TOPEKA, Kan. (April 6, 2018) – Last Monday, Kansas Gov. Jeff Colyer signed a bill into law implementing strict reporting requirements for all asset forfeitures in the state. The bill takes a first step that could lead to substantive reforms.
The Committee on Judiciary introduced House Bill 2459 (HB2459) on Jan. 11. The new law requires Kansas law enforcement agencies to report the date, location, and value of asset seizures. They also must disclose whether or not criminal charges were filed. Additionally, police departments must keep a careful accounting of asset forfeiture proceeds, including information on how the money is spent. The law requires Kansas law enforcement agencies to also report any cases passed off to the federal government.The information will be available on a public website.
Although HB2459 doesn’t reform Kansas asset forfeiture laws, it does lay a foundation to do so in the future. By increasing transparency, HB2459 will allow Kansans to actually see the reality of asset forfeiture. As the saying goes, sunlight is the best antiseptic. Transparency often creates the momentum needed to drive future change.
When the Institute for Justice tried to get asset forfeiture data from the Kansas State Police, it took five months and $500 to get the information. The lack of information hinders grassroots efforts to reform the asset forfeiture system. Police can effectively hide what they’re doing. When the IJ finally got the data from the KSP, it revealed that from 2009 to 2015, the agency spent $1.36 million in forfeiture proceeds on salaries and overtime, plus another $2.7 million on a new headquarters, according to reporting by Reason.com.
Clearly, law enforcement agencies have plenty to hide.
The requirement to report all cases passed off to the federal government could set the stage to close a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a policy directive issued last July by Attorney General Jeff Sessions for the Department of Justice (DOJ).
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.The new DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.
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.
Until recently, 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.
Kansas could close this loophole in most situations by effectively withdrawing from the federal program. We recommend the following language.
- A law enforcement agency or prosecuting authority may not enter into an agreement to transfer or refer seized property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint taskforce or by other means for the purposes of forfeiture litigation and instead must refer the seized property to appropriate local or state prosecuting authorities for forfeiture litigation under this chapter unless the seized property includes U.S. currency in excess of $100,000.
- This paragraph preempts laws by township, municipal, county and other governments in the state which regulate civil and criminal forfeiture.
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.
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
Tenth Amendment Center
The Tenth Amendment Center is a national think tank that works to preserve and protect the principles of strictly limited government through information, education, and activism. The center serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power as required by the Constitution. For more information visit the Tenth Amendment Center Blog.