Ky. seizure laws under scrutiny by local lawmaker

Kentucky law requires police and sheriff departments to report how much property and cash they seize and keep as the result of criminal investigations.

But an Enquirer investigation found fewer than 30 percent of such agencies around the state actually sent in such accounts last fiscal year under a system that state officials describe as “sporadic” at best.  

It’s possible only 30 percent of agencies in the state seized property and cash, but state officials say that’s unlikely. Also, the reporting doesn’t indicate how the agencies seized or kept the property or cash – or even if seizures resulted in convictions.

Those stats, or lack thereof, as well as other loopholes in the law have a local legislator looking to possibly reform state seizure and forfeiture rules.

“We need tighter guidelines … we have some types of property that is protected and some that is not under these statutes,” said state Rep. Diane St. Onge, R-Lakeside Park. “There are several issues here that need to be addressed. And we need more transparency into this process, which certainly shows several opportunities for abuse.”

St. Onge has until March 1 to file any new legislation for the current session of the General Assembly. She said is creating an informal committee including law enforcement, prosecutors and civil rights advocates to discuss possible changes, and acknowledges that she may not be able to file anything this year.

She said she has seen no sign of abuse or wrongdoing by either police or Commonwealth Attorneys, but the possibility still exists. And she added that even if she can’t file this year, she will work on it and eventually file some sort of reform legislation.

Such a measure would come as civil and criminal forfeiture laws are coming under scrutiny nationwide.

In fact, a local Ohio state legislator, Rep. Thomas Brinkman, R-Mount Lookout, co-sponsored a bill in the Ohio legislature last year that would require a criminal conviction for any such forfeiture. And unlike Kentucky, Ohio does not have a reporting requirement, and local law enforcement agencies can keep 100 percent of what they are able to seize and forfeit.

Law enforcement agencies throughout Kentucky seized nearly $17 million from suspected criminals over the past two years, and were allowed to keep nearly $6 million of that cash, including some kept without the owner of the property being charged or convicted of a crime. This is according to statistics acquired by The Enquirer last week. The numbers include nearly $2.2 million taken by local agencies between 2011 and 2015, with those police and sheriff’s departments keeping more than $240,000 of that cash.

Under state law, such departments can seize and keep cash or property one of two ways. First, prosecutors can go through criminal court after getting a conviction for anything other than drug crimes.

But Kentucky’s anti-drug laws also allow for a second process. Under that, police can take property believed to be either involved in drug crimes. Then they can use a complicated civil procedure that still calls for a drug conviction that can be either a felony or misdemeanor. But the property doesn’t need to belong to the convicted person to be kept. And the property’s owner has the burden to prove that the property or cash was not involved in the crime, a burden that is higher than the ones used by the police who took the goods in the first place.

St. Onge said her biggest concerns with Kentucky’s existing seizure and forfeiture laws are twofold:

  • The law gives real estate property owners the right to contest a seizure, or when the police actually try to take control of a house or building. Owners of other property that is seized, including cash and vehicles, don’t get that level of protection and instead have to be contested through a forfeiture hearing where the owner has the burden of proof that the property is “innocent” of being involved in a crime, a burden that is higher than the ones the police have to take the property in the first place. “And if $2,000-$3,000 is taken, the cost of getting it back in terms of lawyers and legal fees is prohibitive for a lot of people,” St. Onge said.
  • The state’s anti-drug laws mandate a drug felony conviction before any property can be actually forfeited. But it does not specify that the property needs to belong to the person being convicted. St. Onge said that could create confusion, especially if a vehicle or other property were used without its original owner’s consent

She added that the low reporting rate by local agencies also troubled her: “It does cause me to pause … we have to make sure what can be implemented to make sure everyone complies with the requirements.”

St. Onge’s district also includes the Cincinnati/Northern Kentucky International Airport, where a federal task force of 13 local police departments have earned more than $7.5 million under federal laws over between 2010 and 2015 under the equitable sharing program that allows local agencies to keep 85 percent of what they seize if they can get it through the forfeiture process.

The U.S. Justice Department suspended that program in January, however, and some experts and criminal justice reform advocates think that local agencies will turn to state laws instead to raise revenues.

“Police departments across the country have already shown by the protest around the federal suspension that this is more about revenue than about law enforcement,” said Lee McGrath, legislative counsel for the Washington-based Institute for Justice, a nonprofit judicial advocacy group. “And in many cases, including Kentucky and Ohio, the state laws allow for even more incentive because they can keep more of the money for themselves.”

The institute has published several reports on seizures and forfeitures, giving Kentucky’s laws a D-minus grade even though the state is among 24 nationally that require some sort of reporting of seizures and forfeitures. Lawyers with the organization are also representing Charles Clarke III, a Cincinnati native who had $11,000 seized by members of the federal drug task force at CVG in 2014 even though he was never charged with any drug crimes.

As for the low reporting numbers, Kentucky Justice Cabinet officials say that they are trying to get more agencies to report their state seizures and forfeitures, and the response rate has improved. In fiscal year 2015, 166 agencies reported as compared with just 55 in fiscal year 2011. As more agencies reported, the amounts seized and awarded have also grown, up more than tripling between 2011 and 2015.

“We do believe the reporting has gotten better, but we still have a long way to go,” said Van Ingram, executive director of the Kentucky Office of Drug Control Policy, which oversees the seizure reporting.

Locally, 17 agencies reported some type of seizure or forfeiture in fiscal year 2015, led by Covington with $1.9 million seized and nearly $146,000 actually awarded to the department – including that single seizure of more than $1.9 million. (Agencies must contribute 15 percent of any forfeitures to their local Commonwealth Attorney’s office. Those prosecutors then send the money to a fund in Frankfort overseen by the Attorney General’s office that can be used by prosecutors around the state for all types of expenses save payroll).

Other local departments reporting included the Boone County Sheriff’s office with nearly $24,000 seized in fiscal year 2015 and about $3,000 forfeited; Elsmere Police with $22,375 seized and $6 kept; and the Florence Police Department, which seized and kept $5,540. The Northern Kentucky Drug Strike Force seized $50,739 and was able to keep $103,565 because of cases from the previous year. CVG police seized and was awarded about $13,000.

Officials with the Covington Police Department and the Boone County Sheriff’s Department did not return messages seeking comment. Kenton County Commonwealth Attorney Rob Sanders as well as Linda Tally Smith, the Commonwealth Attorney for Boone and Gallatin counties, also did not return messages seeking comment.

Statewide, the average seized per department was $24,617 outside of that $1.9 million take by the Covington police. Individual seizures were as small as $38 over the last few years, according to the records obtained by The Enquirer, with property ranging from car tools to lawn trimmers to Playstation gaming systems also seized and sold at auction.

McGrath said that shows the tactic “isn’t about trying to slow down international drug cartels like law enforcement likes to say.”

“If that was the case, we’d see a lot fewer seizures with much higher amounts,” McGrath said.

Newport Police Chief Tom Collins, whose department seized $18,311 and was able to keep $3,328 last fiscal year, said he welcomes any reforms to the system.

“I really disagree with the whole premise of police being able to take money from citizens without an arrest,” Collins said. “And we certainly don’t look for this kind of money to fill our budgets.”

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