By Tim CarpenterKansas Reflector
TOPEKA – Cherokee County Sheriff David Groves has rattled off a handful of reasons why the Kansas Legislature shouldn’t move forward with a bill requiring a criminal conviction of a defendant before law enforcement can seek forfeiture of money, vehicles and other assets seized from that person during an investigation.
Groves, testifying before a House committee on behalf of the sheriff and police unions, said the legislation imprudently would make conviction a prerequisite for starting the forfeiture process, set a minimum value of $2,500 for the shares of seizure, would provide legal advice to indigent owners of confiscated property, raise the standard of proof for law enforcement agencies claiming property, require that the value of seizures be proportionate to the crime, grant property owners the right to a trial with jury and appeal decisions, deposit forfeited assets in the state treasury, and block the transfer of forfeiture cases to federal agencies.
“All of our communities throughout Kansas are dealing with illegal drug problems, and too many criminals are making big money selling illegal drugs to our citizens,” the sheriff said. “With current sentencing guidelines and the push to jail only violent offenders, there aren’t many punishments for drug dealers. One way to slow down their criminal behavior is to try to start the process of confiscating their illicit assets.”
Groves defended the current Kansas law that resulted in the seizure of $21.3 million by Kansas law enforcement officials from July 2019 to December 2021. The forfeiture system has been in existence since 1994. police. Questions have been raised about the accuracy of the KBI reports, but the documents show an average of $13,000 was seized daily in Kansas during the 30-month period the reports were released.
People “treated unfairly”
Several, but not all, members of the House Judiciary Committee expressed interest Wednesday in restoring the balance of power between law enforcement and civilian asset forfeiture targets. There was a sense that House Bill 2380 could be a starting point for reform designed to level the scale of justice.
“Why would anyone have their assets confiscated without a lawyer before actually being convicted in a court of law?” said Congressman Stephen Owens, a Republican from Newton.
Rep. Dan Goddard, R-Parsons, said he wanted the bill introduced in the House committee because the measure was not “ready for prime time.”
“There have been people who have been treated unfairly,” said Susan Humphries, a Wichita GOP representative. “Don’t you think it’s time to go ahead and do something about it?”
The bill was developed and supported by Americans for Prosperity-Kansas, the Kansas Policy Institute, and the KPI-affiliated Kansas Justice Institute.
Jon Lueth, deputy state director of Americans for Prosperity, said Kansas’ civil asset forfeiture law allowed police agencies to seize property based on a claim that it was used in a felony or derived from a felony. . The law doesn’t require homeowners to be charged or convicted of a crime, he said. He also said it was wrong that the person at risk of losing their property – not the government – should have the burden of proving that the property was not linked to criminal behavior.
“This overturns ‘innocent until proven guilty’ principles and creates negative financial incentives for law enforcement agencies,” Lueth said.
It said that two-thirds of civilian asset seizures in 2020 were for less than $2,000, suggesting that many people caught in that system weren’t part of organized crime operations dealing drugs or generating stacks of cash. For most people whose assets were seized, she said, the cost of a legal battle to recover the property was more than the value of what they lost. The small percentage of people who managed to recover wrongfully seized assets had to wait an average of 419 days to get them back, she said.
“We are not taking down criminal empires,” Lueth said. “We’re hurting Kansas.”
Buy a better plea deal
The Kansas Highway Patrol, the Kansas Bureau of Investigation, the Kansas Association of Police Chiefs, the Kansas Sheriffs Association, the Kansas Police Officers Association, the Overland Park, Topeka and Junction City Police Departments, and the League of Kansas Municipalities have filed an objection .
Robert Jacobs, executive officer of the KBI, said the agency’s 2021 report on law enforcement activities showed $6.6 million was seized from 377 agencies statewide. In this most recent report, 76% of owners or holders of seized property were arrested and 82% of their cases were referred to prosecutors. In 16% of cases, the KBI said, law enforcement officers returned at least part of the property to the owners.
He said the state’s current civil asset forfeiture law is a “balanced approach to addressing criminal activity while protecting the rights of those individuals whose property has been seized and is subject to forfeiture.”
The House bill would reduce the ability of law enforcement agencies to promote public safety, Jacobs said. He said it would jeopardize a major source of additional funding for law enforcement operations, investigations, training and equipment purchases. Under the bill, all revenues 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 individuals subject to civil asset forfeiture.
In prepared remarks for the House committee hearing, the KHP objected to a provision in the bill that requires the agency to withhold seized assets until the end of the relevant criminal trial which could lead to a conviction.
Washburn expressed concern that the bill could create a situation where defendants were “allowed to buy a better deal” by using the seized assets as a tool when negotiating plea deals with prosecutors.
“My concern is that it could boost justice for profit,” he said.
Swing the pendulum
Samuel MacRoberts, director of litigation at the Kansas Justice Institute, said current Kansas law incentivized profit-based policing by ignoring landlord constitutional rights and facilitating the government’s “abuse and abuse.”
He said the proposed reforms should inspire debate about whether the outcome could hamper law enforcement, help criminals get away with misconduct and make Kansas a destination for drug trafficking. The legislation would not prevent the government from seizing the ill-gotten gains, she said, but it would make it nominally more difficult. The state’s prosecutors and law enforcement agencies are well trained and up to the task, he said.
“If the goal of forfeiture is to disrupt criminal enterprises and criminal activity, seeking a criminal conviction seems entirely reasonable,” MacRoberts said.
Mike O’Neal, a former Kansas House speaker, said in testimony on behalf of the Kansas Policy Institute that he served as chairman of the House Judiciary Committee nearly 30 years ago when the state’s asset forfeiture law was developed in Kansas civilians.
“It was a time where we had very strong feelings about the need for law enforcement to have these tools,” O’Neal said. “Time to take a good look at this again.”
He said state law designed to help law enforcement crack down on large-scale criminal activity has mostly devolved into short-lived seizures affecting people who have never been charged with a felony or charged with a felony in which the value of the money and property seized exceeded the seriousness of the alleged offence.
Many homeowners — disproportionately minorities — have defaulted on foreclosure actions due to a lack of legal representation and an inability to afford a lawyer to make their case, O’Neal said.
“We’re here to make sure innocent homeowners are protected and that we’re really focusing our attention on the actions of the big crime syndicate,” O’Neal said. “Time for the pendulum to swing back a bit.”
