Higher bar to forfeit real property, but low bar for other property; no conviction required
Limited protections for innocent third-party property owners
100% of forfeiture proceeds go to law enforcement
State Forfeiture Laws
Kentucky’s civil forfeiture laws are in dire need of reform, earning a D-. While the government must show clear and convincing evidence to forfeit real property, such as a family home or tract of land, it need only demonstrate “slight evidence of traceability” to a crime—a standard akin to probable cause—to forfeit all other types of property. Owners can challenge this finding, but they must provide clear and convincing evidence of the property’s innocence. And innocent owners bear the burden of proving that they were not involved in any criminal activity in order to recoup their property. However, in innocent owner claims involving real property, the onus shifts to the government. Finally, Kentucky law enforcement agencies enjoy virtually unbridled access to forfeiture funds—they receive 100 percent of the proceeds from forfeiture.
Law enforcement agencies must report to the state a detailed listing of all property seized and forfeited under controlled substances laws. The Office of Drug Control Policy compiles this data at the state level; however, of the more than 400 agencies with the authority to forfeit property, only 14 percent reported forfeitures. The Institute for Justice obtained these data with a Kentucky Open Records Act request. Between fiscal years 2007 and 2014, reporting law enforcement agencies forfeited more than $15 million worth of cash, cars, weapons and real property, but these figures likely severely undercount the true amount forfeited.
State Law Sources
Standard of proof
Government must show clear and convincing evidence to forfeit real property but need only show “slight evidence of traceability” to a crime for other property, at which point the owner must show the property’s innocence by clear and convincing evidence. Ky. Rev. Stat. Ann. § 218A.410(1)(j); Robbins v. Commonwealth, 336 S.W.3d 60, 64–65 (Ky. 2011).
Innocent owner burden
Owner, except in the case of real property. Ky. Rev. Stat. Ann. § 218A.410(1)(j); Robbins v. Commonwealth, 336 S.W.3d 60, 64–65 (Ky. 2011).
100 percent. Ky. Rev. Stat. Ann. § 218A.420(4).
Seizing agencies must report their forfeitures to the Office of the State Auditor and to the secretary of the Justice and Public Safety Cabinet. Ky. Rev. Stat. Ann. § 218A.440.
Kentucky ranks 33rd for federal forfeiture, with over $66 million in Department of Justice equitable sharing proceeds from 2000 to 2013.
State Forfeiture Data
Average per year
Source: Reports of forfeitures from law enforcement agencies compiled by the Office of Drug Control Policy and obtained through a Kentucky Open Records Act request. Of the more than 400 agencies with the authority to forfeit property, only 14 percent reported data. These figures represent the fiscal-year forfeitures for the reporting agencies.
Federal Equitable Sharing
Kentucky law enforcement agencies received over $66 million in Department of Justice equitable sharing proceeds between the 2000 and 2013 calendar years, earning their state a 33rd-place ranking. The lion’s share—83 percent—of these proceeds came from joint task forces and investigations, the equitable sharing procedures largely unaffected by the DOJ’s 2015 policy change. Kentucky law enforcement also gained $6.8 million in equitable sharing proceeds from the Treasury Department.raging almost $325,000 a year.