In 2018, Kansas was able to take a first step toward having better controls over asset forfeiture by passing a law that mandates greater transparency over assets seized by law enforcement officers. This year,focus should continue on achieving better asset forfeiture controls and best practices.
Civil asset forfeiture first came into play in the 1980s, during the height of the crack cocaine epidemic. The assets of suspects that were linked to certain criminal activities could be seized and then forfeited to the government. This was viewed as a significant part of fighting the crack cocaine wars. But in our successes, we got greedy and state legislatures saw an opportunity to supplant law enforcement budgets with these seized assets. And over the years, the burden of proof for these seizures has been lowered significantly to the point where criminal charges are no longer even needed.
Allowing law enforcement to keep seized property without criminal convictions has caused a constitutional crisis in America. And moreover, a black eye for law enforcement agencies. How can we take an oath of office to protect the Constitution of the United States when we can routinely violate a persons’ Fifth Amendment rights to due process, or their Fourth Amendment right to be free from unreasonable seizures? Reforms are needed quickly with respect to civil asset forfeiture. These reforms should raise the burden of proof to a “clear and convincing” standard, and should require a criminal conviction before any assets can be forfeited.
At present, asset forfeiture reform has support from both sides of the political spectrum. Rep. Gail Finney, (D) Wichita, championed the transparency law that will be used to track seizures. “It’s exposing asset forfeiture to daylight,” she said. “Citizens are aware of seizures and they know it’s not correct. And they know there’s no due process.”
In addition, House Speaker Ron Ryckman, (R) Olathe, said in a Choosing Freedom podcast interview: “…we all know [the current practice] isn’t right…” and wants the legislature to look at what other states have done to “…come up with a policy that’s right for our state.”
Asset forfeiture is an important tool in the fight against crime, but law enforcement has an even more important role than simply fighting crime: to uphold the Constitution of the United States. Asset forfeiture should only be allowed when the asset is tied to evidence of a crime committed, or a crime of which the suspect is accused, demonstrated by conviction in a criminal court. Only after full adjudication of the case and conviction of or guilty plea by the accused should asset forfeiture be considered.
Due process is the foundation of American civil liberty and asset forfeiture laws should follow that due process requirement.