Over 40 Kansas law enforcement officers and officials attended a judicial committee hearing on a bill proposed by Rep. Gail Finney, D-Wichita, intended to reform the law, requiring a criminal conviction before assets can legally be forfeited.
You can watch the full hearing below.
Current law allows law enforcement officers to keep property when they determine that a “preponderance of the evidence” demonstrates that the property was gained by or was part of illegal activity. A preponderance of the evidence is a significantly lower burden of proof than “beyond a reasonable doubt” which is the standard for obtaining a criminal conviction.
Once a person’s property is seized, they have to file an appeal to gain a hearing in order to then prove that their property was legitimately gained and not being used in criminal activity. Rep. John Whitmer, R-Wichita, said that he was “appalled” by an answer that he had previously been given about that process, and referred to the chances of someone winning such an appeal as “dismal”.
Whitmer, who serves on the judicial committee, said, “I’ve got to tell you, I am appalled, actually, from yesterday, the answer to the appellate process, and frankly how dismal the chances are of someone actually winning an appeal. It’s really disheartening”.
Whitmer then asked Dr. Micah Kubic, executive director of the ACLU of Kansas, to offer insight on how difficult or easy it is for someone to win an appeal when they haven’t been convicted of or even charged with a crime.
Kubic confirmed that around the nation, very few people are able to regain their property, stating that most people do not contest the forfeiture, because they are unable to obtain legal counsel to guide them through the process, also pointing out that the state is under no obligation to provide counsel to those who cannot afford it.
Kubic said, “In general, the chances of appeal are very low, and that most proceedings are not contested at all… and that is usually less to do with the criminal guilt or innocence of the person involved, and more to do with their inability to retain counsel to guide them through the process”.
Kubic also points out that the individual’s inability to pay stems from the fact that their assets are being held by law enforcement.
Testifying against the bill, recently retired Sedgwick County prosecutor Kim Parker refuted Kubic’s testimony, claiming that individuals do not contest their assets being forfeited because they “do not want to be convicted of crime. They do not want to touch illegally obtained money and claim that it is theirs”. Parker also states that 90% of the property seized by Sedgwick County goes uncontested.
Parker’s testimony echoes the sentiment of the law enforcement officials who testified against the bill, in that they refer to the property as being illegally obtained, despite the fact that this has not been proven. Parker also told legislators that “you can’t own illegally obtained moneys”.
Parker did not comment on Kubic’s assertion that individuals in these situations are not guaranteed legal counsel, and neither did any of the other officials who spoke against the bill.
Amanda Stanley, counsel for the William, Kansas Municipalities spoke against the bill, citing the storage costs that would incur if these agencies had to hold the property until a conviction was obtained. Kansas law allows law enforcement to seize property, given that there is probable cause that it is being used in or was gained through criminal activity. Seizing property is not the same as the forfeiture of the property. Seizing the property means that it may be returned to the owner, whereas forfeited property will not be returned.
Colonel Mark Bruce, of the Kansas Highway Patrol pointed out that in many cases, police seize property from a suspect who then bonds out of jail and is never seen again, or from a suspect who the DA’s office decides not to prosecute. Bruce defended the Highway Patrol’s process for forfeiting assets. However, a recent story in the Topeka Capital-Journal details a pattern of questionable seizures by the Kansas Highway Patrol in the Salina area.
Also in Topeka to testify against the bill, Sedgwick County Sheriff Jeff Easter cited concerns about what impact this legislation might have on other aspects of civil law where assets can be taken without a conviction, such as in cases involving tax evasion. Easter also says that many of the stories that people hear about things the department have done wrong are not true.
Lenexa Police Chief Tom Hongslo spoke about the drug problem in Kansas, and of finding large amounts of cash hidden in gas tanks, and said that it would be very frustrating to officers who find this money, but do not find any drugs, to just let the suspects go.
Wichita Police Chief Gordon Ramsay testified that “no one has the rights to retain the profits made through criminal activity”, and that there is due process, and that the burden of proof does lie with the state. Ramsay also stated that he does believe there is room for improvement with the statute. Ramsay expressed a desire to work with stakeholders to develop a statute that targets criminals while protecting property rights. Ramsay also mentioned the $500,000 that was stolen from Sedgwick County through fraud, and noted that if this law were passed, and then the suspect in that case were to get off on a technicality, that the suspect would be able to keep that money.
A representative of the KBI pointed out that often, even though a criminal case is not brought against a defendant, that it is “common knowledge” that these assets are the proceeds of criminal activity. The KBI representative also mentioned that sometimes the defendant dies, is a confidential informant, or “flees to Mexico”, which prevents their prosecution.
Several opponents of the bill also spoke in reference to the burden of storing and caring for animals that are seized, such as chickens and dogs that are suspected of being used in illegal gambling rings. One opponent said that it costs ten dollars a day, per chicken, and that if the state had to wait two years for a conviction, that this would be very costly.
Speaking in favor of the bill, Representative Finney states that taking money from potentially innocent people who have not been convicted of a crime is not a good way to fund to law enforcement. Finney says that doing so violates the trust between police and the community and that such trust is a vital component to a civilized society.
Former U.S. Marshall John Adams also spoke in favor of the bill, and said that the current law is “not constitutional, and is a loophole, at best”. Adams also pointed out that he does not believe these laws are in the best interest of police officers, given the current conflicts between law enforcement and the citizenry.
Libertarian blogger Bob Weeks testified in favor of the bill as well. Weeks suggested that the state “remove any financial incentive for law enforcement to seize property”, and mentioned that the Institute for Justice recently gave Kansas a grade of D- for it’s civil asset forfeiture laws in their report, Policing for Profit.
Dave Trabert, with the Kansas Policy Institute, testified that changing this law is “not being soft on crime, it is being strong on constitutional rights of citizens”. Trabert also recommended that the state pass legislation to require a receipt for any property taken, saying that it is “astounding that there are no receipts” required in our current laws, and also that the state should require agencies to retain the property they take, rather than perhaps giving it to the federal government, so that if an individual has to sue to get their property back, the agency will still have that property.
Sedgwick County Commissioner Richard Ranzau spoke in favor of the bill and suggested that maybe, in cases where no one is willing to claim seized property, that perhaps a compromise can be made, but that in most cases, a conviction should be required before property can be forfeited.
The hearing ended with a legislator asking if there would be any objection to forfeited assets being turned over to the state general fund, to which Colonel Bruce said he had no objection. The other law enforcement officials in the room did not answer that question. After the hearing, Bob Weeks suggested that the money instead be given to the Crime Victims’ Fund, which compensates victims for medical expenses and lost property.