Unfairly Maligned the Myths Surrounding the Kansas Civil Asset Forfeiture Debate....
| Citation | Vol. 86 No. 3 Pg. 44 |
| Pages | 44 |
| Publication year | 2017 |
The Myths Surrounding the Kansas Civil Asset Forfeiture Debate....
By Colin D. Wood and Gaten T. Wood
I. Introduction.
Other than criminals, it is a safe bet that everyone agrees bad guys should not get to keep the profits of illegal activities or use property in such a way that it damages our society. But at the same time, we would all agree that property rights are important and that innocent property rights should be protected. So, how do we constitutionally accomplish both of those very legitimate policy goals? Well, for more than 200 years Americans have found no better way than to target such ill-gotten gains and criminal assets through the use of civil asset forfeiture, a legal mechanism that removes bad property from bad uses, and redirects it to victims and community safety programs.
The current debate over civil asset forfeiture is the fourth of its kind in Kansas since 1970. Each time, we stop to examine and evaluate the need for, and the scope of, our state's forfeiture laws. Each time, the debaters change but the myths surrounding civil forfeiture creep back in, "...for the great enemy of the truth is very often not the lie—deliberate, contrived, and dishonest—but the myth—persistent, persuasive, and unrealistic."[1]
This article will review current law and highlight the unforeseen but practical consequences of certain proposed legislative changes. In the end, it is hoped that the reader will understand there are many valid reasons why civil forfeiture laws exist, and why public policy in Kansas concerning forfeiture has not substantively changed since before statehood.[2]
II. The Current Debate.
The Kansas Supreme Court reminded us fifty years ago that "[t]he 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."[3]
Grounded in that police power, civil asset forfeiture is an in rem (against the property itself) proceeding in civil court that legally severs ownership rights in certain property because that property represents the "proceeds" from crime, or that property was used or intended to be used in an illegal exchange—such as to purchase controlled substances—or that property was used or intended to be used to make committing a crime easier (known as facilitation). Many of the civil forfeiture court case names are strange, but they quickly identify that each is a proceeding against property and not a person: State v. $551,985.00 in U.S. Currency[4] or State v. One 2006 Grey Lexus SC430.[5]
Civil forfeiture has been public policy in America since colonial times. In 1789, our First Congress passed customs acts containing in rem forfeiture procedures for the enforcement of the laws of the newly born nation. Kansas has had civil forfeiture laws or public nuisance statutes since it was a western territory.[6] The use of civil forfeiture has repeatedly been held constitutional by both Kansas state courts and the United States Supreme Court.[7]
In 1994, the Kansas Legislature passed, almost unanimously, the current civil forfeiture reform act known as the Kansas Asset Seizure and Forfeiture Act (KSASFA).[8] The Kansas Bar Association praised KSASFA, calling civil forfeiture a "legitimate tool for law enforcement."[9] There have been approximately twenty Kansas appellate court cases interpreting KSASFA. No appellate case has found a single issue with its due process provisions.[10]
In 2000, an audit was undertaken by the Legislative Division of Post Audit to determine "whether the laws governing the sale of [forfeited] property are being followed, and how the proceeds are spent." That audit found no misuse of funds, but did find that some agencies mixed drug tax and state forfeiture monies into one fund and failed to submit annual reports on forfeitures to their governing bodies.[11]
Although civil forfeiture was under recent national media scrutiny,[12] the current Kansas debate started in the 2015 legislature with the introduction of a bill that would have required a criminal conviction before civil forfeiture was authorized.[13]That bill was followed in 2016 by two more: the first required not only a criminal conviction, but redirected any forfeited proceeds from law enforcement programs to the state general fund; the second would have created a grant fund with a portion of forfeited proceeds given to agencies not involved in the original property seizure or the related investigations. None of the bills received a hearing.[14]
By July 2016, a second state audit of civil forfeiture in Kansas was completed for the Legislature. Again, "... [the agencies audited] adequately safeguarded seized property, appropriately liquidated forfeited property, and appropriately spent forfeiture proceeds." However, the audit did again find that agencies were not properly reporting forfeiture financial reports to their local government bodies.[15]
III. Myths Surrounding Kansas Civil Forfeiture
Myth #1. Civil asset forfeiture laws lack constitutional due process protections, and owners are required to prove the seized property's innocence.
You be the judge. KSASFA contains the following protections concerning the right to legal notice, an opportunity to be heard, and a decision by a neutral fact-finder:
a. Law enforcement may only seize property upon probable cause to believe that property is then subject to forfeiture; probable cause is the same level of constitutional suspicion required to take a person into custody for an alleged crime.[16]b. Law enforcement is required to provide written notice to the person from whom property is seized. Among other things, the notice contains information about the property, the law enforcement agency involved, and a contact person able to respond to questions.[17]
c. Constitutional notice of a forfeiture proceeding is required to be given to all known and unknown potential claimants, innocent owners, lienholders, etc. that may have an ownership interest in the seized property.[18]d. Claimants may request a probable cause hearing before a district judge.[19]
e. Similar to persons arrested of crimes, seized property can be released upon the posting of an appropriate bond.[20]f. Seizures are reviewed by the county or district attorney or other forfeiture prosecutor before the case is filed in court.[21]
g. There are no filing fees to file a claim in a civil forfeiture case.[22]h. The state is required to file the civil forfeiture case in court within 90 days of the seizure for forfeiture, or the property is subject to a conditional release by the court.[23]
i. A civil forfeiture case may be stayed pending the...To continue reading
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