Wisconsin Becomes 15th State to Require Criminal Convictions to Forfeit Property, Under Flawed New Law

Wisconsin Gov. Scott Walker signed SB 61 today, a bill designed to reform the state’s civil forfeiture laws, which let the government permanently confiscate property without ever filing criminal charges. With the governor’s signature, Wisconsin becomes the 15th state to require a criminal conviction for most or all forfeiture cases, joining states like Minnesota and Ohio.

SB 61 will enact the following reforms:

  • Raise the standard of proof to clear and convincing evidence.
  • Shift the burden of proof for innocent-owner claims onto the state. This will restore the presumption of innocence.
  • Agencies must create itemized expense reports when spending state or federal forfeiture proceeds. Those reports will be posted on the department of administration’s website.
  • Establish a pretrial hearing for property owners. If it’s likely that the owner would ultimately win, a court would order that the property be returned to its owner.

“Although the new law certainly contains worthwhile reforms, no one should mistake this for a comprehensive fix of Wisconsin’s abusive forfeiture laws,” said Institute for Justice Senior Legislative Counsel Lee McGrath. “Civil forfeiture is one of the greatest assaults on the right to due process and private property. We are determined to keep fighting until Wisconsin’s rigged system is abolished, once and for all.”

Under the new law, the government can only forfeit property in civil court, if a person is first convicted in criminal court. But two major loopholes threaten this requirement.

First, law enforcement can bypass the conviction requirement if the seized property has not been claimed after at least nine months. Yet in many forfeiture cases, it often costs more to hire a lawyer to fight for the seized property than what the property itself is actually worth. That forces many property owners to walk away and abandon their property, even in states that enacted reforms.

“Consider Minnesota, which enacted a conviction requirement for civil forfeiture in 2014,” noted McGrath. “But even after reform, over 95 percent of civil forfeitures do not involve a criminal conviction, precisely because the owner either could not or did not challenge the forfeiture case in civil court. The best way to close this appalling loophole would be to abolish civil forfeiture and replace it with criminal forfeiture.”

Second, no conviction is necessary if the defendant “fled the jurisdiction,” which, as written, could potentially ensnare any out-of-state driver who had their property seized during a traffic stop in Wisconsin.

An earlier version of the bill sought to clarify that “fled the jurisdiction” would only include defendants who had arrest warrants issued against them or had been arrested, charged with a crime, and then released on bail. Unfortunately, the signed version of SB 61 removed both of those clarifications.

SB 61 also tries to address a federal forfeiture loophole. Through “equitable sharing,” state and local law enforcement can collaborate with a federal agency or joint task force, forfeit property under federal law, and receive up to 80 percent of the proceeds. Wisconsin agencies have collected over $50 million through equitable sharing from 2000 to 2013.

This loophole was further widened last summer when Attorney General Jeff Sessions revitalized an equitable sharing program called “adoption,” which had been strictly curtailed during the previous administration. Under equitable sharing, a staggering 71 percent of seizures made by Wisconsin agencies were adoptive seizures.

SB 61 attempts to close this loophole by requiring a criminal conviction (under federal or state law) before agencies can collect proceeds from equitable sharing. Unfortunately, the new law contains multiple loopholes of its own, and does not apply to cases where the property goes unclaimed after nine months or where the defendant “fled the jurisdiction.”

“With these loopholes, precious little will stop Wisconsin agencies from policing for profit,” McGrath said.

Since 2014, 28 states and the District of Columbia have tightened their forfeiture laws, while nine states are currently considering reforms. In Congress, Wisconsin Rep. Jim Sensenbrenner has sponsored the DUE PROCESS Act, which would overhaul civil forfeiture laws on the federal level.

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