SB 5935, HB 1995 PROPOSE CHANGES IN SEIZURE RULES

I believe being your elected Sheriff requires due diligence on my part
whenever our Legislature meets and goes through the process of creating new
laws or changing existing laws. We all have to live by the laws our
Legislature writes and your deputies and police officers have to operate by
these laws. Many sheriffs and police executives testify every legislative
session. We offer our opinions regarding the impact (positive or negative)
of a variety of proposed new laws. I have been going to Olympia almost
weekly to testify.

In my opinion several bills being proposed for adoption as law are very
poor and will adversely affect your Sheriff's offices and police departments.

Two bills, Senate Bill 5935 and House Bill 1995, have been "dropped"
(proposed) by some of our local legislators and backed by the American
Civil Liberties Union. These bills are proposing dramatic changes to our
civil asset seizure rules.

Most items seized under current law are seized at the scene of crimes as
"facilitation" seizures.

These items are directly related to a specific drug transaction, like the
car a drug dealer was driving when he met an undercover police officer and
sold him drugs.

We use civil asset forfeiture to take away drug dealers' "booty" (their
profits) and use these funds to equip drug units and pay for drug
investigations around this state.

In essence, we use money and assets made from the sale of drugs to pursue
even more drug-related criminals.

What better way to nail a criminal than with money from his own illegal
industry!

In addition, this approach saves taxpayer dollars.

The bills being reviewed this session, which are identical and apparently
originate at the same source, affect two separate statutes; -- RCW (revised
Code of Washington) 10.105.010 which is commonly known at the "Non-Drug
Felony Seizure Statute" and RCW 69.50.505 which is the well-known drug
seizure statute.

RCW 10.105 is not a statute that is commonly used.

The proposed bills [would] change the current statutes by first changing
the burden of proof from the current standard "preponderance of the
evidence" which is used in many other types of civil proceedings to a
"clear and convincing evidence" standard (section 1 paragraph 1). This
means that assets will not be available for seizure until an offender is
criminally convicted. During the time that passes before a conviction is
established, the drug offender will not only have the time, but also the
opportunity to "pass on" their assets to a supportive friend or family member.

I believe law enforcement has an obligation to the citizens to possess a
"higher than average" moral standard, but to be held to a "higher than
everyone else" legal standard - especially in this scenario - is really
stretching the rules.

Section 1, paragraph 1, of these bills also states "the value of the
property forfeited under the provisions of this subsection shall be
substantially proportional to the specific conduct for which the owner of
the property has been convicted." This particular inclusion causes serious
problems. In the case of a fraud investigation, a suspect might swindle his
victims out of $100,000 and buy real property with the proceeds or invest
the money.

During the lengthy investigation, the suspect's equity might rise to
$150,000. The property is seized and forfeited but what happens to the
$50,000 equity?

We know the victim(s) gets his loss returned to him, but will the court now
have to return the $50,000 in asset growth to the offender? This may seem
preposterous, but if these bills pass, the courts will be conducting
hearings on the "substantially proportional" value of the crime. Another
problem with these bills can be highlighted in the following scenario:

A drug dealer drives to a meeting in his beautiful $25,000 car (purchased
with drug money). His transaction includes delivering cocaine with a Street
value of $1,000. During his arrest, police seize his $25,000 car. Under
this new legislation, "proportional value" will need to be determined. Will
the "proportional value" be determined to be $1,000, the street value of
the cocaine? With a lot of argument by defense attorneys, probably.

The fact is, it will only take a poor decision in one case to deter the
seizure of any property.

Section 1, subsection 5 (b & c), go to the heart of what this proposed
legislation is all about.

These subsections state that law enforcement will only realize a maximum of
25 percent of any forfeiture proceeds to pay the expenses of any
investigation or seizure costs.

All other funds must be used exclusively for drug treatment.

You must understand that most local law enforcement agencies in the state
of Washington fund their narcotics investigations with funds from asset
forfeiture. Many agencies in this state have only enough funds to assign
one to five officers to their drug unit, a far cry from what is needed.

Asset forfeiture funds also supply law-enforcement agencies with what is
called their "buy fund" for drug purchases.

If our funds from asset forfeiture are reduced and constricted as defined
by these bills, we will be further challenged to fund drug investigations.
Limiting our ability to conduct drug investigations will in turn limit our
ability to get habitual users into custody and correspondingly into the
very drug treatment programs that the legislators are working to support.

A good example of this is my own brother.

I love him very much, but he has had a problem with drugs which has
devastated our family.

Asset forfeiture money was used to fund the "buy money" which led to my
brother's arrest.

This arrest forced my brother to face his problem, which resulted in a
prison sentence.

I believe treatment options, which legislators want to fund, would have
been a better choice for my brother.

I'm confident there are many others in prison who would benefit from this
option, as well. However, people like my brother will not likely seek out
treatment of their own volition.

In most cases, law enforcement will be required to intervene via a drug
arrest to lead users onto the road to recovery.

This can only happen if our drug investigations units are appropriately funded.

Currently, we use the federal courts on many of our larger drug
investigations simply because of the scope and nature of the beast (the
drug dealer). Usually these federal prosecutions result in large asset
forfeiture cases and significantly greater monetary awards being given to
local law enforcement. Section 6 of the proposed bills states that all
money received from federal agencies as a result of a drug investigation
will go towards treatment programs; nothing will go to support local law
enforcement agencies.

Section 6 will eliminate a huge amount of the monies we use at the local
level to go after the larger drug dealers in this county. The end result
will likely be the removal of many local law enforcement officers from long
term, expensive investigations, which are funded by such asset sharing.

Section 1, subsection 8, states that a state committee, appointed by the
governor, will review all asset forfeiture proceedings to ensure fairness.
Who is this oversight committee going to be? How are they going to be
financed? It sounds like more bureaucracy to me. If these bills are made
into law, we will have a new state committee, paid to operate with your tax
dollars, since they don't qualify to receive asset seizure funds.

This committee will oversee the civil and criminal court process to ensure
things are conducted fairly.

I really see a problem with the administrative and legislative branches of
government overseeing the decisions of the judicial branch.

By trying to enact these bills, the ACLU and some of our legislators are
saying there is no due process for seizure and forfeiture. As it now
exists, first you need probable cause to seize.

Secondly, you need a judicial review to forfeit. People are given 45 to 90
days to respond and have a hearing. The checks and balances are already
built into the system.

In conclusion, I believe these bills miss the mark and, if enacted, will be
poor law. Drug dealers will simply "divest their booty" before conviction
and any law-maker who believes otherwise is not living in the real world.
The intent of the current asset forfeiture law is to hurt drug dealers in
their pocketbooks. The proposed law hurts law enforcement in the drug
investigation pocketbook. As it is now, your Snohomish County Sheriff's
Office is not funded properly and these two bills will make things even worse.