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.
