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Research & Commentary: Kansas Civil Asset Forfeiture Reform Wouldn’t Go Far Enough

March 13, 2018

In this Research & Commentary, Lindsey Stroud examines a proposal in Kansas reforming the state's civil asset forfeiture laws.

Like many states, Kansas needs to implement significant reforms to its civil asset forfeiture laws. Civil asset forfeiture, also known as civil judicial forfeiture, is a controversial legal process in which the personal property of individuals suspected of a crime or illegal activity can be seized by law enforcement agencies without due process.

Legislators in Kansas are considering reforming the state’s current law in the wake of a 2016 legislative audit by the Legislative Post Audit Committee, which determined the state’s “vague forfeiture laws allowed agencies to use forfeiture proceeds for inappropriate expenses,” including funding salaries and operational expenses.

Lawmakers are proposing greater forfeiture reporting requirements. If passed, the legislation would establish the Kansas Asset Seizure and Forfeiture Repository (Repository) to “gather information concerning each seizure for forfeiture.” The Repository would be part of the Kansas Bureau of Investigations. The legislation would also levy “tighter requirements for notifying defendants,” as well increase mandated response times “from 30 days to 60 days.” Additionally, the legislation would place a greater burden of proof on the seizing agencies.

According to the Institute for Justice (IJ), “Kansas has some of the worst civil forfeiture laws in the country.” The state earned a “D-” ranking in IJ’s 2015 Policing for Profit report card. IJ notes the low “bar to forfeit” and lack of a criminal conviction necessary for authorities to seize property. The state’s laws offer limited protections to innocent persons. Even more problematic is that 100 percent of proceeds from forfeited assets are distributed to law enforcement agencies, creating an incentive for police to seize assets.

Fourteen states currently “require a criminal conviction for most or all forfeiture cases.” Without requiring a conviction, Kansas law treats property seized from suspected persons as guilty until proven innocent. The standard of proof Kansas uses to seize property is a “preponderance of the evidence,” which usually finds “in favor of the government [and is] a much lower hurdle than beyond a reasonable doubt.”

With 100 percent of seized proceeds being distributed to law enforcement agencies, Kansas civil asset forfeiture laws provide a strong motivation to seize property. Otherwise known as “policing for profit,” such policies encourage agencies to pad “their department budgets with capital taken from innocent individuals.” To reduce this negative behavior, proceeds from seized assets should be directed to other agencies in the state. Such is the case in neighboring Missouri, where 100 percent of forfeited assets go to school funding.

One example detailing the overreaching power of Kansas’ civil asset forfeiture laws is the case of Salvador Franco of Las Vegas, Nevada. Franco was at a rest stop in Ellsworth County, Kansas when a police officer approached him and searched his car. A canine unit indicated the presence of illegal drugs in Franco’s vehicle. Police searched Franco’s car and found more than $32,000 beneath the seat. Kansas State Highway patrol troopers seized the $32,000 in Franco’s vehicle even though no drugs were found and Franco was never convicted of a crime. In 2017, Franco received $12,000 of the seized money after he reached an agreement with a U.S. district court. The “remaining $20,100 was forfeited to the U.S. government.”

Franco’s case is a stark example of the lack of due process that is rampant in many civil asset forfeiture cases in Kansas and across the United States.

While the current proposal would offer some much-needed transparency to Kansas’ civil asset forfeiture system, the reforms do not go far enough. Lawmakers should restore the fundamental constitutional right of due process by requiring a criminal conviction, establishing greater burdens of proof, and distributing proceeds from seized assets to agencies other than law enforcement.

 

The following articles provide more information about civil asset forfeiture.

Research & Commentary: Kansas Civil Asset Forfeiture Laws in Need of Reform
https://www.heartland.org/publications-resources/publications/research--commentary-kansas-civil-asset-forfeiture-laws-in-need-of-reform
In this Research & Commentary, Heartland Senior Policy Analyst Matthew Glans examines proposals made in 2016 for reforming Kansas’ civil asset forfeiture laws. Glans notes the laws “are in dire need of reform,” and argues “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.”

Civil Asset Forfeiture: When Good Intentions Go Awry
http://www.heritage.org/research/reports/2016/07/civil-asset-forfeiture-when-good-intentions-go-awry
In this testimony given before the Mississippi Asset Forfeiture Transparency Task Force, John Malcolm of The Heritage Foundation examines forfeiture in Mississippi and other states and argues for reform. “Civil asset forfeiture should remain focused on its original purpose of depriving criminals of their ill-gotten gains, but we must be sure that it is criminals and only criminals who are being impacted,” said Malcolm.

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 and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.

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 Charlie Katebi, Heartland’s state government relations manager, at ckatebi@heartland.org or 312/377-4000.

Author
Lindsey Stroud joined The Heartland Institute in 2016 as a Government Relations Coordinator. In 2017, Lindsey was named State Government Relations Manager.
lstroud@heartland.org