TOPEKA, Kan. (April 25, 2024) – On Tuesday, Kansas Governor Laura Kelly signed a bill into law that makes modest reforms to the state’s civil asset forfeiture process, but leaves participation in a federal program that allows state and local police to circumvent more strict state forfeiture laws mostly intact.
The Senate Judiciary Committee introduced Senate Bill 458 (SB458) in February. The new law makes several changes to the state’s civil asset forfeiture process to modestly strengthen protections for property owners.
The House passed SB458 by a 120-0 vote and the Senate approved the measure 35-0. With Gov. Kelly’s signature, the law will go into effect as soon as it is published in the statute book.
The new law raises the burden of proof in forfeiture cases to “clear and convincing evidence.” Also, under the new forfeiture process, police will no longer be able to seize property for offenses related to the personal use of drugs. The law empowers judges to determine if a seizure is unconstitutionally excessive. It also places the burden of proof on prosecutors to prove that the seizure is proportional to the crime.
The enactment of SB458 is a step forward in Kansas, a state that had among the most lax forfeiture laws in the country, but the process still won’t require a criminal conviction before proceeding with forfeiture.
Kansas Justice Institute litigation director Sam MacRoberts told Reason that the passage of SB458 was “a great start,” and he hopes it will “cut down on some of the more abusive forfeiture cases.”
FEDERAL LOOPHOLE
SB458 takes a small step to address a federal loophole that allows police in Kansas to circumvent the more strict state process by sending cases to federal prosecutors. but it left a gaping hole wide open.
A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. Through this process, state or local police hand the forfeiture case to the feds to prosecute even though there was initially no federal involvement in the investigation and seizure.
State and local police can also tap into equitable sharing by working with the feds on joint task forces. About 85 percent of equitable sharing cases arise from these joint task forces, but a significant number also begin with adoption.
Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.
California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state partially closed the loophole in 2016 by banning adoption. It still allows cases arising through joint task forces to be prosecuted by the feds. In those cases, state and local law enforcement agencies can only keep equitable sharing proceeds if there is a criminal conviction and the value of the property is above a $40,000 threshold.
HB458 limits adoption but allows forfeiture to occur under the federal process if the seizure was by a joint task force or if it is pursuant to a joint investigation with federal law enforcement authorities. It also allows a transfer to federal jurisdiction if “the agency makes such request in conjunction with a request for federal law enforcement authorities to adopt the criminal investigation relating to the seizure.”
While the new law places limits on adoption, it will only impact about 15 percent of equitable sharing cases. In order to fully opt the state out of equitable sharing, the legislature needs to put substantial limits on forfeitures through joint task forces.
As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.
Why?
We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.
NECESSARY
While some people believe the Supreme Court “ended” asset forfeiture, its opinion in Timbs v. Indiana ended nothing. The court merely held that the Eighth Amendment provisions prohibiting “expressive fines” apply to the state through the incorporation doctrine. Without further action, state and federal law enforcement can still use the civil asset forfeiture process with few limits. Additionally, as law professor Ilya Somin noted, the Court left an important issue unresolved. What exactly counts as “excessive” in the civil forfeiture context?
“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”
Somin has been proved correct. Five years later, the SCOTUS decision still hasn’t limited asset forfeiture.
Going forward, opponents of civil asset forfeiture could continue to wait and see how lower federal courts will address this “over the next few years,” or they can do what several states have already taken steps to do, end the practice on a state level, and opt out of the federal equitable sharing program as well.
