Research & Commentary: Wisconsin Should Continue Efforts to Improve Civil Asset Forfeiture Laws

Published February 1, 2017

Wisconsin legislators are considering new legislation that would tighten state regulations governing the ability of law enforcement officials to seize private property from suspected criminals. Civil asset forfeiture, also known as civil judicial forfeiture, is a controversial legal process through which law enforcement agencies take personal assets from individuals or groups merely suspected of a crime or illegal activity. Three states have essentially abolished the practice of asset forfeiture – Nebraska, New Mexico, and North Carolina – and more than a dozen other states have made significant forfeiture reforms.

Compared to most states, Wisconsin’s civil asset forfeiture laws are strong. The state earned a “B” grade in a 2015 study of civil asset forfeiture by the Institute for Justice (IJ). IJ commended Wisconsin on its limits on how forfeiture proceeds are utilized. However, Wisconsin’s civil asset forfeiture laws are still in need of improvement. Currently, there isn’t a strong standard of proof required for seizure. State law only requires the government to have “reasonable certainty by the greater weight of the credible evidence” that property is tied to a crime in order to seize it, a standard of proof IJ equates to the preponderance of the evidence standard used in civil cases. IJ also notes innocent property owners are required to demonstrate their noninvolvement with the illegal use of their property to reclaim it.

Wisconsin is considering a proposal that would require forfeitures to be tied to a criminal conviction, and forfeitures would have to be proportional to the offense committed. The proposal would also increase the required time given to owners before seizures could be made and would make it easier for disputes to be heard by a judge. Another major change under the new proposal would require all proceeds from forfeitures to go to Wisconsin’s school fund.

Proponents of forfeiture argue it allows law enforcement agencies to use seized assets toward their enforcement efforts, transforming property illicitly gained by criminals into resources to be used for public benefit. Critics of the process note it gives law enforcement agencies economic incentives to seize property, corrupting them and penalizing innocent property owners. “Civil asset forfeiture reform is an important step to ensure that no person is, ‘deprived of life, liberty or property, without due process of law’ as guaranteed by the Fifth Amendment,” said Sen. Dave Craig, (R-Vernon), the chief sponsor of the bill, to the Milwaukee Journal-Sentinel. “Criminal justice policy should focus on punishing the convicted, not raising revenue. Our bill accomplishes that.”

Wisconsin’s civil asset forfeiture law lacks the transparency needed to keep seizures in check. Wisconsin law enforcement agencies are not currently required to track or report their forfeitures. Critics of the law cite numerous anecdotal examples of forfeiture abuse. One example cited by the American Civil Liberties Union occurred in Whitewater, Wisconsin.

In 2015, a state appellate court found that seizure was unconstitutional because due to its excessive nature. In that controversial case, police seized a vehicle worth $22,500 over a small drug solicitation offence. The value of the drugs sold did not exceed $250. The new bill addresses this problem; law enforcement officials can still seize assets linked to a crime, but the seizure must be proportionate to the crime.

Scott Bullock, senior attorney at the Institute for Justice, advocates eliminating forfeitures altogether, except in cases of maritime and customs law. Assets should be seized only when crimes have been committed and convictions have been made, and law enforcement officials should not be incentivized to seize any more property than is necessary and justified. Wisconsin has done well in limiting the incentive for police to seize for profit, but more work needs to be done. The proposed laws in Wisconsin are a step in the right direction.

The following documents provide additional information about civil asset forfeiture.

Playing Both ‘Cops and Robbers’ on Asset Forfeiture
Jesse Hathaway, managing editor of Budget & Tax News, examines in this article a new digital system that allows highway patrolmen to use civil asset forfeiture laws to seize individuals’ assets stored in bank accounts or on prepaid debit cards at the press of a button. “Civil asset forfeiture creates too many perverse economic incentives. However well-intentioned the idea may be, the practice of civil asset forfeiture has been corrupted and now infringes on Americans’ right to be free from harassment by money-hungry agents of the government,” wrote Hathaway.

Civil Asset Forfeiture: When Good Intentions Go Awry
In this testimony given before the Mississippi Asset Forfeiture Transparency Task Force, John Malcolm of The Heritage Foundation examines forfeiture in Mississippi and other states and argues for reform. “Civil asset forfeiture should remain focused on its original purpose of depriving criminals of their ill-gotten gains, but we must be sure that it is criminals and only criminals who are being impacted,” said Malcolm.

Policing for Profit: The Abuse of Civil Asset Forfeiture
Marian Williams, Jefferson Holcomb, Tomislav Kovandzic, and Scott Bullock argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent,” they write.

Civil Asset Forfeiture, Equitable Sharing, and Policing for Profit in the United States
Jefferson E. Holcomb and Marian R. Williams, professors in the department of Government and Justice Studies at Appalachian State University, and Tomislav V. Kovandzic, a professor in the University of Texas–Dallas School of Economic, Political, and Policy Studies, identify the effects of civil asset forfeiture reform on law enforcement activities. They write, “There is substantial anecdotal evidence that law enforcement [agencies] utilize a variety of tactics to generate the greatest revenue from their forfeiture operations,” a hypothesis their analysis of U.S. Department of Justice statistics confirms. 

Seize First, Question Later: The IRS and Civil Forfeiture
Institute for Justice researcher Dick M. Carpenter II and attorney Larry Salzman examine the use and abuse of civil asset forfeiture laws by the Internal Revenue Service. “Federal civil forfeiture laws give the Internal Revenue Service the power to clean out bank accounts without charging their owners with any crime,” they write.

Civil Asset Forfeiture: 7 Things You Should Know
This Heritage Foundation Factsheet outlines several important things people should know about civil asset forfeiture. 

Civil Asset Forfeiture Reform Goes Mainstream
Jordan Richardson of The Heritage Foundation discusses how the growing number of civil asset forfeiture abuses has drawn the attention of news media and suggests the increased attention may lead to real reform.

The Civil Asset Forfeiture Racket
A. Barton Hinkle of the Reason Foundation examines the growing problems created by civil asset forfeiture and argues for repeal of such laws.

Inequitable Justice: How Federal ‘Equitable Sharing’ Encourages Local Police and Prosecutors to Evade State Civil Forfeiture Law for Financial Gain
The Institute for Justice examines the federal law enforcement practice known as equitable sharing, which enables and indeed encourages state and local police and prosecutors to circumvent the civil forfeiture laws of their states for financial gain.

Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.

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