Wisconsin Bill Takes on Asset Forfeiture, Would Close Federal Loophole

MADISON, Wisc. (Mar. 9, 2017) – A bill introduced in the Wisconsin Senate would reform the state’s asset forfeiture laws to prohibit the state from taking property without a criminal conviction. The legislation also takes on federal forfeiture programs by banning prosecutors from circumventing state laws by passing cases off to the feds.

Sen. David Craig (R-Big Bend), along with a bipartisan coalition of 25 legislators, sponsor Senate Bill 61 (SB61). A companion bill, AB122, was introduced in the House. The legislation would reform Wisconsin law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture. Under current law, the state can seize assets even if a person is never found guilty of a crime, or even charged. The proposed law would also require the court to find that the property seized is proportional to the crime committed.

SB61 and AB122 also address the policing for profit motive inherent in the current law by requiring all asset forfeiture proceeds go to Wisconsin schools instead of local law enforcement agencies.

“Civil asset forfeiture reform is an important step to ensure that no person is, ‘deprived of life, liberty or property, without due process of law’ as guaranteed by the Fifth Amendment,” Craig told the Milwaukee Journal Sentinel. “Criminal justice policy should focus on punishing the convicted, not raising revenue. Our bill accomplishes that.”

ADDRESSES FEDERAL PROGRAMS

This legislation also closes a loophole that allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government under its Equitable Sharing forfeiture program. The proposed law would explicitly prohibit this practice in most cases.

"All law enforcement agencies shall refer seized property to the appropriate state prosecuting attorney for forfeiture under this chapter unless the seized property includes more than $50,000 of U.S. currency or the property may be forfeited only under federal law. If the seized property includes more than $50,000 of U.S. currency, the law enforcement agency may, but is not required to, refer or transfer the seized property to a federal agency for forfeiture litigation under federal law."

Barring state and local law enforcement agencies from passing off cases to the feds is particularly important. In several states with strict asset forfeiture laws, prosecutors have done just that. By placing the case under federal jurisdiction, law enforcement can bypass the need for a conviction under state law and collect up to 80 percent of the proceeds from forfeited assets via the federal Equitable Sharing Program.

For example, California previously had some of the strongest state-level restrictions on civil asset forfeiture in the country, but law enforcement would often bypass the state restrictions by partnering with a federal asset forfeiture program known as “equitable sharing.” Under these arrangements, state officials would simply hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law banned or limited the practice. According to a report by the Institute for Justice, Policing for Profit, California ranked dead last of all states in the country between 2000 and 2013 as the worst offender. During the 2016 legislative session, the state closed the loophole.

As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its deplorable “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

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SB61 was referred to the Senate Labor and Regulatory Reform Committee where it will need to pass by a majority vote before moving on in the legislative process. AB122 was referred to the Committee on State Affairs.