A special committee on civil asset forfeiture — a police tool that allows law enforcement agencies to seize cash and property they suspect was used in a crime — recommended a handful changes to Kansas state law.
A judicial committee with members comprised of elected officials, law enforcement, lawyers and judges has explored the topic since June.
Judge Ben Sexton, who chaired the committee, said the policy recommendations are born from the diverse perspectives offered in the judicial council.
“This would be an easy process to manipulate. All you would have to do is instead of inviting three law enforcement or three people from the other side, is to bring enough people to give you the majority to write the report. That’s not the way we’ve done it here,” Sexton said. “While I can’t give you a unanimous report, or even a vast majority report on the number of issues that continue. What I can give you is a very real representation of where the stakeholders are and what their positions are.”
Sexton said law enforcement agencies in Kansas collected more than $23 million between July 1, 2019, and Dec. 31, 2022. About $4.1 million of cash and property collected was eventually returned to the original owners, and agencies transferred $5.7 million to the federal government.
Committee recommends 3 changes to Kansas civil asset forfeiture law
The legislative committee recommended deleting certain crimes, particularly simple possession, from its list of ones subject to civil asset forfeiture.
Sexton said the use of forfeiture to disrupt the drug market should be targeted at manufacturers and distributors rather than users.
“The user is an addict, and when you take a user and you forfeit $500 from a user, he’s still an addict and now he doesn’t have his money,” Sexton said. “What’s that guy going to do? He’s got to feed the disease and he’s going to go out and create more crime.”
The committee also agreed to end what are often referred to as roadside waivers. These essentially allow people to waive their right to contest asset seizures by an arresting officer, often as a condition to stop being detained.
Another approved recommendation required law enforcement to return property if fails to meet timelines that could delay a case. However, most seized property is not contested and returned to who it was confiscated from.
Law enforcement officials said this is often because those who have assets seized are guilty, but others noted that the attorney fees contesting a seizure often exceed the value of confiscated cash and property.
Partially addressing this is another legislative recommendation of proportionality hearings, which a claimant can request in a district court after having property taken. The plaintiff’s attorney would be tasked with establishing the seizure is not proportional to the seriousness of the offense.
Currently, law enforcement officers can only seize an asset if the “preponderance of evidence” suggest property is used in a crime. This standard means that evidence points to it being likely that the property was used in crime but is a lower threshold than what is required for a criminal conviction, which requires evidence “beyond a reasonable doubt.”
The legislative committee recommended that the burden of proof be changed to “clear and convincing” for the agency seizing the property, which is a higher standard than preponderance of evident but less than what’s required for a conviction.
Some participants disagree on how police use civil asset forfeiture
Law enforcement agencies that testified at the committee said they were OK with most of the reforms approved by the legislative committee but spoke against the narrative that police abuse the civil asset forfeiture for profit.
“A forfeiture proceeding doesn’t even begin until the government proves by preponderance of the evidence that an asset, whether it’s cash, a vehicle or gun or any other property, the government has to prove that the asset is somehow tied to illegal activity,” said Kansas Bureau of Investigations director Tony Mattivi.
Mattivi also criticized House Bill 2380, a piece of legislation that would have changed civil asset forfeiture to a larger extent than what the legislative committee recommended. The Kansas Justice Institute, a law firm that litigates and advocates against what it views as government overreach, drafted that bill and had members on the judicial committee.
KJI’s litigation director Sam MacRoberts said the process is biased in favor of the government regarding the standard of evidence and the complicated process of contesting seizures.
“In short, 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,” MacRoberts told the legislative committee. “The way that the whole system is set up, in our view, is stacked in favor of the government. What initiated the initial seizure is really just a probable cause determination.”
Americans for Prosperity, a libertarian political advocacy group founded by David and Charles Koch, and the National Coalition for a Civil Right to Council also offered testimony in support of civil asset forfeiture reform.
Civil asset forfeiture recommendations could guide legislative policies
The recommendations could guide the policies that come before the legislature in the upcoming session. HB 2380 is still active and could get another hearing, but it’s not aligned with the committee’s recommendations on a handful of provisions.
The committee is also asking for further discussion when legislators consider future reform in a standing committee. It recommended further discussion on the transfer of seized assets to the federal government and to consider some aspects of HB2380 like the right to legal representation and a jury trial in civil asset forfeiture.
This article originally appeared on Topeka Capital-Journal: Kansas panel adopts recommendations for civil asset forfeiture changes