Seizure and Forfeiture Laws

June 29th, 2016 by Attorney Dan Carman

When law enforcement makes an arrest or investigates a criminal offense, they have wide-ranging powers to confiscate property they believe is relevant and to hold that property on the suspect’s behalf. Under Kentucky law, police departments only have to show by a preponderance of the evidence (a standard much lower than the “beyond a reasonable doubt” standard required for criminal guilt) that the property is related to criminal activity and it can be forfeited. Furthermore, a conviction is not required prior to taking property and the total value of any forfeited assets goes to law enforcement, creating an atmosphere of “policing for profit.”

There are more than 570 law enforcement agencies in Kentucky, and they are legally required to report how much property and cash they seize and keep as the result of criminal investigations. Last year, only 164 of those agencies sent in reports – that’s less than 30 percent – and while it’s possible that those were the only agencies that seized property in 2015, it’s also highly unlikely. Still, that number is an improvement over 2011, when only 55 agencies reported. Over the past two years, law enforcement agencies throughout the Bluegrass State seized nearly $17 million from suspected criminals and were allowed to keep nearly $6 million of that cash, including some kept without the owner’s being charged or convicted.

The possibility of wrongdoing exists in this largely opaque process, especially given the low reporting rate. The Institute for Justice, a nonprofit judicial advocacy group, gave Kentucky’s laws on seizures and forfeitures a D-minus grade. According to the records obtained by the Cincinnati Enquirer, individual seizures were as small as $38 over the last few years and included property ranging from car tools to lawn trimmers to PlayStation gaming systems.

With seizures such as these, it’s hard to see how the tactic is doing much to fight crime.

Agencies must contribute 15 percent of any forfeitures to their local Commonwealth Attorney’s office, which then deposits the money in a fund overseen by the Attorney General’s office; the money is used by prosecutors around the state for various expenses (except payroll). Up until January of this year, there was also an equitable sharing program for local agencies that worked with federal law enforcement which allowed them to keep 80 percent of what they seized. The U.S. Justice Department suspended the program due to budget cuts, leaving many agencies to express a belief that forfeitures are a way to raise funds, not stop crime. And suspension of the program does little to rein in or redefine the seizure and forfeiture process — money and property can still be confiscated, but local agencies simply no longer get a share if they participate in the action.

If you have any questions about this topic or about your rights regarding property that has been seized or forfeited, you can find out more by discussing it with one of the attorneys at the Lexington, KY-based Carman Law Firm. As criminal defense lawyers with years of experience, we offer thorough, experienced representation. Call today at (859) 685-1055 or fill out this online contact form to find out how we can help you.