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Kansas’ criminal forfeiture law, among nation’s toughest, faces bipartisan effort to change

By Karen Dillon - | Feb 15, 2016

TOPEKA — In Kansas, like many states, the local justice system can take and keep your cars, your cash, and your other personal property, if law enforcement believes the property was used in a crime.

But unlike in some states, there’s one step Kansas prosecutors don’t have to first complete before they can claim your property: a conviction.

Currently, the state’s forfeiture law does not require a conviction. A forfeiture case is civil, not criminal, and law enforcement must prove by a preponderance of evidence rather than beyond a reasonable doubt that the seized property was used in a crime.

That may change in Kansas, but likely not without a fight. A bill has been filed in the Kansas Legislature that would require individuals to be convicted of a crime before they can have their property taken — a legal process called forfeiture — by law enforcement agencies or prosecutors.

“When I tell people that in the state of Kansas, you don’t have to be convicted of a crime (to have your property forfeited), people are shocked,” said Rep. Gail Finney, a Wichita Democrat and one of the sponsors of the bill. “This is terrible, and the majority of people don’t even know that.”

The forfeiture bill is part of a trio of Kansas bills aimed at law enforcement reform. The other two would provide compensation to those wrongfully convicted and would require police to record interrogations. Both come on the heels of the release of Floyd Bledsoe, who served 15 years for a murder conviction but was released from prison in December after DNA evidence emerged showing he could not have committed the Jefferson County crime.

Those two bills are expected to have a better chance of approval than the forfeiture bill. Law enforcement agencies and prosecutors have begun to oppose the forfeiture changes, in part, because the bill also would prohibit law enforcement agencies and prosecutor offices from directly receiving the cash garnered from forfeitures.

Law enforcement agencies are arguing such a change will mean less money for departments to fight crime, but justice reformers are saying the changes are badly needed in Kansas.

Rep. John Bradford, a Lansing Republican who also sponsored the bill, said he has friends who have told him about cases where their money was seized, they were never charged with a crime and still had a difficult time getting their money back.

Bradford gave an example of a wealthy Wichita friend who came to a Kansas community to buy a boat with $40,000 cash. Bradford said that if his friend had been pulled over, police could have seized the money because there is a legal presumption that someone carrying that much money is associated with illegal drugs.

“The system as it is is kind of corrupt when you have to fight to get back what is already yours,” he said. “So I said, ‘We have to fix this.'”

Law enforcement agencies across the state are voicing their opposition to the legislation.

Requiring a conviction to take away cash and property from criminals would diminish law enforcement’s ability to fight crime, several police officials and lobbyists told the Journal-World.

Currently, the state allows law enforcement agencies and prosecutors to keep forfeited money and property to spend on law enforcement needs as long as it does not supplant their operating budgets provided by taxpayers. As proposed, the new law would require that money to go into a special state fund.

And many agencies depend on the money to fight crime by using it for “buy money” to get drugs off the street, to help fund drug task forces and to purchase law enforcement equipment, they said.

The Kansas Association of Chiefs of Police, Kansas Peace Officers Association, Kansas Sheriffs’ Association and Kansas County & District Attorney Association have all come out in opposition of amending the state’s forfeiture statutes.

Bill Edwards, Eudora police chief and president of the Kansas Peace Officers Association, said the current law is designed for police to take the proceeds of criminal gains from the bad guys and plow it back into other investigations to catch more.

“I believe the system is working efficiently,” said Edwards, adding that a number of law enforcement agencies are using forfeited funds to buy body cameras. “We like the way the system is set up now.”

Troy Briggs, Haskell County sheriff and president of the Kansas Sheriffs’ Association, said without the ability to seize cash and property, investigations could be curtailed.

“It is hard enough to make these small departments work, and when you take a piece away, it hurts,” Briggs said. “If the bill passes, I think you will see a reverse, you will see far less seizures.”

Unclear numbers

It’s difficult to know how much money is involved because Kansas does not have a centralized reporting system. The state’s Legislative Division of Post Audit is conducting an audit of the forfeiture program and is scheduled to be finished in May. An estimate of how much money has been forfeited might be available then.

A national forfeiture study by the Institute for Justice, a nonprofit agency that advocates for forfeiture law reform, showed that Kansas agencies had received $53.5 million in forfeited funds from the federal government from 2000 to 2013. Compared with local forfeiture monies, that amount could possibly be almost double, some legislators believe.

The Institute for Justice report entitled “Policing for Profit: The Abuse of Civil Asset Forfeiture” found that “Kansas has some of the worst civil forfeiture laws in the country, earning a D-.”

The report noted that determining the amount of forfeiture activity in Kansas would require submitting a records request to every law enforcement agency in the state.

Police reports about seizures also are closed to the public, making it difficult for the public to track cases.

Bipartisan concern

The criminal justice reform movement, including the forfeiture issue in Kansas and across the country, has created unlikely allies such as Koch Industries and the American Civil Liberties Union, conservative Republicans and liberal Democrats.

“There is not a lot that I agree with the Obama administration and the Obama Justice system on, but this is one that I do, and a lot of conservatives do,” said Rep. John Rubin, a Shawnee Republican and retired federal administrative law judge.

Fixing the state’s forfeiture law is just one step to repairing the criminal justice system overall, said Rubin, who believes the forfeited property should go into a statewide law enforcement fund as opposed to returning it to the department that seized it. But he doesn’t believe a conviction is necessary to forfeit property.

“There is something terribly wrong when the country at large by a factor of two or three times imprisons more of our population than any other developed nation,” said Rubin, who is planning to file his own forfeiture bill soon.

Some states such as Missouri prohibit law enforcement from keeping the funds. The constitutions in Missouri and some other states require that the money go to education.

In Kansas, a hearing has not been set for the Finney-Bradford bill, and Finney said the chairman of the Judiciary Committee where the bill is filed is considering waiting until after the state’s audit report is released in early June.

Ed Klumpp, a retired Topeka police chief and a lobbyist for law enforcement associations, said he is speaking with legislators to let them know how important the money is to police agencies.

“If that money is not there … our choices are this, we either discontinue the things we are funding out of criminal money, or we have to fund them out of taxpayer money,” he said. “In this day when the state is telling us you can’t do much to raise local money, a lot of the operations will cease.”