State Director, Wisconsin
Share this article
Thomas Lyons | July 28, 2017
Like too many states, Wisconsin’s laws regarding civil asset forfeiture lack basic due process and transparency safeguards. Civil asset forfeiture is the practice of the state seizing items believed to be used in the commission of crime or the profit of crime. For the government to take legal property of your stuff, a criminal conviction is not required – meaning the state does not have to meet the purposefully high burden of proof beyond reasonable doubt before property can be forfeited. In fact, the burden for contesting the seizure and ultimate forfeiture is on the owner to demonstrate to the court the property is “innocent.”
Not only does current forfeiture laws lack proper due process, but we as Wisconsinites do not have access to basic information about forfeiture. An often un-examined defect is the complete lack of reporting requirements. Law enforcement agencies and the district attorneys who pursue the forfeiture actions are not required to submit to the state an accounting of the property seized or what happens to the property.
The lack of reporting is especially troublesome because unlike many states, Wisconsin’s constitution dictates what happens with forfeiture proceeds. Article X, Section 2 mandates the “clear proceeds” of forfeitures be deposited in the school fund. The phrase “clear proceeds” gave the legislature enough wiggle room to allow for up to fifty percent of the proceeds to be kept by the seizing agency to pay for expenses. The clear intent of the two laws is while profits are to be directed to the school fund, the agency can retain some of the value to offset the costs of the operation that led to the seizure. However, due to the language of the law, less money is going to the school fund from forfeiture proceeds than was intended.
Wisconsin’s legislature is considering a bill, Senate Bill 61 that provides comprehensive asset forfeiture reform designed to fix many problems including the lack of reporting. In late May, a public hearing was held. Many representatives of law enforcement presented testimony in opposition to the bill. A consistent theme was that the funds received through asset forfeiture are vital to law enforcement’s efforts to conduct investigations especially into the illegal drug trade.
One would think if the funds are vital that there would be a concerted effort to compile the data that shows so. Tracking and documenting expenses is good government practice that should not require an act from the legislature. If a vital funding source is being threatened, as opponents of civil asset forfeiture reform say, the gathering of the empirical evidence to support should be presented for all citizens to see. There is nothing stopping law enforcement agencies from pursuing transparency on their own.
The taking of a person’s freedom and/or property are two of the most major and potentially dangerous functions our government can exercises. We as citizens have the right to transparency and accountability when the government does so. Current forfeiture laws fail on both accounts. This is just one of the many reasons the legislature should pass comprehensive asset forfeiture reform.