Kansas law enforcement agencies working to handcuff bill reforming civil asset forfeiture

TOPEKA — Cherokee County Sheriff David Groves rattled off a handful of reasons the Kansas Legislature shouldn’t move ahead with a bill requiring criminal conviction of a defendant before law enforcement agencies could seek forfeiture of cash, vehicles and other property seized from that person during an investigation.

Groves, testifying to a House committee on behalf of sheriff and police associations, said the legislation would unwisely make conviction a prerequisite for starting the forfeiture process, set a minimum value of $2,500 for seizure actions, guarantee legal counsel for indigent owners of confiscated property, raise the standard of proof for law enforcement agencies claiming property, require the value of seizures to be proportional to the crime, give property owners rights to a jury trial and to appeal decisions, deposit forfeited assets in the state treasury and block transfer of forfeiture cases to federal agencies.

“All of our communities across Kansas are dealing with illegal drug problems and too many criminals make a lot of money dealing illegal drugs to our citizens,” the sheriff said. “With current sentencing guidelines and the push to incarcerate violent criminals only, there is not a lot of punishment for drug dealers. One way to slow down their criminal behavior is to try to start the process of forfeiture on their ill-gotten means.”

Groves defended current Kansas law leading to the reported seizure by $21.3 million by Kansas law enforcement from July 2019 to December 2021. The forfeiture system has existed since 1994. Statewide statistics weren’t kept until a 2018 law mandated the Kansas Bureau of Investigation track the revenue stream for law enforcement agencies. Questions have been raised about accuracy of the KBI reports, but the documents show an average of $13,000 was seized daily in Kansas during the 30-month period in which reports have been published.

People ‘treated unfairly’

Several members of the House Judiciary Committee, but not all, expressed interest Wednesday in resetting the balance of power between law enforcement and targets of civil asset forfeiture. There was a sense House Bill 2380 could be a starting point for reform designed to level the scale of justice.

“Why should anyone have their assets forfeited without counsel prior to actually being convicted in a court of law?” said Rep. Stephen Owens, a Newton Republican.

Rep. Dan Goddard, R-Parsons, said he wanted the bill tabled by the House committee because the measure wasn’t “ready for prime time.”

“There have been people who have been treated unfairly,” said Wichita GOP Rep. Susan Humphries. “Do you not think it’s time we go ahead and do something?”

The bill was developed and supported by Americans for Prosperity-Kansas, Kansas Policy Institute and the KPI-affiliated Kansas Justice Institute.

Jon Lueth, deputy state director of Americans for Prosperity, said the Kansas civil asset forfeiture law enabled policing agencies to seize property based on an assertion it was used in a crime or derived from a crime. The law doesn’t require property owners be charged or convicted of a crime, he said. He also said it was wrong the person in jeopardy of losing property — not the government — carried the burden of proving the property wasn’t tied to criminal behavior.

“This flips the principles of ‘innocent until proven guilty’ on its head and creates negative financial incentives for law enforcement agencies,” Lueth said.

He said two-thirds of civil asset forfeitures in 2020 were for less than $2,000, which suggested many people caught in that system weren’t part of organized crime operations dealing drugs or generating piles of cash. For the majority of individuals who had assets seized, he said, the cost of a legal fight to recover property was greater than the value of what they lost. The small percentage of people successful in recovering improperly seized property had to wait an average of 419 days to get it back, he said.

“We’re not taking down criminal empires,” Lueth said. “We’re hurting Kansans.”

Buying a better plea deal

The Kansas Highway Patrol, Kansas Bureau of Investigation, Kansas Association of Police Chiefs, Kansas Sheriffs Association, Kansas Police Officers Association, the Overland Park, Topeka and Junction City police departments and the League of Kansas Municipalities registered opposition.

Robert Jacobs, executive officer of the KBI, said the agency’s 2021 report on law enforcement activities showed $6.6 million was seized by 377 agencies across the state. In this most recent report, 76% of owners or possessors of seized property were arrested and 82% of their cases were forwarded to prosecutors. In 16% of cases, the KBI said, law enforcement agencies returned at least a portion of property to owners.

He said current state law on civil asset forfeiture was a “balanced approach to address criminal activity while still protecting the rights of those indiviuals whose property has been seized and is subject to forfeiture.”

The House bill would diminish law enforcement’s ability to promote public safety, Jacobs said. He said it would jeopardize an important source of supplemental funding for law enforcement operations, investigations, training and the purchase of equipment. Under the bill, all revenue from law enforcement asset forfeiture proceedings would be deposited in the state’s general fund.

Sarah Washburn, an attorney with the Kansas Highway Patrol, said existing state law and court decisions contained constitutional protections for people subjected to civil asset forfeiture.

In remarks prepared for the House committee hearing, the KHP objected to a provision in the bill requiring the agency to hold seized property until the end of the relevant criminal process potentially leading to a conviction.

Washburn expressed alarm the bill could create a situation in which defendants were “allowed to buy a better deal” by using seized assets as a tool when negotiating plea bargains with prosecutors.

“My concern is it would potentially incentivize justice for profit,” she said.

Swing the pendulum

Samuel MacRoberts, litigation director of the Kansas Justice Institute, said current Kansas law incentivized profit-based policing while disregarding a property owner’s constitutional rights and facilitating governmental “abuse and overreach.”

He said the proposed reforms should inspire debate about whether the result would hamper law enforcement, help criminals get away with misconduct and make Kansas a destination for drug trafficking. The legislation wouldn’t prevent the government from seizing ill-gotten gains, he said, but it would make it nominally harder. The state’s prosecutors and law enforcement agencies ware well-trained and up to the task, he said.

“If forfeiture’s goal is to disrupt criminal enterprises and criminal activity, requiring a criminal conviction seems eminently reasonable,” MacRoberts said.

Mike O’Neal, a former Kansas House speaker, said in testimony on behalf of Kansas Policy Institute that he served as House Judiciary Committee chairman nearly 30 years ago when the state law on civil asset forfeiture was developed in Kansas.

“It was a time when we had really strong feelings about the need for law enforcement to have these tools,” O’Neal said. “It’s time to take a good, hard look at that again.”

He said the state law designed to help law enforcement crack down on large-scale criminal activity had devolved into mainly small-time seizures affecting individuals never been charged with a crime or charged with a crime where the value of cash and property seized exceeded severity of the alleged offense.

Many property owners — disproportionately minorities — defaulted on seizure actions due to lack of legal representation and an inability to afford an attorney to make their case, O’Neal said.

“We are here to make sure the innocent owners are protected and that we are really focusing our attention on the big crime syndicate-type actions,” O’Neal said. “It’s time to have that pendulum swing a little bit back.”