Testimony Before the Wisconsin State Affairs Committee
Forfeiture of Property Seized in Relation to a Crime
Lindsey Stroud, State Government Relations Manager, The Heartland Institute
Tuesday, February 20, 2018
Chairman Swearingen and members of the committee, thank you for giving me the opportunity to provide testimony today.
My name is Lindsey Stroud. I am a state government relations manager at The Heartland Institute, a 34-year-old national nonprofit research and education organization. Heartland’s mission is to discover, develop, and promote free-market solutions in several issue areas, including budget and taxes, energy and environment, education, health care, and constitutional reform. Our organization is headquartered in Illinois and focuses on providing national, state, and local elected officials with reliable and timely research and analyses.
Civil asset forfeiture, also known as civil judicial forfeiture, is a controversial legal process used by law enforcement agencies to seize personal assets from individuals and groups suspected of a crime or illegal activity.
Currently, suspected persons in Wisconsin need not be convicted of a crime to have their personal property forfeited to law enforcement. The proposed legislation would require a conviction for property to be seized, thereby eliminating the chance people in Wisconsin will have their property unjustly taken.
In 2015, the Institute for Justice gave Wisconsin a “B” grade in its civil asset forfeiture report card. Although Wisconsin’s asset forfeiture laws are not the nation’s worst, IJ cited multiple problems with the state’s laws, including the current equitable sharing arrangement between the U.S. Department of Justice and Wisconsin. These arrangements allow law enforcement officials to circumvent state law by working under federal law. Federal agencies often prefer states use equitable sharing agreements because federal law enforcement are then granted some of the seized assets. IJ ranked Wisconsin “28th for federal forfeiture, with over $51 million in [DOJ] equitable sharing proceeds from 2000 to 2013.”
Another issue noted in the 2015 IJ study is Wisconsin does not have a strong standard of proof required for seizure. Current law states law enforcement agents must have “reasonable certainty by the greater weight of credible evidence” that property is related to a crime in order to seize it, a standard of proof IJ equates to the preponderance of the evidence standard used in civil law cases.
IJ argues Wisconsin’s civil asset forfeiture laws are also flawed because innocent property owners are required to demonstrate their noninvolvement with the illegal use of their property to reclaim it. In other words, citizens whose property has been seized are not considered innocent until proven guilty.
Further, Wisconsin’s current civil asset forfeiture laws lack transparency mechanisms that keep seizures in check. Law enforcement agents are not required to track or report forfeitures. The lack of transparency makes it difficult to determine if law enforcement officials are abusing seizure laws. The Wisconsin Institute for Law and Liberty (WILL) examined how local law enforcement officials track and report their civil asset forfeitures. WILL sent open-records requests to eight law enforcement agencies in Wisconsin and received only four responses. In those four responses, WILL found inconsistent reporting practices and concluded agencies in Wisconsin “rarely have [in their possession] any document related to civil forfeiture,” unless the property was seized through an equitable sharing agreement with the federal government. The current proposal would rectify this problem by mandating the creation and maintenance of a database to track forfeitures.
Without practices in place restricting and monitoring forfeiture, abuses will undoubtedly continue. Critics of civil asset forfeiture have cited numerous examples of forfeiture abuse in Wisconsin, including the seizure of property disproportionate to the crime committed. The American Civil Liberties Union cites a 2013 case in which Wisconsin law enforcement seized a vehicle valued at $26,000 because the vehicle’s owner had committed a small drug solicitation offense. The driver was never charged with a crime and the value of the drugs in that case did not exceed $250. The legislation now under consideration would address this issue by including a detailed list of factors that must be used when determining the difference between appropriate and excessive seizures.
In addition to these concerns, it’s important proceeds from seized property are spent according to existing law. Currently, Wisconsin’s laws require 50 percent of proceeds from crime-related forfeitures to go to the state’s school fund. However, the MacIver Institute found the Wisconsin State Patrol, despite having taken more than $50,000 in non-federal forfeitures, “has turned over very little – or none … to the state’s Common School Fund.” The legislation now under consideration would continue to permit law enforcement agencies to retain 50 percent of seizure proceeds, but strict requirements would also be enacted to ensure monies are distributed properly.
Wisconsin lawmakers should continue to reform civil asset forfeiture laws by removing incentives for police to seize assets and require a conviction before property is taken. Such reform will help Wisconsin lead the nation in criminal justice reform and serve as an important example for other states to follow when considering and implementing similar reforms.
Thank you for your time today.