TOPEKA — Kansas chief deputy attorney general Daniel Burrows defended a hard-fought attempt to overhaul the state’s civil asset forfeiture law and urged rival factions to avoid the temptation to march to their castles, close the drawbridges and shoot arrows at each other rather than agree to support meaningful reform.
He said Attorney General Kris Kobach, who oversees the Kansas Bureau of Investigation as well as a team of state prosecutors, committed to a mission of protecting citizens’ rights and the ideals of limited, constitutional government. In that vein, he said the attorney general had during the past year stopped thousands of dollars in unwarranted forfeiture claims from moving forward and maneuvered behind the scenes to develop a compromise acceptable to civil libertarians, defense attorneys, law enforcement agencies, prosecutors and other interested parties.
“To be clear, the attorney general strongly supports asset forfeiture reform. He recognizes that while forfeiture is an important tool in the law enforcement toolkit, it is easily abused and requires vigorous oversight,” Burrows said.
He said the challenge was to craft a durable compromise that delivered consequential change in state law but didn’t make asset forfeiture practically impossible. To that end, he said, the attorney general endorsed House Bill 2606 rather than Senate Bill 458.
The House and Senate introduced comparable asset forfeiture bills under consideration by their respective judiciary committees. Both bills would remove the crime of drug possession from the list of offenses subject to forfeiture, require a judge to approve a probable cause affidavit before a forfeiture case could proceed and allow defendants who recovered more than half of their property to recoup attorney’s fees and litigation costs.
Senate Bill 458 diverged from House Bill 2026, however, by including a provision granting defendants the right to a jury trial and a section forbidding nearly 400 law enforcement agencies in Kansas from transferring their asset seizure cases to the federal courts. If handled by the federal government, the local law enforcement agency in Kansas could retain about 80% of the financial seizure but not deal with costs of that process.
Opposition to Senate plan
Tony Mattivi, director of the KBI and a former prosecutor with the U.S. Department of Justice, said he preferred the House’s option because jury trials were impractical and the opportunity to pass cases to the Federal Bureau of Investigation and U.S. Department of Justice relieved local law enforcement agencies of the financial burden of forfeiture actions grounded in the quest to strip criminals of ill-gotten gains.
“Asset forfeiture is a useful and effective tool for removing the financial incentive and the means of trafficking narcotics and people,” Mattivi told the Senate Judiciary Committee. “Most of the changes that Senate Bill 458 makes to the act do an excellent job of balancing law enforcement’s need for such a tool and the desire of all of us to protect the due process rights of any potential claimants.”
He said elements of the Senate’s version could “tip the balance” in favor of defendants and “conceivably do more harm than good.”
Col. Erik Smith, superintendent of the Kansas Highway Patrol, said he was neutral on the House bill and opposed to the Senate option. He said he agreed with the KBI and attorney general that it would be a mistake to prohibit federal prosecutors from taking charge of Kansas forfeiture cases.
He also objected to a provision in the House and Senate bills that raised the state’s burden of proof in asset forfeiture cases from a low “preponderance” of evidence to the more challenging “clear and convincing” standard. He argued it would make recovery of criminal profits more difficult.
“The clear and convincing evidence standard has historically been reserved for more serious, non-property conflicts such as a loss of parental rights or an involuntary mental commitment,” Smith said. “The burden of proof in Kansas property disputes is, and has been, a preponderance of the evidence for all parties.”
On this point, the attorney general disagreed with KHP. The attorney general and others have been working for months to build support for the higher evidentiary standard in Kansas forfeiture cases.
Since the 2019 fiscal year, KHP has received $6 million in revenue from civil asset forfeiture actions in Kansas.
