Joco Opinion

Kansas’ unjust forfeiture law amounts to policing for profit

Samuel G. MacRoberts
Samuel G. MacRoberts

Kansas has one of the worst forfeiture laws in the nation.

Presumption of innocence. Proof beyond a reasonable doubt. Judged by a jury of your peers. These aren’t just catchphrases; they are the bedrock principles that form a fair and just legal system. However, in Kansas, you currently don’t have these rights in asset forfeiture cases.

Asset forfeiture may sound innocuous enough but in practice it’s abusive and fundamentally unjust. It’s when the government seizes money or property even without a criminal conviction.

Kansas has one of the worst forfeiture laws in the nation. The Kansas Legislature had the opportunity to fix the problems this session but didn’t. The problems are plentiful and need immediate correction.

The law stacks the deck in favor of the government because it’s up to property owners to prove their innocence in court. Conceptually, this runs contrary to our notion of fairness. When the government takes something, it should articulate why it has done so, under what authority it acted and be able to prove it all in court. The government needs to justify itself, not the other way around.

Practically, the government has far more resources at its disposal than the average citizen: an entire police force, a statewide investigative bureau, and even access to federal authorities. It also has teams of lawyers.

Second, a jury of your peers never gets to hear the case — only a judge. This is a critical flaw in Kansas’ forfeiture law. The right to a jury trial is fundamental. It’s so important the Kansas and United States Constitutions included it in their respective Bills of Rights.

The jury trial is an important component of checks and balances and it allows citizens to participate in the judicial process. Finally, by putting the case in a jury’s hands, instead of a judge’s, the government would need to convince more than just one person they’re right. This offers more accountability and is fairer.

Unfortunately, these flaws have lead Kansas down the path of “policing for profit.” It’s become far too easy and far too profitable for the government to seize your money or property.

Where do we go from here? The founders of Kansas literally wrote portions of the Declaration of Independence into the Kansas Constitution. Interpreted correctly, it should finally put an end to the law’s unfairness and inequity. And that may require putting the issue before the courts. Litigating even the smallest of cases will have a ripple effect across the state and not just in forfeiture cases.

Whether it’s occupational licensure, speech codes or countless other areas of government abuse and overreach, it’s important to hold the government accountable. It will promote respect for the rule of law and return rights back to the people.

As the U.S. Supreme Court said more than 50 years ago, in Mapp v. Ohio: “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”

It’s time the government recognizes its failure when it comes to asset forfeiture.

Samuel G. MacRoberts is litigation director and general counsel of Kansas Justice Institute, a public-interest litigation firm protecting the freedoms guaranteed by the Kansas and United States Constitutions through cutting-edge litigation.

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