State Director, Wisconsin
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Thomas Lyons | April 30, 2018
Governor Walker signed into law a large overhaul of the state’s use of civil asset forfeiture. The overall effect of Act 211 is a greater protection for individual property rights.
Civil asset forfeiture is the act of government officials seizing, and often keeping, property under mere suspicion that the property was used to facilitate a crime or was the profit of crime. Like too many states, Wisconsin did not previously require a criminal conviction when seeking forfeiture. Instead, a district attorney was only required to show the property was more likely than not to have been involved in criminal activity. As a result, the state could sidestep the onerous task of proving a crime occurred before permanently seizing property. Act 211 changed that by requiring the state to prove beyond reasonable doubt that the property was used in a criminal act, or a profit from crime, before forfeiting the assets. The result is a strengthening of due process preventing the state from taking shortcuts when taking private property.
Along the lines of good government, Act 211 also creates greater transparency by enhancing reporting requirements. Wisconsin’s constitution requires the proceeds of forfeitures be deposited in the school fund. Prior to Act 211, this was accomplished largely on the honor system. Based on a decades old Attorney General’s opinion, law enforcement were permitted to keep up to fifty percent of the value of the assets to offset the actual costs to law enforcement in seizing the property. But, there was no requirement the costs be documented. Act 211 maintains law enforcement’s ability to keep up to fifty percent of the proceeds but also requires that actual expenses are reported. Requiring documentation keeps all participants honest and transparent when complying with the state constitution.
The same reporting requirements will be applied to assets seized by federal law enforcement through the equitable sharing program. Current law allows profits of seizures to be obtained in federal court and transferred to state law enforcement agencies. Although private property has less protection when forfeited in federal courts, Act 211 requires that any assets transferred to the state through the equitable sharing program must go through the same reporting requirements as state seized assets. The Act also requires that when state officials do send a case to the feds, they must document their expenses and can only keep assets if there is a state or federal conviction attached.
As citizens, our only safeguard is the due process laid in the law. Act 211 shows Wisconsin is now taking property rights more seriously by strengthening due process.