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Re:
Chairman Finch and Committee on the Judiciary
Keri Strahler
1/24/2017
HB2018, requiring conviction before asset forfeiture
Dear Chairman Finch and Committee Members:
We learned last summer that law enforcement agencies are using forfeited dollars to
cover payroll, general equipment, IT and cellphones, necessities to do their jobs effectively, yet
Kansas law 60-4117 states that these dollars are not to be used as a revenue source for normal
operations. However, with their growing dependence on these dollars, we must protect the
people that you represent from abusive seizures.
HB2018, a bill that requires a conviction before forfeiture of assets, does just that through
safeguarding our 8th Amendment protection from cruel and unusual punishment, and a 6th
Amendment right to a ‘counsel of choice.’
Our federal courts use criminal asset forfeiture, but like civil asset forfeiture, assets are
similarly removed from the defendant before trial. They’re frozen as the court’s assumption
through probable cause suggests that one’s property must be ill-gotten gains.
Common law dictates that one is innocent until proven guilty, but this freezing of assets
hints at a presumption of guilt as it serves to punish the defendant for being charged with a crime
by removing monetary access to a Sixth Amendment protection.
Of an 8th Amendment concern, we look to ​Austin
​ v. United States where it was held that
indeed, forfeiture
​ is a punishment.​ “​Forfeiture under 21 U.S.C. §§881(a)(4) and (a)(7) is a
monetary punishment and, as such, is subject to the limitations of the Excessive Fines Clause.​”
As to a 6th Amendment violation, ​from the Cornell University Law School, ​“[t]he Sixth
Amendment has also been held to protect absolutely the right of a defendant to retain counsel of
his choice and to be represented in the fullest measure by the person of his choice.”
Justice Blackmun expands on this finding in ​Caplin & Drysdale, Chartered v.United
States ​as “the majority pauses hardly long enough to acknowledge ‘the Sixth Amendment's
protection of one's right to retain counsel of his choosing,’ let alone to explore its ‘full extent.’
Instead, it moves rapidly from the observation that 'a defendant may not insist on representation
by an attorney he cannot afford,' quoting
​
​Wheat v. United States, to the conclusion that the
Government is free to deem the defendant indigent by declaring his assets ‘tainted’ by criminal
activity the Government has yet to prove.”
The current policy of civil asset forfeiture mirrors his concern as Kansans that have lost
their assets before going to trial are reduced to declaring a financial affidavit for an indigent
defense and I humbly ask that you consider the rights of your constituents and adopt HB2018.
Sincerely,
Keri Strahler
1015 NE Kellam Avenue
Topeka, Kansas 66616
785-250-2642