Tenth Amendment Center: Signed by the Governor: Wisconsin Law Takes on Asset Forfeiture, Federal Equitable Sharing Program
MADISON, Wisc. (April 4, 2018) – Yesterday, Wisconsin Gov. Scott Walker signed a bill into law that reforms the state’s asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most situations. The legislation also takes a small, but important step toward closing a federal loophole that allows police to circumvent strict state forfeiture laws by passing cases off to the feds.
Sen. Dave Craig, (R-Town of Vernon), along with a bipartisan coalition of 26 legislators, introduced Senate Bill 61 (SB61) last year and it carried over to the 2018 session. The legislation reforms Wisconsin law by requiring a criminal conviction before prosecutors can proceed with asset forfeiture in most situations. It will also raise the evidentiary requirement for forfeiture from a preponderance of evidence to clear and convincing evidence.
The new law requires forfeiture money to primarily go into the state Common School Fund, but allows police to keep up to 50 percent of proceeds “for administrative expenses of seizure, maintenance of custody, advertising and court costs and the costs of investigation and prosecution reasonably incurred.”
The Senate passed SB61 by a 22-10 vote. The Assembly concurred, sending the bill to the governor’s desk. With Gov. Walker’s signature, the law goes into effect April 5.
“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 Journal Sentinal last year when the bill was introduced.
Passing SB61 also takes a step toward closing a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a new policy directive issued last July by Attorney General Jeff Sessions for the Department of Justice (DOJ).
A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption.The new DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.
Law enforcement agencies often bypass more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.
Until recently, California faced this situation.The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.
SB61 takes a step toward closing the loophole by reducing the financial incentive. It prohibits law enforcement agencies from collecting equitable funding money unless there is a federal or state criminal conviction on the crime that was the basis for the seizure. Police also have to produce an itemized report on every case transferred to federal jurisdiction.
If there is a federal or state criminal conviction for the crime that was the basis for the seizure, the agency may accept all proceeds. If there is no federal or state criminal conviction, the agency may not accept any proceeds, except that the agency may accept all proceeds if one of the following circumstances applies and is explained in the report submitted under this subsection:
(b) The defendant was deported by the U.S. government.
(c) The defendant has been granted immunity in exchange for testifying or otherwise assisting a law enforcement investigation or prosecution.
(d) The defendant fled the jurisdiction.
(e) The property has been unclaimed for a period of at least 9 months.
While this provision doesn’t prohibit Wisconsin law enforcement agencies from passing cases to the feds, it reduces the financial incentive to do so. The reporting requirements also make abuses of the system transparent and could create the momentum necessary to completely close the loophole down the road. Passage of SB61 takes a first step toward addressing 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.
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 unconstitutional “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.