I have read with interest the letters and editorials over the past several months regarding civil asset forfeiture in Kansas, including misconceptions about the state of asset forfeiture and the forfeiture process in Kansas.
I agree with the concept that the state should give better direction to law enforcement agencies on the acceptable uses of forfeited assets. This has long been done with assets forfeited in the federal system, as listed in “The Guide to Equitable Sharing for State and Local Law Enforcement Agencies.” This guide defines the acceptable and unacceptable uses of shared equitable assets and was long the guideline for the use of assets by the Wichita Police Department, from both state or federal forfeitures.
There is a misconception that forfeiture can occur for any crime. Kansas state statute 60-4101 et seq. deals with asset forfeiture. Included in this statute are the 27 covered Kansas crimes where a forfeiture action may be instituted.
The statute also dictates that forfeiture in Kansas can occur in only one of two ways: a criminal court action where the item sought in the forfeiture is included in the criminal indictment, or through a civil court action.
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In every forfeiture instance, the district courts are involved in the process, and a District Court judge renders the final determination on the whether a seized asset or assets are to be forfeited or not. The determination as to whether a forfeiture action is filed in a criminal case or a civil case is up to the discretion of the district attorney’s office that reviews the case.
In Sedgwick County, it has long been the established practice that one assistant district attorney reviews a criminal case, while any connected forfeiture request is reviewed by a second, different assistant district attorney. This allows each person to review the specific allegations to determine if, indeed, probable cause exists for legal action.
In either a criminal or civil forfeiture action, the asset or assets are, in essence, the defendant in that action. The court looks at whether these assets were either the proceeds of one of the 27 authorized crimes or were used for the facilitation of one or more of those criminal acts. After doing so, the court then renders it decision based on the facts of the case.
In a criminal case, the conviction of any particular defendant is based on the evidence of that particular defendant’s actual participation in the charged criminal activity. It is the same with a forfeiture action. The assets forfeit ability is based on the evidence that each individual asset in the case is either proceeds or was used to facilitate the actual forfeitable crime.
Like most things, there are areas where the forfeiture process can and should be improved. But changes to the law proposed by Rep. Gail Finney, D-Wichita, including requiring the conviction of an individual, is akin to saying that in a multiple defendant criminal case, it takes a conviction of one individual to convict the others. In our system of justice, it has long been the standard that each defendant is judged on the merits of the evidence against him and him alone.
Gregory Dalton is a retired asset forfeiture detective with the Wichita Police Department.