WHY NOT CUT THE JUDGE IN FOR A SHARE OF SEIZED DRUG ASSETS?


   We ask, with tongue in cheek, why aren’t judges entitled to benefit from cases in which they permit the assets of persons convicted of controlled substance violations.  Surely they could squeeze say a 10% commission to the trial judge who makes important rulings on the drug case, and maybe the legislature should give 5% to appellate judges reviewing these cases.
   If such a procedure shocks your conscience then maybe you are endowed with a healthy degree of skepticism about a procedure that is supposed to be “fair and impartial’.
While the legislature is not likely to go so far as to provide a financial incentive to judges to obtain drug convictions (thereby bringing their impartiality into question), our legislators have not had a problem in providing such a tempting incentive to local law enforcement agencies and local prosecutors.
  Prosecutors and local police agencies are given a cash incentive to make drug busts and obtain convictions of persons who possess property involved in the illegal sale or possession of controlled substances.  They are likely to benefit when their testimony helps to convict an accused drug dealer.  On the other hand, if they give testimony helpful to the accused drug dealer, and he is acquitted, then the law enforcement agency loses out.
  These agencies are seizing cars, boats, homes and cash in sums believed to annually be valued in the millions. These same agencies are charged with protecting citizens constitutional rights.
One must raise an eyebrow and question whether this cash incentive might be too much of an incentive to those who must support their arrests with testimony required to obtain search and arrest warrants, and who must give testimony at suppression hearings and at trial of the defendant.  “Oh yes judge, while it was dark outside, I could clearly see that he was not wearing his seatbelt…and that is why I pulled him over.?
This cash incentive doesn’t personally go to the police officer or prosecutor, but it does go to his office, and may result in the upgrade of the official vehicle he drives and the upgrade of his equipment and office furniture, and neat swat weapons that are fun to play with.
We noticed the Sheriff of one Northern Ky. County who regularly drove to work a nearly new SUV which had a sign painted on the side which proudly proclaimed ?this vehicle paid for with seized drug funds?.
When the local law enforcement agency makes a drug bust, and valuable property is involved, it can provide a rich payday for his agency.  Their agency may under KRS 218A.435 retain up to 90% of the proceeds derived from the seizure, and may retain 100% of the value of any motor vehicles seized.  The local prosecutor (either County Attorney or Commonwealth’s Attorney) may retain 10% for their office.
We do not suggest that drug dealers should be able to keep the property purchased with their ill gotten gains, but why not legislate that funds derived from seized drug profits go to the General Fund, or to fund increased drug treatment programs?
    SB 88 as Amended would increase by 5% the amount of drug forfeiture funds going to the local prosecutor.  This would allow the prosecutors office to retain 10% of seized drug assets.    The amount of forfeited drug proceeds going to the law enforcement agency making the arrest would go from 90% to 80%.
  
AMENDMENT:
“…amend of KRS 218A.435 relating to asset forfeiture to change the formula to 80 to seizing law enforcement agency, 15 to the office of the prosecutor prosecuting the case or to the Attorney General if the Attorney General prosecuted the case; make technical correction relating to proceeds from vehicle sale by a law enforcement agency.?
CURRENT LAW:
KRS 218A.435 Asset forfeiture trust fund — Management — Distribution.
(1) There is created a trust and revolving fund in the executive branch of state
government to be known as the “Asset Forfeiture Trust Fund” referred to in this
section as the “trust fund.”
(2) The trust fund shall consist of proceeds from sale of property forfeited to the
Commonwealth pursuant to KRS 218A.410, any moneys as may be appropriated by
the General Assembly, and any investment interest earned on the fund. The moneys
in this fund are intended to supplement any funds appropriated by the General
Assembly to the agency which will receive disbursements from the trust fund as
provided in this section.
(3) The trust fund shall be managed by the state Office of Financial Management and
all moneys in excess of the amount to be disbursed in a given fiscal year shall be
invested to maximize returns. The principal and any interest earnings of the trust
fund shall at no time lapse to the general fund.
(4) The trust fund shall be administered and audited by the Justice Cabinet. The
secretary of justice or his designee shall promulgate administrative regulations
necessary to further the purposes of KRS 218A.405 to 218A.460.
(5) The trust fund shall be disbursed in accordance with the provisions of subsection (6)
of this section. All interest accumulated on the fund shall immediately be available
for disbursement to the Justice Cabinet for costs associated with administration of
the fund.
(6) The Justice Cabinet shall, upon advice from the Office of Financial Management,
allocate the moneys in the fund quarterly, on a percentage basis, as provided in
subsection (7) of this section.
(7) The principal of the trust fund shall be distributed as follows:
(a) Eighteen percent (18%) of the funds received in any fiscal year shall be
allocated to the unified prosecutorial system to be disbursed by the Attorney
General to those Commonwealth’s attorneys or county attorneys who have
participated in the forfeiture case;
(b) Thirty-six percent (36%) of the funds received in any fiscal year shall be
allocated to the Cabinet for Health and Family Services to be used solely for
the purpose of drug and alcohol abuse education, prevention, and treatment;
(c) Thirty-six percent (36%) of the funds received in any fiscal year shall be
allocated to the Department of Corrections to be used solely for programs
related to drug enforcement and incarceration; and
(d) Ten percent (10%) of the funds received in any fiscal year shall be allocated to
the Justice Cabinet to be used solely for the purpose of: training related to
asset forfeiture; printing program-related training materials, such as manuals
or handbooks; or payments to state or local agencies for programs relative to
crime prevention, drug abuse prevention, general law enforcement purposes,
or other similar purposes relating to drug enforcement.
(8) The Attorney General, the secretary of the Cabinet for Health and Family Services,
the commissioner of the Department of Corrections, and the secretary of the Justice
Cabinet or their designees shall each promulgate administrative regulations which
itemize the programs on which the moneys allocated from the trust fund to their
respective agencies shall be spent and the method by which those moneys shall be
disbursed to local entities.
(9) On July 13, 1990, each state and local law enforcement agency which seizes
property for the purpose of forfeiture under KRS 218A.410 shall, prior to being
eligible for the receipt of grants from the trust fund, adopt policies relating to the
seizure, maintenance, storage, and care of property pending forfeiture which are in
compliance with or which substantially comply with the model policy for seizure of
forfeitable assets by law enforcement agencies published by the Department of
Criminal Justice Training. However, a state or local law enforcement agency may
adopt policies that are more restrictive on the agency than those contained in the
model policy and that fairly and uniformly implement the provisions of this chapter.
(10) On July 13, 1990, each state or local law enforcement agency which seizes property
for the purpose of forfeiture under KRS 218A.410 shall, prior to being eligible to
receive grants from the trust fund, have one (1) or more officers currently employed
attend asset-forfeiture training as approved by the Kentucky Law Enforcement
Council which shall approve a curriculum of study for asset-forfeiture training.
(11) Other provisions of this section notwithstanding, any vehicle seized by a law
enforcement agency which is forfeited pursuant to this chapter may be retained by
the seizing agency for official use or sold within its discretion. Proceeds from the
sale shall remain with the agency and shall not be paid into the trust fund and shall
not be considered for purposes of the limits established in subsection (12) of this
section. The moneys shall be utilized for purposes consistent with KRS 218A.405
to 218A.460. The seizing agency shall be required to pay any bona fide perfected
security interest on any vehicle so forfeited.
(12) Other provisions of law notwithstanding, the first fifty thousand dollars ($50,000)
of forfeited coin or currency or of the proceeds from sale of any property forfeited
pursuant to this chapter which was seized or forfeited by a single order of forfeiture,
shall not be paid into the fund but ninety percent (90%) (SB 88 would Amend to 80% ) shall be paid to the law
enforcement agency or agencies which seized the property to be used for direct law
enforcement purposes
 

