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Asset forfeiture law needs reform in Kansas

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By Samuel G. MacRoberts

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.

Consider what happened to Barbara Reese, a small-business owner stopped by law enforcement in 1995 on the way to an auction. They seized her cash. It took almost 25 years and an official act of the Legislature before Ms. Reese got her money back, even though she wasn’t charged with a crime. It shouldn’t take this sort of legislative intervention to protect the rights of Kansans.

Kansas’ forfeiture law is flawed because it stacks the deck in favor of the government. It’s up to the property owner to prove their innocence 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 state-wide investigative bureau, and even access to federal authorities. It also has teams of lawyers.

Another critical flaw in Kansas’ forfeiture law is that a jury of your peers never gets to hear the case, only a judge. The right to a jury trial is fundamental. It’s so important that the Kansas and the U.S. Constitutions include 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, which offers more accountability and is fairer.

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

So where do we go from here? The Kansas founders purposefully included 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. That very well 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 Supreme Court said more than 50-years ago, in Mapp v. Ohio, “[n]othing 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 general counsel and litigation director for the Kansas Justice Institute

Read more here: https://www.kansas.com/opinion/guest-commentary/article232327927.html#storylink=cpy

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