Law enforcement offers defense of current system; skeptics say its ripe for abuse
TOPEKA — Members of the Kansas Legislature on a bipartisan interim committee agreed to recommend reform of the system relied upon by law enforcement agencies to seize millions of dollars annually in cash and property from people suspected, but not convicted, of crimes.
The state’s civil asset forfeiture law has been denounced as a fundamentally unfair opportunity for government to take and keep a person’s property without proving the individual did anything wrong. Organizations calling for change believe Kansas statute lacks sufficient due process for the accused and created an incentive, or profit motive, for law enforcement to pursue seizures.
Dickinson County District Court Judge Ben Sexton, who chaired the Kansas Judicial Council’s latest evaluation of civil asset forfeiture in Kansas, told legislators Wednesday that law enforcement agencies fiercely defend the tool for disrupting criminal activity.
“There are also many people who fall somewhere in between these two positions,” Sexton said. “Civil asset forfeiture remains a contentious issue, not only in Kansas, but across the nation.”
Rep. Stephen Owens, a Hesston Republican, led the joint legislative committee through a process that resulted in forwarding eight reform ideas to the 2024 Legislature. Four of the proposals were recommended by the Kansas Judicial Council’s advisory committee.
Waiver of rights?
The list of reform recommendations included deletion of certain crimes from offenses that could trigger civil asset forfeiture. Specifically, the legislative committee proposed prohibiting asset forfeiture involving simple possession of controlled substances. Instead of punishing drug users or addicts, lawmakers said, Kansas law should be focused on criminal enterprises engaged in manufacturing and distributing illegal drugs.
Legislators on the committee agreed state law should be amended to prohibit law enforcement from coercing people to sign a “pre-forfeiture” waiver to property targeted by deputies, officers or troopers. The current waiver enabled a law enforcement officer to tell a person stopped on the side of the road that he or she could go free by signing a document saying seized cash was not his or hers.
In addition, legislators endorsed a recommendation to allow the person from whom property was seized to petition the district court at any time for a hearing to determine whether the confiscation was constitutionally excessive. Under the change, a law enforcement agency’s attorney would have to establish the seizure was “proportional” to seriousness of the offense giving rise to forfeiture action.
The consensus of the legislative committee was Kansas law should require early probable cause hearings in civil seizure cases. The lawmakers also agreed there needed to be an automatic stay in the discovery process of civil forfeiture cases during related criminal proceedings alleging the same conduct, because the parallel cases could lead to violation of property owners’ constitutional rights.
The legislators recommended Kansas raise the burden of proof in civil asset forfeiture cases from the lowest standard of “preponderance of evidence” to the next higher standard of “clear and convincing.” The most stringent standard, which applies to criminal cases, is “beyond a reasonable doubt.”
The interim legislative committee said statute ought to be adjusted to require assets to be returned to the owner when the seizing law enforcement agency failed to comply with procedural deadlines. The change would address intentional delays in court cases involving seizures.
Finally, legislators recommended a change in Kansas law establishing that the seizing law enforcement agency could be ordered by the district court to pay a claimant’s defense attorney fees.
The $23 million question
From July 2019 to November 2023, the Kansas Judicial Council said, $23.1 million in cash and property was seized in Kansas by law enforcement agencies through the initiation of 2,000 civil asset forfeiture cases. The Kansas Judicial Council said $5.7 million of the total was transferred to the federal government under revenue sharing agreements.
Of the remaining $17.4 million, one-fourth of that amount taken by Kansas law enforcement agencies was eventually returned to owners through court proceedings. It took an average of 249 days for those people to get their property back.
That left $13.9 million to be spent by law enforcement agencies in Kansas — $10.8 million in cash and $3.1 million in property. The Kansas Judicial Council said numbers on forfeitures and returns were influenced by negotiated settlements.
Of concern to critics of the seizure law was that in 1,330 of 1,884 cases handled in district court the individuals suspected of criminal conduct didn’t contest the asset seizure. The median value of seizures during this period was $3,116, which meant a person could easily spend more on an attorney to challenge the seizure than the value of property or cash taken by law enforcement.
The interim legislative committee didn’t recommend establishment of thresholds, perhaps $1,000 for cash and $2,500 for property, under which law enforcement could seek forfeiture. Legislators also deferred to the full Legislature questions about right to counsel and right to a jury trial in seizure cases and how assets claimed by law enforcement agencies could be spent.
Pressure for change
Debate about Kansas’ civil asset forfeiture law has percolated for years, but law enforcement agencies and get-tough-on-crime politicians have thwarted substantive reform. The GOP-led Legislature, at this moment, has faced demands for change by conservative organizations, including the influential Americans for Prosperity and the Kansas Justice Institute.
Sam MacRoberts, litigation director and general counsel at Kansas Justice Institute, said Kansas’ civil asset forfeiture statute was ripe for abuse and incentivized law enforcement agencies to take property from innocent people. He said criminals shouldn’t profit from their crimes, but it was reasonable to require a criminal conviction before taking someone’s property.
“First, the law incentivizes profit-based policing,” he said. “Second, the law disregards property rights and due process considerations. Third, it facilitates government overreach and abuse. Fourth, it doesn’t afford a jury trial.”
Greg Glod, senior fellow for public safety and criminal justice with Americans for Prosperity, said the forfeiture philosophy of separating people who broke the law from property used to commit crimes was supported by AFP.
However, he said, current law in Kansas didn’t afford necessary due process protections for property owners presumed to be innocent until proven guilty.
“Protections afforded citizens in a criminal proceeding are not provided in civil forfeitures,” Glod said. “This includes a low burden of proof. Innocent property owners must prove their property’s innocence, rather than the government. This creates an unduly burdensome and expensive process for innocent owners to get their property back from the government.”
KBI, KHP perspective
KBI director Tony Mattivi and Kansas Highway Patrol Col. Erik Smith, who both testified for the interim legislative committee, said they couldn’t support the civil asset reform bill introduced in the House during the 2023 legislative session.
They said that bill would improperly limit law enforcement’s ability to use asset seizure as a tool to fight crime. Both expressed concern about potential reforms explored by the Kansas Judicial Council.
“At a time when Mexican drug cartels are purposefully flooding our state with deadly fentanyl, and Kansans, especially Kansas kids, are dying by the dozens from fentanyl overdoses, now is not the time to eliminate or limit one of law enforcement’s most effective tools in battling these profit-driven criminal organizations,” Mattivi said.
Mattivi denounced the narrative propagated by special-interest groups that Kansas asset forfeiture laws were improperly used to strong-arm innocent property owners.
Smith said KHP and KBI were in lockstep about retaining civil asset forfeiture authority and making public safety the priority. He said the perception Kansas law enforcement abused the system was not supported by data.
He opposed a proposal that would end civil asset seizure of property valued at less than $3,000. He said it would be folly to establish a financial floor on seizures because it would mean profit from sale of 100 fentanyl laced counterfeit pills valued at $30 each would be exempt.
It would be a mistake to return illicit assets — even modest amounts — tied to criminal enterprises in Kansas to the offenders, the KHP superintendent said.
“Drawing on my 21 years of experience at the Drug Enforcement Administration,” Smith said, “I can tell you that a majority of these proceeds are ultimately funneled to three entities: The Sinaloa Cartel, the Cartel Jalisco New Generation or the Chinese Syndicate.”
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