Testimony Before the Wisconsin Senate Committee on Labor and Regulatory Reform
Jesse Hathaway, Research Fellow, The Heartland Institute
Tuesday, May 30, 2017
Chairperson Nass and members of the committee, thank you for giving me the opportunity to testify today.
My name is Jesse Hathaway. I am a research fellow for the Center on Budgets and Taxes at The Heartland Institute, a 32-year-old national nonprofit research and education organization. Our mission is to discover, develop, and promote free-market solutions to social and economic problems. The Heartland Institute is headquartered in Illinois and focuses on providing national, state, and local elected officials with reliable and timely research and analyses on important policy issues.
Civil asset forfeiture is an issue an increasingly larger number of people across the country are becoming aware of. Civil asset forfeiture, also called civil judicial forfeiture, is a controversial legal fiction, in which law-enforcement agencies take ownership of personal assets from individuals or groups suspected of a crime or illegal activity. In some cases, this can be done without bringing criminal charges against those whose assets are taken.
Between 2000 and 2013, about $51.2 million in assets and money seized from Wisconsin residents, or about $3.6 million each year, was laundered back to Wisconsin local and state police departments and government agencies from the U.S. Department of Justice’s Equitable Sharing Program, a federal program many have criticized as a program circumventing state property-rights protections by treating local crimes as national incidents requiring federal assistance.
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 government agencies economic incentives to take property, corrupting them and penalizing innocent property owners. Many states impose no penalties on law-enforcement agencies for wrongful seizures, and when property is deemed to have been taken illegally, taxpayers usually have to pay for the returned assets.
The standard of proof used to determine whether a seizure may occur differs from state to state.
In civil forfeitures in Wisconsin, property owners are presumed guilty and lose their property unless they contest the forfeiture and prove they were not aware their property was being used illegally. Unless an owner actively works to recover his or her property, it will be lost.
Property owners are often given very little opportunity to challenge seizures, and when they do challenge, the process is expensive for those whose property is seized, as they must pay for attorneys and legal fees to prove their innocence. In many instances, property owners must meet with prosecutors, not a judge or jury, to regain their property.
Wisconsin’s burden of proof is very low—”reasonable certainty,” which is equivalent to “a preponderance of the evidence”—but regardless of the standard, the cost of violating citizens’ civil liberties is still too high.
Ideally, Wisconsin would fully move to a criminal asset forfeiture system, requiring criminal convictions for all forfeiture proceedings, but the substitute amendment is a good incremental step toward that goal. The substituted bill would increase the standard to “clear and convincing evidence,” a standard many courts use for civil lawsuits involving non-monetary issues, such as restraining orders and probate cases.
The “clear and convincing” standard means the evidence is highly and substantially more likely to be true than untrue, as it was stated clearly in Colorado v. New Mexico, a 1984 U.S. Supreme Court case.
Civil asset forfeiture reform is not about punishing law-enforcement officers. In fact, its goal is the opposite: By removing the economic incentives that now exist, we can help ensure citizens trust the current system, leading to improved community-police relations.
It is your responsibility as lawmakers to defend the rights of the citizenry against harm. Although the intentions of civil asset forfeiture may have originated with a principled purpose, we can help ensure that “crime does not pay” without violating due process and private property rights.
Narrowing the government’s forfeiture powers and requiring greater transparency and data collection are great ways to help fix the problem at hand.
Wisconsin lawmakers should continue to implement reforms that will remove incentives for police to seize assets and require clear evidence a person has committed a crime before property is taken.
Civil asset forfeiture reform, including the substitute amendment under consideration today, will help Wisconsin lead the nation in criminal justice reform, setting an example that other states can use to implement similar reforms.
Thank you for your time today.