Kansas lawmakers sending asset forfeiture bills for study

Kansas Capital

TOPEKA, Kan. (AP) — Kansas lawmakers are opting not to act this year on questions raised by an audit critical of the state’s asset forfeiture laws, but have instead asked a judicial advisory group to review potential changes.

The audit, released last summer, concluded that law enforcement agencies take advantage of vague laws governing how they should report and use property seized from those suspected of crimes. Some departments use proceeds for what look like routine expenses, which can create an incentive for increased seizures, the audit said.

Law enforcement officials and prosecutors say the process helps them deter profitable crime, like drug trafficking.

The House Judiciary Committee heard testimony last month on several measures, including one to require a conviction before property is seized, but opted to send the bills to the Kansas Judicial Council, an advisory committee in the judicial branch. Chairman Blaine Finch said the council would be able to study the bills more extensively than the Legislature would.

Asset forfeiture is getting increased attention across the county, and 12 states now require conviction before forfeiture, according to the Institute of Justice, a Libertarian group.

Allies in the effort to change the laws are as diverse as the ACLU and conservative billionaire Charles Koch. The issue bubbled up this week when President Donald Trump, meeting with a group of sheriffs visiting the White House, offered to “destroy” the career of a Texas lawmaker who favors reforming asset forfeiture laws in that state.

Rep. Gail Finney, a Democrat from Wichita, has sought changes for several years. She is especially focused on property seizures without convictions.

“It is an egregious violation of public trust, and public trust in the police is one of the most vital elements in a civilized society,” Finney said during the committee hearing.

Asset forfeiture walks a thin line between civil and criminal procedure, said Richard Levy, a University of Kansas constitutional law professor. It can be used as a regulatory procedure to deter or discourage “unlawful profits,” Levy said, but a seizure could be challenged if it were used as punishment for an offense a person hasn’t been convicted of.

“If you could make the case that what’s going on is really a criminal punishment rather than a civil forfeiture and although it’s called a civil forfeiture, it’s really punitive in character, then the failure to provide all the procedural safeguards that are necessary for criminal prosecution would be a problem.”

About 80 percent of asset forfeiture cases never result in a conviction, said Micah Kubic, executive director of the American Civil Liberties Union of Kansas.

Kansas Highway Patrol Colonel Mark Bruce said in written testimony against changing the laws that forfeiture allows seizure of property from drug couriers, fugitives and straw owners or in cases where the prosecutor doesn’t charge a suspect or the suspect dies.

“Routinely that criminal property is in the hands of a courier or a mule that’s operating on behalf of someone else higher in the food chain within that enterprise,” Bruce said. “And they routinely deny knowledge of the property and walk away.”

Finney said she would have liked to see a decision by lawmakers this year and called reforms “overdue,” but she added that she has been assured the proposals will be well vetted by the council. In addition to a bill that would require a conviction before forfeiture, the council will review a measure that takes away law enforcement’s discretion about how the proceeds are used. The money is supposed to be used for “special, additional law enforcement purposes,” but the audit found that’s not always the case. Another far-reaching bill under review would require, among other things, that the money be used for education.

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