Over the past four years, Kansas law enforcement seized $23.1 million in cash and property allegedly linked to criminal activity. Most of the time, owners never tried to take it back.
Kansas lawmakers, uneasy with the lack of challenges and other aspects of the seizure process, will attempt to overhaul the state’s civil asset forfeiture laws in 2024. The controversial but widespread practice allows police to take property they believe is connected to a crime before anyone is charged or convicted.
More than 70% of the 1,884 seizure incidents between July 2019 and November 2023 resulted in uncontested or default forfeitures of property, according to official Kansas data. The high percentage concerns some lawmakers and advocates of reform, who suggest Kansans are giving up on reclaiming their property in the face of an arduous and expensive court process.
Half of seizures were valued under $3,116. At that amount, hiring an attorney to fight a forfeiture likely costs more than the value of the seized assets – leaving many individuals who have had their property taken in a bind.
“While I recognize that civil asset forfeiture is an important part of getting ill-gotten gains off the street, I believe that there is certainly room to improve the due process portion and ensure that we’re very calculated and specific on what assets are being seized,” said Rep. Stephen Owens, a Hesston Republican and chair of the Kansas House Corrections and Juvenile Justice Committee.
Law enforcement defends civil asset forfeiture as a crucial tool allowing officers to disrupt criminal enterprises, especially drug trafficking ones, but critics say it infringes on property rights and encourages profit-based policing because agencies sometimes use forfeiture proceeds to purchase vehicles and equipment.
In civil asset forfeiture, law enforcement must link property to a crime, showing it was used to help carry out a crime or represents the proceeds of criminal activity. But because it’s a civil matter, officers don’t have to prove a crime happened beyond a reasonable doubt the way prosecutors would have to at a criminal trial. Instead, they only have to show that a majority of the evidence ties the property to criminal activity.
“It’s too easy under current asset forfeiture laws in Kansas to take a person’s property. It’s too easy for the government to take a person’s cash,” Sam MacRoberts, litigation director and general counsel of the Kansas Justice Institute, said last month.
MacRoberts’ organization is the legal arm of the Kansas Policy Institute, a Wichita-based free market think tank.
“The way that the whole system is set up, in our view, is stacked in favor of the government,” he said.
Some local officials and agencies oppose any changes. In unsigned written testimony to lawmakers in December, the City of Overland Park said the current process already allows property owners to object to a forfeiture, “and the process should remain as is.”
“The City supports the use of asset forfeiture as an important component in reducing financial gains from criminal acts while providing due process via the civil courts,” the statement said.
Efforts to change the civil asset forfeiture process in Kansas have been underway for years. In 2016, state auditors found several law enforcement agencies lacked important controls for liquidating forfeited property. And in 2018, the Legislature approved enhanced reporting requirements surrounding forfeitures.
Barbara Reese’s story illustrates the halting nature of the changes. A group of lawmakers for years championed the story of the elderly Topeka woman, who had $15,000 taken from her by the Kansas Highway Patrol during a 1995 traffic stop that never resulted in criminal charges.
In 2018 the Legislature included an $11,833 payment to Reese in the state budget, but then-Gov. Jeff Colyer, a Republican, line-item vetoed the provision. He cited Reese’s multiple criminal convictions, which “casts doubt upon the veracity and soundness of the claim.” Lawmakers didn’t override the veto. Rep. John Alcala, a Topeka Democrat who advocated for compensation for Reese, said at some point she eventually received a payment.
Sen. David Haley, a Kansas City, Kansas, Democrat, said support for changing civil asset forfeiture laws is “not a Republican or Democratic issue. It’s not a conservative or progressive issue.”
“It’s one of equitable fairness, constitutional protections for personal property and the guidelines by which personal property should be taken by any agency under the deprivation of a right under color of law,” Haley said.
The renewed overhaul push heading into the 2024 legislative session comes after years of additional data have made clear the scope of civil asset forfeiture and the rarity of forfeiture challenges. Several states have implemented their own changes in recent years, including Illinois, which made it harder to forfeit property, and Nebraska, which abolished civil asset forfeiture in 2016.
Law enforcement has also come under greater scrutiny in Kansas, after a federal judge ruled this summer that the state Highway Patrol violated the civil rights of motorists and the raid by local police of the Marion County Record in August. A recent investigation by The Star found numerous instances of Fourth Amendment violations by Kansas police over the past decade.
Owens, who chaired a special legislative committee that studied civil asset forfeiture this year, will introduce a bill to implement recommendations by the committee. Among other ideas, the committee endorsed exempting some crimes from forfeiture to avoid targeting drug users and requiring the return of property if legal timelines aren’t met.
The recommendations also include requiring a judge to review seizures early in the forfeiture process and, in some instances, mandate law enforcement agencies pay the attorney’s fees of property owners if courts order the return of most or all of their property.
Several of the recommendations were first developed by a Kansas Judicial Council advisory panel of lawyers, law enforcement officers, legislators and others that met earlier in 2023. The council’s advisory work carries weight with lawmakers, making it more likely the recommendations will pass.
Senate President Ty Masterson, an Andover Republican, said in a statement that while civil asset forfeiture is a complicated topic, there appears to be a “bipartisan consensus towards reform with an emphasis on guardrails, fairness, and accountability.”
Law enforcement agencies in response have signaled they are willing to tolerate some changes but will aggressively oppose any effort to abolish civil asset forfeiture. Kansas Highway Patrol Col. Erik Smith, who leads the statewide agency, has said “on balance” he has little concern with embracing the recommendations developed by the council but that he also wants to keep civil asset forfeiture “alive and well” as a tool.
But Smith pushed back on a call by the council to impose a minimum forfeiture threshold – a change that would address concerns about how difficult it is for individuals who have had small amounts of property or cash seized to fight back by eliminating smaller forfeitures.
The council didn’t recommend a minimum amount, but discussions have centered on $3,000, the approximate median size of seizures.
“If those illicit proceeds are not forfeited to the government, where do they go?” Smith told lawmakers at a December hearing, adding that most proceeds are ultimately funneled to cartels and criminal syndicates.
A forfeiture threshold wasn’t one of the special committee’s recommendations, but will likely resurface if lawmakers debate a bill. Short of abolishing civil asset forfeiture, a threshold requirement would probably go furthest of any single change in curbing the practice.
“Setting that number – where you put it – will have a dramatic effect on the number of forfeitures that take place in the state of Kansas,” 8th Judicial District Chief Judge Ben Sexton said at the hearing.
The Star’s Katie Bernard contributed reporting