures under state law by local jurisdictions, but does include revenues shared by the feds and local agencies in joint operations. For example, Washington agencies contributed nearly $7 million to the Department of Justice forfeiture accounts in 2016 and received payments of $3.6 million. The Spokane Regional Drug Task Force received nearly $74,000 in 2016, according to the DOJ.

The Spokane Police Department escalated its seizure efforts starting in 2014. The department brought in more than $330,000 from seizures in 2014 and 2015, according to previous reporting. The increased pace of vehicle seizures left the department scrambling to find a place to keep them all before auction.

Supporters say the practice helps fight drug cartels and gives law enforcement an important tool in eliminating incentives for criminal activity. But it’s impossible to square the seizures with the fundamental values of American justice such as the presumption of innocence.

“Every year, police and prosecutors across the United States take hundreds of millions of dollars in cash, cars, homes and other property – regardless of the owners’ guilt or innocence,” reads the summary of “Policing for Profit,” a nationwide analysis of forfeiture practices by the libertarian Institute for Justice.

“Under civil forfeiture laws, the government can seize this property on the mere suspicion that it is connected to criminal activity. No charges or convictions are required. … Worst of all, most civil forfeiture laws give law enforcement agencies a powerful incentive to take property: a cut, or even all, of forfeiture proceeds.”

The institute reported that the federal government and 31 states, including Washington and Idaho, have laws allowing them to keep the proceeds from seizures based on “the preponderance of evidence.” Washington agencies can keep 90 percent of funds from forfeitures it shares with federal agencies. In Idaho, as in most states, it’s 100 percent.

Efforts to reform the system are taking root, if slowly. Several states have begun requiring a criminal conviction for an asset seizure, or have adopted the criminal standard of proof: beyond a reasonable doubt.

But reformers in state legislatures have run into stiff opposition, the report said. “A common refrain in the states where reform efforts have been unsuccessful is that resistance from law enforcement leaders killed the bills,” it said.

That was the resistance on display in the meeting with Trump earlier this week. A Texas sheriff complained about a proposal to require a conviction for seizures. It’s worth noting that while the current system of civil asset forfeiture is broadly unpopular in national polling, Trump’s soon-to-be attorney general, Jeff Sessions, has been an enthusiastic supporter.

There are two legislative proposals regarding seizures in Olympia. A bill proposed by Rep. David Taylor, a Sunnyside Republican, would require a criminal conviction for asset seizures. Legislation put forth in the Senate by Democrats Bob Hasegawa and Maralyn Chase would establish a standard of “clear, cogent and convincing” evidence for seizures, rather than a preponderance of evidence. Attempts to reach the lawmakers for comment were unsuccessful this week.

City councilman Breean Beggs’ proposal regarding seizure funds would codify changes the department implemented on its own in 2014, including the requirement for an annual audit. It also would require regular reports to the City Council, and give the council spending authority over those funds.

Proposed changes at the state and local level are important for improving a system that is short on due process and long on conflicts of interest. But piecemeal changes are not the ideal that critics have in mind.

“The best solution,” the Institute for Justice argues, “would be to simply abolish civil forfeiture.”