When Good Property Goes Bad: a Primer on Kansas Asset Forfeiture Law and Procedure
| Publication year | 2001 |
| Pages | 24-29 |
70 J. Kan. Bar Assn. 3, 24-29 (2001). WHEN GOOD PROPERTY GOES BAD: A Primer on Kansas Asset Forfeiture Law and Procedure
70 J. Kan. Bar Ass'n, March 2001, 24-29 (2001)
I. Introduction
[The] police power is an inherent power of the sovereign and is essential to protect members of the community from injury. It rests upon the fundamental principle that all property is owned subject to the limitation that its use may be regulated for the safety, health, morals, and general welfare of the community in which it is located.[1]
We all try very hard to instill good values in our children, but how well are we doing with our property? Just when we think our Chevy Astro should know the difference between right and wrong, the telephone rings and we learn the police have seized our van for transporting cocaine. Who knows when it chose the wrong road. We knew it was in the garage at 10 P.M. every night. We changed the oil on time, splurged on premium unleaded and used the best mechanics money could buy. Maybe it was a factory defect. Or, more likely, it was the influence of that flashy red BMW convertible next door. Everybody knows BMW's are into drugs. That vixen! But, alas, blame matters little; the family ride is in jail and it needs a lawyer.
For thousands of years, governments have attempted to curb criminal behavior and protect society through the control of private property, whether it be a goring ox, an illegal brewery, a polluting oil refinery, an offending hog farm or a house where methamphetamine is packaged and stored for sale.[2] Though the right to private property is constitutionally protected,[3] and in a southern court even termed a natural right,[4] it has long been held that all property is subject to a government's police powers. Blackstone believed all property is derived from society, being one of those civil rights, which are conferred upon individuals in exchange for that degree of natural freedom that every person must sacrifice when entering into social communities.[5]
Our founding fathers agreed. For example, Thomas Jefferson believed that at times private property must yield to the needs of society. Benjamin Franklin stated that individual property ownership exists and is protected only because of society's agreement that it be used to further the goals of society as a whole.[6] The first Congress, the same men who sent the Bill of Rights to the states for ratification, passed the first federal forfeiture laws.[7] The Kansas Bar Association wrote favorably on the topic calling it a "legitimate tool for law enforcement."[8] Forfeiture laws in the United States and Kansas have consistently been found to be constitutional.[9]
The effort to control crime through the control of private property continues in Kansas today, embodied in the Kansas Asset Seizure and Forfeiture Act of 1994 (KSASFA), K.S.A. 60-4101 et seq. KSASFA not only confiscates criminal profits and property used to make crime easier, but it transforms those profits and property into new, additional law enforcement resources.
KSASFA is a supplemental civil remedy that is to be liberally construed by the courts for its remedial purposes.[10] Used sparingly in this state, the act has the reputation of being one of the strongest yet most fair asset forfeiture legislation in the United States. Interestingly enough, the new federal Civil Asset Forfeiture Reform Act of 2000 (CAFRA), studied and argued over in Congress for years, finally adopted the same basic due process provisions that Kansas has had since 1994.[11]
This article will briefly review the history of KSASFA, detail the life of a typical state forfeiture case, and then discuss the confusing difference between seizure of property for forfeiture and seizure of property under the Kansas Drug Tax Act. This overview is intended to provide only an introduction to the fascinating, yet intricate, Kansas forfeiture act. Attorneys required to practice in this area are forewarned to adjust their comfort level beyond the confines of this article.
II. KSASFA's Heritage
Kansas has had forfeiture laws since the territorial days.[12] Nuisance abatement was used and made famous when Carrie Nation smashed bars across the state.[13] Such laws have been used in obscenity, liquor, cigarettes, prostitution, wildlife and environmental violations.[14] Little wonder it was brought back to life in the drug war more than 20 years ago.
By 1992, however, forfeiture was receiving a somewhat well-deserved reputation on the nation's coasts as being Draconian in both its lack of procedural safeguards and in its zealous use by law enforcement. Recognizing the approaching dust cloud of forfeiture problems, then Attorney General Robert Stephan appointed a special committee of forfeiture practitioners to review the state's forfeiture statutes and to recommend needed improvements.[15]
Following their year long study, the committee settled upon a complete overhaul of the vague, federal-model, Uniform Controlled Substances Act (USCA). Its proposed legislation, later little changed by the Legislature, was essentially the 1991 Model Asset Seizure and Forfeiture Act, tweaked with some important Kansas features and court decisions.[16] Debated during two legislative sessions, KSASFA passed almost unanimously when brought to the respective floor votes at the end of the 1994 session.[17]
Simply put, KSASFA is a civil procedure that, in its in rem posture, sues the property for what the property has done wrong. There need not be any parallel criminal case or conviction involving a human being. The relief sought is remedial in nature because it seeks to turn the offending property away from its life of crime to one more beneficial to society. Some have argued that a criminal conviction should be necessary for property forfeiture. But criminals have already made that argument moot because they routinely place their property and proceeds in the names of "straw" owners who are certain not to be exposed to criminal charges. Further, in many cases, no person comes forward to claim seized property, especially cash, because of their fear of identifying themselves to criminal investigations or to tax problems with the IRS.
Just months ago, in Colby, Kan., a fugitive drug dealer stopped for a traffic violation killed himself at the scene and police recovered $3,700,000 in the trunk of his car. On the same day, Colorado authorities found another $6,000,000 in a storage facility rented by the drug dealer in that state. The deceased drug dealer was, obviously, never convicted of the crimes involving the currency. Should the $10,000,000 in illegal drug money go to the drug dealer's heirs, or to the taxpayers of Kansas and Colorado? Requiring a conviction to forfeit property may sound all warm and fuzzy...
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