Washington State Raises Burden of Proof for Civil Asset Forfeiture

A significant debate surrounding civil asset forfeiture continues to unfold across the United States, with critics, including former Congressman Justin Amash, labeling the practice as "legalized theft." Amash recently stated on social media, > "Carrying U.S. currency isn’t a crime, but it’s possible we’ll steal it from you, and then we’ll flip the burden so that you have to prove it wasn’t connected to criminality." He called for an end to the practice and urged upholding the Fourth and Fifth Amendments.

Civil asset forfeiture is a legal process that permits law enforcement agencies to seize money or property suspected of being connected to criminal activity, often without requiring a criminal conviction of the owner. Historically intended to target organized crime, the practice has drawn criticism for its low burden of proof, which often places the onus on property owners to demonstrate the legitimate origin of their assets. This mechanism allows agencies to retain or sell seized property, creating a financial incentive for seizures.

The practice raises considerable constitutional concerns, particularly regarding the Fourth Amendment's protection against unreasonable searches and seizures and the Fifth Amendment's due process clause. Critics argue that seizing property without a conviction and then requiring the owner to prove innocence effectively reverses fundamental legal principles. The ACLU of Kansas has described civil asset forfeiture as "legalized robbery by law enforcement," highlighting that individuals do not need to be arrested, charged, or convicted for their property to be seized.

In response to these concerns, some jurisdictions are implementing reforms. Washington State, for instance, recently passed House Bill 1440, effective January 1, 2026, which significantly alters its civil asset forfeiture laws. The new legislation elevates the burden of proof for law enforcement agencies from a "preponderance of the evidence" to "clear, cogent, and convincing evidence," a higher standard that requires approximately 75% certainty.

HB 1440 also shifts the responsibility to seizing agencies to prove the property owner's knowledge and consent to any unlawful acts supporting forfeiture. Additionally, the bill extends hearing request deadlines for property owners and consolidates various forfeiture procedures for greater consistency. These changes represent a move toward increased constitutional security and protections for individuals whose property is subject to seizure.