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Research & Commentary: Kansas Civil Asset Forfeiture Laws in Need of Reform

September 13, 2016

In this Research & Commentary, Matthew Glans examines civil asset forfeiture laws and argues assets should be seized only for criminal reasons.

The laws governing the seizure of assets by law enforcement agencies in Kansas are in dire need of reform. Civil asset forfeiture, also known as civil judicial forfeiture, is a controversial legal process through which law enforcement agencies take personal assets from individuals or groups merely suspected of a crime or illegal activity. Three states have essentially abolished the practice of asset forfeiture – Nebraska, New Mexico, and North Carolina – and more than a dozen other states have made significant forfeiture reforms.

A recent legislative audit conducted by the Legislative Post Audit Committee found the Kansas’ vague state forfeiture laws allowed law enforcement agencies to use forfeiture proceeds for inappropriate expenses, such as salaries and other operating expenses. Analysts at the nonpartisan Institute for Justice (IJ) have given the State of Kansas’ civil asset forfeiture laws a grade of D-, one of the lowest grades in the country.

The standard of proof required for seizure differs from state to state. In Kansas, the government is typically required to demonstrate by a preponderance of the evidence the property to be seized is related to a previously committed crime. After property is seized, Kansas law enforcement agencies are allowed to keep 100 percent of forfeiture proceeds.

The Legislative Post Audit Committee audit found the vague language regarding the use of proceeds for “special, additional law enforcement purposes” in Kansas weakens any limits and heightens the chance law enforcement agencies could become dependent on these funds.

The Associated Press (AP) found several examples of significant amounts of seized funds being used by Kansas law enforcement agencies. According to AP, “The Kansas Highway Patrol last year [2015] deposited $842,041 into its forfeiture fund, which had a year-end balance of more than $2 million. Other forfeiture funds deposited last year by agencies included: Sedgwick County Sheriff’s Office, $76,469; Salina Police Department, $23,072; Coffeyville Police Department, $9,363; Kansas Bureau of Investigation, $6,052; and Iola Police Department, $4,104.”

One glaring problem with Kansas’ civil asset forfeiture program is a lack of transparency. Kansas currently pools all its forfeiture proceeds into a special law enforcement trust fund maintained by the local or state government responsible for its budget; the agency must then file reports to that budget authority. While this may seem transparent, IJ argues these forms are not standardized or easily accessible to the public and would require submitting a Kansas Open Records Act request to every law enforcement agency or budgetary authority in the state to properly monitor forfeiture activity.

Scott Bullock, senior attorney at the Institute for Justice, advocates eliminating forfeitures altogether except in cases of maritime and customs law. He also offers five recommendations for states not willing to halt all forfeitures: place seized revenues in neutral funds, increase the standard of proof for seizure to require “clear and convincing evidence” of a crime, move the burden of proof to the government, make the tracking of seized assets more transparent, and eliminate “equitable sharing” arrangements, which allow law enforcement agencies to evade state restrictions on the use of forfeited funds.

Proponents of forfeiture argue it allows law enforcement agencies to use seized assets toward their enforcement efforts, transforming property illicitly gained by criminals into resources to be used for public benefit, but critics of the process note it gives law enforcement agencies economic incentives to seize property, corrupting them and penalizing innocent property owners.

Assets should be seized only for criminal reasons, and law enforcement should not have incentives to seize any more property than is necessary and justified.

The following documents provide additional information about civil asset forfeiture.
 

Policing for Profit: The Abuse of Civil Asset Forfeiture https://www.heartland.org/publications-resources/publications/policing-for-profit-the-abuse-of-civil-asset-forfeiture?source=policybot
Marian Williams, Jefferson Holcomb, Tomislav Kovandzic, and Scott Bullock argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent,” they write.

Civil Asset Forfeiture, Equitable Sharing, and Policing for Profit in the United States
https://www.heartland.org/publications-resources/publications/civil-asset-forfeiture-equitable-sharing-and-policing-for-profit-in-the-united-states?source=policybot
Jefferson E. Holcomb and Marian R. Williams, professors in the department of Government and Justice Studies at Appalachian State University, and Tomislav V. Kovandzic, a professor in the University of Texas–Dallas School of Economic, Political, and Policy Studies, identify the effects of civil asset forfeiture reform on law enforcement activities. They write, “There is substantial anecdotal evidence that law enforcement [agencies] utilize a variety of tactics to generate the greatest revenue from their forfeiture operations,” a hypothesis their analysis of U.S. Department of Justice statistics confirms. 

Seize First, Question Later: The IRS and Civil Forfeiture https://www.heartland.org/publications-resources/publications/seize-first-question-later-the-irs-and-civil-forfeiture?source=policybot
Institute for Justice researcher Dick M. Carpenter II and attorney Larry Salzman examine the use and abuse of civil asset forfeiture laws by the Internal Revenue Service. “Federal civil forfeiture laws give the Internal Revenue Service the power to clean out bank accounts without charging their owners with any crime,” they write.

Civil Asset Forfeiture: 7 Things You Should Know
http://www.heritage.org/research/reports/2014/03/civil-asset-forfeiture-7-things-you-should-know
This Heritage Foundation Factsheet outlines several important things people should know about civil asset forfeiture. 

Civil Asset Forfeiture Reform Goes Mainstream https://www.heartland.org/publications-resources/publications/civil-asset-forfeiture-reform-goes-mainstream?source=policybot
Jordan Richardson of The Heritage Foundation discusses how the growing number of civil asset forfeiture abuses has drawn the attention of news media and suggests the increased attention may lead to real reform.

The Civil Asset Forfeiture Racket
http://reason.com/archives/2014/09/24/the-civil-asset-forfeiture-racket
A. Barton Hinkle of the Reason Foundation examines the growing problems created by civil asset forfeiture and argues for repeal of such laws.

Inequitable Justice: How Federal ‘Equitable Sharing’ Encourages Local Police and Prosecutors to Evade State Civil Forfeiture Law for Financial Gain
https://www.heartland.org/publications-resources/publications/inequitable-justice-how-federal-equitable-sharing-encourages-local-police-and-prosecutors-to-evade-state-civil-forfeiture-law-for-financial-gain?source=policybot
The Institute for Justice examines the federal law enforcement practice known as equitable sharing, which enables and indeed encourages state and local police and prosecutors to circumvent the civil forfeiture laws of their states for financial gain.

 

Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this subject, visit Budget & Tax News, and The Heartland Institute’s website.

The Heartland Institute can send an expert to your state to testify or brief your caucus; host an event in your state; or send you further information on a topic. Please don’t hesitate to contact us if we can be of assistance! If you have any questions or comments, contact Nathan Makla, Heartland’s government relations manager, at nmakla@heartland.org or 312/377-4000.

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Regulation
Author
Matthew Glans joined the staff of The Heartland Institute in November 2007 as legislative specialist for insurance and finance. In 2012, Glans was named senior policy analyst.
mglans@heartland.org @HeartlandGR