TOPEKA, Kan. (Feb. 15, 2023) – Two bills introduced in the Kansas House would reform asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most cases. But the legislation leaves a loophole open that would allow police to continue using asset forfeiture by partnering with the feds.
The House Judiciary Committee introduced House Bill 2380 (HB2380) on Feb. 9 and House Bill 2396 (HB2396) the following day. The bills differ slightly in their language but would have the same effect. The legislation would require a criminal conviction before prosecutors could proceed with the asset forfeiture process in most cases. It would also require proof beyond a reasonable doubt that property is subject to forfeiture.
The proposed law would also address the “policing for profit” motive inherent in the forfeiture system by directing all forfeiture proceeds to be transferred to the general fund after the payment of expenses incurred during the forfeiture process. Under current law, Kansas law enforcement agencies can keep up to 100 percent of forfeiture proceeds.
According to the Institute for Justice, “Kansas has some of the worst civil forfeiture laws in the country.”
While the passage of either bill would significantly reform the Kansas asset forfeiture process, they both fail to address a loophole that allows state and local police to get around more strict state civil asset forfeiture laws in a vast majority of situations. This is particularly important in light of a 2017 policy directive issued by then-Attorney General Jeff Sessions for the Department of Justice (DOJ) that remains in place today. Without opting out of the federal asset forfeiture program, police will have an easy avenue to circumvent these important reforms.
Today, the House Judiciary Committee held a hearing on HB2380 – an important first step in the legislative process.
NECESSARY
While some people believe the Supreme Court “ended asset forfeiture, its opinion in Timbs v. Indiana ended nothing. Without further action, civil asset forfeiture remains. 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.”
Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts will address this “over the next few years,” or they can do what a number of 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.
FEDERAL LOOPHOLE
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.
Through this program, law enforcement agencies often bypass 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 closed the loophole in 2016.
Neither HB2380 nor HB2396 address this loophole. Without amendments, Kansas law enforcement would continue to have a forfeiture process even if the state process is eliminated.
The Kansas House should amend the current legislation with the following language to close the loophole and opt the state out of equitable sharing.
A state or local law enforcement agency shall not transfer or offer for adoption property, seized under State law, to a federal agency for the purpose of forfeiture under 18 U.S. Code Chapter 46, or other federal law.
A joint task force of a law enforcement agency and a federal agency shall transfer seized property to the prosecuting authority for forfeiture under this chapter.
The joint task force may transfer seized property to the U.S. Department of Justice for forfeiture under federal law if the seized property includes U.S. currency that exceeds $100,000.
A law enforcement agency is prohibited from accepting payment or distribution of any kind from the federal government if the federal government requires seized property that includes U.S. currency less than $100,000 be transferred to the federal government for forfeiture under federal law
Very few cases exceed the $100,000 threshold.
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.
WHAT’S NEXT
HB2380 and HB2396 were both referred to the House Committee on Judiciary. The bills will have to pass the committee by a majority vote before moving forward in the legislative process.
