Late Wichita Rep. Gail Finney, who passed away in 2022, was an ardent advocate for reforming Kansas’ civil asset forfeiture system. This system allowed law enforcement agencies in the state to seize $23.1 million from individuals suspected of criminal activity, even without charging or convicting them of any related offense. In honor of her efforts, the Kansas Legislature recently passed a bill unanimously to overhaul the system that she had criticized. (Sherman Smith/Kansas Reflector)
Democratic Rep. Gail Finney caused a stir among state and local police officials and prosecutors in Topeka seven years ago when she publicly criticized the state law that permitted the seizure of property based solely on suspicion of illegal activity. She also highlighted the challenging process of contesting these actions, even if the defendant had never been charged or convicted of a crime.
According to Finney, who was elected to represent a lower-income area of Wichita in the House, the 1994 statute that law enforcement used to fill their departmental coffers with millions of dollars through seized cash, vehicles, and other property, represents the erosion of fundamental rights and reflects a fractured justice system. This system is particularly harmful to poor and minority Kansans.
In 2017, Finney expressed his concerns to lawmakers at the Capitol, stating that the civil asset forfeiture laws in Kansas pose a threat to the constitutional rights of citizens. He emphasized that these laws violate the fundamental rights of property ownership and due process, firmly believing that individuals in Kansas should be presumed innocent until proven guilty.
The concerns raised by Finney and others calling for significant changes to the civil asset seizure law have been rejected by the Kansas County and District Attorneys Association, as well as the Kansas Highway Patrol and Kansas Bureau of Investigation. In 2016, a legislative audit highlighted issues with the current law, and recommendations were provided by the Kansas Judicial Council. However, no action was taken for several years. Sadly, in 2022, Finney passed away. Despite her passing, her ideas regarding the injustices within the outdated law, which led to allegations of “profit-based policing” in Kansas, continue to persist.
The Kansas Legislature unanimously voted in favor of a bill that overhauls the asset seizure statute. The bill received widespread support from both Republicans and Democrats, as well as conservative special-interest groups. This bipartisan effort is seen as a significant victory against a law that had been distorting the justice system.
“This is a day that we have eagerly anticipated for seven years,” expressed Rep. Susan Humphries, a Wichita Republican and attorney who leads the House Judiciary Committee. “Countless meetings, hearings, interim committees, and judicial council committees have been conducted, with the invaluable contributions of our esteemed colleague, Gail Finney.”
Leawood Senator Kellie Warren, an attorney and the chair of the GOP Senate Judiciary Committee, believes that the bill on its way to Governor Kelly’s desk marks a significant milestone in the gradual approach towards rectifying disparities in the handling of civil asset seizure and forfeiture cases.
According to the representative, they identified an opportunity to safeguard the rights of Kansans by implementing measures to protect their liberties. Many individuals were having their assets seized without adequate means to present a defense and reclaim their confiscated property.
Kansas Highway Patrol Col. Erik Smith, a former U.S. Drug Enforcement Administration agent with 20 years of experience, cautioned lawmakers against limiting the confiscation of illegal assets held by criminal organizations. Smith emphasized that a significant portion of drug trafficking is linked to Mexican cartels and Chinese syndicates, making it unwise to curtail efforts to seize their illicit assets. Similarly, KBI director Tony Mattivi refuted claims made by special-interest groups, stating that Kansas civil asset forfeiture laws were not used to coerce innocent property owners. According to Mattivi, the available data does not support the notion that law enforcement has abused the system.
According to Sam MacRoberts, the general counsel of Kansas Justice Institute, the 30-year-old statute has allowed for government overreach by providing financial incentives to law enforcement agencies to seize property from individuals who are innocent.
“These reforms were long overdue and desperately needed,” stated MacRoberts. “Asset forfeiture is an abusive and fundamentally unjust practice. This marks a significant step in the right direction.”
According to the Kansas Judicial Council, law enforcement agencies in Kansas have seized a total of $23.1 million in property from July 2019 to November 2023. Out of this amount, $5.7 million was transferred to the federal government through revenue sharing agreements. However, only one-fourth of the remaining $17.4 million was returned to the rightful owners. Surprisingly, the Kansas Judicial Council highlighted that this process took an average of 249 days to complete.
“We are delighted to witness the passing of this legislation, which aims to prevent law enforcement from engaging in excessive behavior,” expressed Jon Lueth, the deputy state director of Americans for Prosperity-Kansas. “Our hope is that this law will enhance transparency, uphold due process, and safeguard the Fourth Amendment rights of the people of Kansas.”
What does bill do?