and ten percent (10%) (SB 88 would Amend to 15%) to the office of the Commonwealth’s
attorney or county attorney who has participated in the forfeiture proceeding. The
moneys are intended to supplement any funds appropriated to the recipient and shall
not supplant other funding of any recipient.

 In addition, forty-five percent (45%) of all proceeds above fifty thousand dollars ($50,000) shall not be paid into the fund but shall be retained by the law enforcement agency or agencies which seized the property to be used for direct law enforcement purposes.
(13) When money or property is seized in a joint operation involving more than one (1)
law enforcement agency, or prosecutorial office, the apportionment of funds to each
pursuant to subsection (7)(a) of this section, or pursuant to subsection (12) of this
section, shall be made among the agencies in a manner to reflect the degree of
participation of each agency in the law enforcement effort resulting in the forfeiture,
taking into account the total value of all property forfeited and the total law
enforcement effort with respect to the violation of law on which the forfeiture is
based. The trial court shall determine the proper division and include the
determination in the final order of forfeiture.
Effective: June 20, 2005
History: Amended 2005 Ky. Acts ch. 99, sec. 552, effective June 20, 2005. — Amended
1998 Ky. Acts ch. 426, sec. 492, effective July 15, 1998. — Amended 1992 Ky. Acts
ch. 211, sec. 80, effective July 14, 1992. — Amended 1990 Ky. Acts ch. 445, sec. 6,
effective July 13, 1990. — Created 1984 Ky. Acts ch. 101, Ky. Acts ch. 6, effective
July 13, 1984.
Legislative Research Commission Note (6/20/2005). 2005 Ky. Acts chs. 11, 85, 95, 97,
98, 99, 123, and 181 instruct the Reviser of Statutes to correct statutory references to
agencies and officers whose names have been changed in 2005 legislation confirming
the reorganization of the executive branch. Such a correction has been made in this section.
ANNOTATION FOR THIS STATUTE:
  
1.
Commonwealth v. Commonwealth, No. 2003-CA-000392-MR (KY 5/28/2004) (KY, 2004) Title to all property, including all interests in the property, forfeit under this section vests in the Commonwealth on the commission of the act or omission giving rise to forfeiture under this section together with the proceeds of the property after the time.
3. Harbin v. Commonwealth of Kentucky, 2000-SC-0730-MR (Ky. 12/18/2003) (Ky., 2003) Following conviction of a defendant for any violation of this chapter, the court shall conduct an ancillary hearing to forfeit property if requested by any party other than the defendant or the Commonwealth. The Commonwealth’s attorney, or the county attorney if the proceeding is in District Court, shall initiate the hearing by filing a motion requesting entry of a final order of forfeiture upon proof that the property was being used in violation of the provisions of this chapter. The final order of forfeiture by the court shall perfect in the Commonwealth or appropriate law enforcement agency, as provided in KRS 218A.435, right, title, and interest in and to the property. The Commonwealth may transfer any real property so forfeited by deed of general warranty.

 

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