J. Justin Wilson
J. Justin Wilson · April 4, 2018

Kansas Gov. Jeff Colyer signed a bill on Monday that will bolster transparency for the state’s secretive seizure and forfeiture activity. Under civil forfeiture, law enforcement agencies can seize and then take title to cash, cars and other valuables without charging anyone with—let alone convicting them of—a crime.

“Kansas now has one of the best forfeiture transparency laws in the Midwest, which will play a vital role to keep both the public and the legislature well-informed about civil forfeiture,” said Institute for Justice Senior Legislative Counsel Lee McGrath. “After all, sunlight is the best disinfectant.”

The newly signed bill, HB 2459, will enact several reforms to bolster transparency:

  • Agencies must report where and when a seizure occurred, the value of the property seized, if any criminal charges were filed in connection with the seizure, the total cost of the forfeiture action, and the amount of proceeds generated from a forfeited property.
  • Law enforcement agencies will also have to report their forfeiture fund balance, the total amount of deposits, and list, by category, any forfeiture-fund expenditures that were made.
  • All seizure, forfeiture, and forfeiture fund records will be sent to a new repository and public website that will be created by the Kansas Bureau of Investigation.
  • To ensure compliance with the new reporting requirements, the state can suspend filing forfeiture proceedings for any property that was seized by a noncompliant agency.

Previously, to get an accurate picture of forfeiture activity in the Sunflower State would require submitting a Kansas Open Records Act request to every law enforcement agency or budgetary authority in the state and then compiling those records—a gargantuan hurdle.

For instance, the Institute for Justice filed an open records request with the Kansas Highway Patrol to learn more about the KHP’s seizure activity and forfeiture expenditures. That one records request took more than five months to fulfill and cost over $500.

According to those records obtained by IJ, the Kansas Highway Patrol spent over $1.36 million in state and federal forfeiture proceeds on salaries and overtime between 2009 and 2015. The KHP also spent nearly $2.7 million in federal forfeiture proceeds during that time on a troop headquarters near Wichita. Under HB 2459, it should be much easier to collect these types of records from any agency and expose potentially troubling behavior.

Backed by the ACLU of Kansas, the Institute for Justice and local advocates, HB 2459 received broad, bipartisan support, passing the Senate unanimously and the House by a vote of 110 to 7.  In addition to increasing transparency, the bill will reform the state’s civil forfeiture process by:

  • Banning prosecutors from referring forfeiture cases to attorneys with whom they have a financial conflict of interest;
  • Doubling the amount of time a property owner has to file a claim, by raising the deadline to file from 30 to 60 days of receiving notice; and
  • Repealing burdensome requirements that stop property owners from filing claims.

Although these reforms are all welcome steps in the right direction, HB 2459 leaves many problems left unsolved. People can still lose their property without being convicted of a crime. Just as troubling, law enforcement can still keep up to 100 percent of the proceeds from what they forfeit, creating a perverse incentive to confiscate property.

“By itself, improved transparency cannot fix the fundamental problems with civil forfeiture—namely, the property rights abuses it permits and the temptation it creates to police for profit,” noted Jennifer McDonald, an IJ research analyst who co-authored a report on forfeiture transparency and accountability. “Transparency is no substitute for comprehensive forfeiture reform, but it is still vitally important to bring forfeiture activity and spending into the light of day.”

Nationwide, 28 states and Washington, D.C. have tightened their forfeiture laws since 2014. Most sweeping of all, both Nebraska and New Mexico outright abolished the practice of civil forfeiture and replaced it with criminal forfeiture.