This Article Includes
Senate Bill 458 embodies reform measures that aim to eliminate the inclusion of possession or use of controlled substances as offenses subject to seizure and forfeiture actions, regardless of whether there was a prosecution or conviction. Presently, law enforcement has the authority to seize property and retain the proceeds for any violations related to controlled substances under the state’s criminal code.
State courts were directed by the legislation to determine whether law enforcement’s request for forfeitures was constitutionally excessive. The burden of proof would lie with the government’s attorney, who would need to establish, with “clear and convincing evidence,” that the forfeiture was proportional to the seriousness of the alleged offense linked to it.
The bill mandates that the law enforcement agency, which seizes assets, must submit a written request for forfeiture to the county or district attorney within 14 days. This is a significant reduction from the current 45-day period stipulated by the existing law.
If a local prosecutor rejects the request, the law enforcement agency will have 14 days to seek intervention from a state law enforcement counsel or the attorney general’s office to defend a forfeiture action. If state assistance is declined, the seizing agency must return the property to the owner within 30 days. The only exception would be seized dangerous drugs or hazardous materials, which would be destroyed instead of being returned.
The bill aims to prohibit the seizing agency from pressuring or persuading individuals who claim ownership or have an interest in a property to give up their rights in writing until the forfeiture proceedings actually commence.
The legislation had a significant impact on the ability of local and state law enforcement agencies to transfer seizure cases to federal authorities. This tactic made it more challenging for property owners to contest the confiscation. Federal attorneys were only permitted to take the case under specific circumstances. These included cases involving joint task force investigations or seizures, property seized by an agency that was later connected to a federal warrant obtained from a federal court, property seized in relation to a “serious public safety” concern, or property with a gross estimated value exceeding $25,000.
The bill proposes that in the future, a sworn statement outlining the reasons justifying the seizure of assets would be necessary. The process of confiscation could only commence once a judge in the state determined that there was sufficient legal grounds to believe that the property could be subject to forfeiture. Additionally, the owner would receive a notification of the impending forfeiture action, which would include the aforementioned sworn statement.
The proposed legislation aims to pause the discovery process in forfeiture cases when there are ongoing criminal proceedings involving allegations of illegal activity by the property owner. The bill intends to replace the current burden of proof, which is based on a “preponderance of the evidence” standard, with a higher standard of “clear and convincing” evidence. This change would elevate the level of proof required in civil asset cases in Kansas, with the highest standard being “beyond a reasonable doubt.”
If a person who filed a claim against law enforcement agencies in a civil asset case is successful and recovers at least half of the value of the seized property, this bill would mandate that the court orders the seizing agency to cover the defendant’s attorney fees. Additionally, the bill requires the agency to pay interest on seized currency and any proceeds from the sale of the seized property, starting from the date of seizure.
Tribulation on jury trial
Sen. David Haley, a Democrat from Kansas City, Kansas, and the nephew of the late Pulitzer Prize-winning author Alex Haley of “Roots,” expressed his satisfaction with the outcome of the negotiations. He mentioned that the resulting bill exceeded expectations in terms of its strength. If the Democratic governor signs it into law, Haley believes that it will hinder law enforcement officers who have been profiting from violating the civil rights of Kansans. He emphasized the need to put an end to the practice of seizing property from individuals without providing them with a fair chance to reclaim it.
Haley expressed his disappointment with the final package, as it did not include a provision that would have allowed defendants in seizure cases to request a jury trial. According to Finney, this provision was crucial in ensuring a fair judicial process.
Nikki Haley emphasized the significance of having an impartial tribunal, similar to a jury, that could be assembled to render a decision. She expressed her optimism for a future where such a system can be established.
Senator Warren, who spearheaded the negotiations on the civil asset legislation, believes that the bill should be seen as an incremental step. She envisions a future where the right to a jury trial in seizure actions is integrated into state law.
Warren stated that the law enforcement community strongly opposed the inclusion of the jury trial provision.
An essential provision of the bill, according to her, was that the KBI must generate a report on forfeiture activity by law enforcement agencies and record the agencies that refused to submit information for the state document. The bill also required the KBI to furnish the financial reports of each law enforcement agency’s forfeiture fund to the Kansas Senate president, the Kansas House speaker, and the judiciary committees in both the House and Senate.
Warren emphasized the importance of increased reporting and transparency in shedding light on the issue. She expressed the need to understand the mechanisms behind these seizures, the quantity involved, their locations, and the parties responsible.
The Kansas Legislature has voted to limit the powers of law enforcement in civil asset seizure cases. This decision marks a significant change in policy and aims to protect the rights of individuals. The new legislation ensures that law enforcement agencies cannot seize assets from individuals without due process and a conviction. These reforms come as a response to concerns about potential abuses of power and unfair treatment of citizens. The Kansas Legislature’s decision reflects a commitment to uphold justice and safeguard the rights of the people.
