The Wisconsin Senate Committee on Labor and Regulatory Reform is considering a bill to reform the state’s laws on civil asset forfeiture.
With a few exceptions, Senate Bill 61 (SB 61) would require law enforcement agencies and prosecutors to obtain a criminal conviction before transferring ownership of seized assets or property to the government, and it would increase the confidence level required for forfeiture, from mere “reasonable certainty” to “clear and convincing” evidence.
On July 5, state agencies, including the Wisconsin Department of Justice (DOJ), submitted fiscal estimates to the committee. DOJ projects the bill would reduce annual government revenue by $2.5 million to $3.5 million. The committee has not scheduled a vote on the bill
SB 61’s sponsor, state Sen. David Craig (R-Town of Vernon), says his bill would make significant changes to the state’s process.
“The most important changes are requiring a criminal conviction prior to forfeiture, protecting innocent owners, mandating proportionality, and placing reporting requirements on the process,” Craig said.
‘Glaring Violation’ of Constitution
Any abuse of Wisconsin residents’ constitutional rights is one too many, Craig says.
“Wisconsin does not have nearly the same number of stories of forfeiture abuse as other states,” Craig said. “However, the mere fact that Wisconsin law allows private property to be forfeited by the government without conviction is a glaring violation of the Constitution, requiring reform.”
The idea has bipartisan support, Craig says.
“Members of both parties recognize the importance of ensuring everyone has full rights of due process before property can be forfeited,” Craig said.
Incentives for Abuse
Jeff Holcomb, a professor of criminal justice at Appalachian State University, says the current criminal justice system incentivizes policing for profit, not protection.
“The rewards for the police increase as the law in that jurisdiction allows the police to keep an increasing percentage of the proceeds from civil asset forfeiture activity,” Holcomb said. “In many states, and under federal equitable sharing, local police keep 100 percent of the proceeds from forfeiture.”
Many law enforcement agencies oppose civil asset forfeiture reform because of the financial boon the status quo provides them, Holcomb says.
“The fact that the law enforcement community vigorously opposes efforts to reform these laws provides pretty clear evidence that these laws provide real financial rewards to law enforcement,” Holcomb said. “It raises questions about the limits of governmental power and individual rights, especially property rights.”
Keys to Reform
Any civil asset forfeiture reform bill should make three key changes, Holcomb says.
“First, states must eliminate the direct financial benefit to law enforcement,” Holcomb said. “The proceeds could go to the general fund, education, or some combination of social services, but not directly to the police. Second, the standard of proof necessary to declare property forfeit should be increased.
“In many states and under federal equitable sharing, it is only necessary to establish guilt at a preponderance of the evidence,” Holcomb said. “Preponderance of the evidence basically means ‘more likely than not.’ This is a very low standard for the government to take away someone’s property.”
State lawmakers should resist the federal government’s encouragement of civil asset forfeiture, Holcomb said.
“Finally, and most importantly, states must place limits on the use of federal equitable sharing law,” Holcomb said. “Equitable sharing is a federal law that allows state law enforcement agencies to process forfeitures under federal law rather than state law.
“In other words, equitable sharing offers more financial incentives and fewer barriers than state laws,” Holcomb said.