TOPEKA, Kan. (February 15, 2023) – Two bills introduced in the Kansas House would reform asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most cases. But the legislation leaves a loophole open that would allow police to continue using asset forfeiture by working with the feds.
The House Judiciary Committee introduced House Bill 2380 (HB2380) on February 9 and House Bill 2396 (HB2396) the next day. The bills differ slightly in their language but would have the same effect. The legislation would require a criminal conviction before prosecutors can proceed with the asset forfeiture process in most cases. It would also require proof beyond a reasonable doubt that the property is subject to forfeiture.
The proposed law would also address the “policing for profit” motive inherent in the confiscation system, by requiring that all proceeds of the confiscation be transferred to the general fund after the payment of expenses incurred during the confiscation process. Under current law, Kansas law enforcement agencies can withhold up to 100 percent of the forfeiture proceeds.
According to the Institute for Justice, “Kansas has some of the worst civil forfeiture laws in the country.”
While passage of both bills would significantly reform Kansas’s asset forfeiture process, both fail to fill a loophole that allows state and local police to circumvent stricter state civil asset forfeiture laws in the vast majority of situations. This is especially important in light of a 2017 policy directive issued by then Attorney General Jeff Sessions for the Department of Justice (DOJ) that remains in effect today. Without abandoning the federal asset forfeiture program, police will have an easy way around these important reforms.
Today, the House Judiciary Committee held a hearing on HB2380, an important first step in the legislative process.
While some people believe the Supreme Court “has ended asset forfeiture, its opinion in Timbs versus Indiana finished nothing. Unless further measures are taken, the confiscation of civil assets remains. Furthermore, as noted by law professor Ilya Somin, the Court left an important issue unresolved. What exactly counts as “excessive” in the context of civil forfeiture?
“This is likely to be a highly contentious issue in the lower federal courts over the next few years. The final effect of today’s decision largely depends on how this issue is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, Timbs’ impact could be relatively marginal.”
Going forward, opponents of civil asset forfeiture could wait and see how the lower federal courts deal with the issue “over the next few years,” or they can do what a number of states have already taken steps to do, end the practice at state level and also waive the federal equitable sharing program.
A federal program known as “Equitable Sharing” allows prosecutors to circumvent stricter state asset forfeiture laws by passing cases to the federal government through a process known as adoption. Through this process, the state or local police hand the forfeiture case over to the feds to proceed even though there was initially no federal involvement in the investigation and seizure. State and local police can also tap into a fair share by working with the feds on joint task forces. Approximately 85% of fair share cases stem from these joint task forces, but a significant number also start with adoption.
Through this program, law enforcement agencies often circumvent stricter state forfeiture laws by arguing that cases are federal in nature. Under these agreements, state officials simply turn cases over to a federal agency, participate in the case, and then receive up to 80% of the proceeds. However, when states simply withdraw from participation, the federal directive loses its impact.
California has addressed this situation. The state has some of the strongest statewide restrictions on civilian asset forfeiture in the country, but state and local police were bypassing the state process by turning cases over to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement agencies were passing many cases to the feds and collecting the loot. The state closed the loophole in 2016.
Neither HB2380 nor HB2396 address this loophole. Without amendments, Kansas law enforcement would continue to have a forfeiture process even if the state process is eliminated.
The Kansas House should amend the current legislation with the following language to plug the loophole and exclude the state from equitable sharing.
A state or local law enforcement agency may not transfer or offer for adoption property seized under state law to a federal agency for the purpose of forfeiture under 18 US Code Chapter 46 or other federal laws.
A joint task force of a law enforcement agency and a federal agency transfers seized assets to the judicial authority for forfeiture under this chapter.
The Joint Task Force may transfer seized property to the United States Department of Justice for forfeiture under federal law if the seized property includes U.S. currency in excess of $100,000.
A law enforcement agency is prohibited from accepting payments or distributions of any kind from the federal government if the federal government requires that seized property that includes U.S. currency of less than $100,000 be transferred to the federal government for forfeiture under the Act federal
Very few cases cross the $100,000 threshold.
As the Tenth Amendment Center previously reported, the federal government has entered the California asset forfeiture debate. The feds clearly want the policy to continue.
We can only guess. But perhaps the feds recognize that paying state and local law enforcement agencies directly in cash to handle their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to pursue its unconstitutional “war on drugs” without state and local assistance. The “fair share” asset forfeiture provides a pipeline that the feds use to incentivize state and local police to serve as the de facto weapons of the federal government by funneling billions of dollars into their budgets.
HB2380 and HB2396 have both been referred to the House Judiciary Committee. Bills will need to be approved by the committee by majority vote before proceeding in the legislative process.