MacIver News Service | February 8, 2018
By M.D. Kittle
UPDATED at 1:40 p.m. to include comment from Green Lake County Sheriff Mark Podoll, who on Thursday confirmed the Badger State Sheriffs’ Association is neutral on a civil asset forfeiture reform bill.
MADISON, Wis. – After years of wrangling and plenty of setbacks, it appears lawmakers and law enforcement have reached a deal on a civil asset forfeiture bill that can pass the state Senate.
The legislation, which would demand a conviction before police could keep and sell seized property, is considered by some criminal justice watchers to be the strongest reform to a controversial law that has raised serious constitutional concerns.
“It appears we have a deal,” Sen. David Craig (R-Town of Vernon) told MacIver News Service this week. “We are working on getting it scheduled for Senate floor session on Feb. 20.”
The bill recently moved out of the Senate Labor and Regulatory Reform Committee. An amended version has won the approval of some once-reluctant Republicans, including Sen. Van Wanggaard, a former long-time law enforcement officer, Capitol insiders tell MacIver.
The amendment tightens the bill’s standards for establishing damages awarded to victims of asset forfeiture abuse. Only those cases that are the most egregious, or forfeitures deemed to have occurred “arbitrarily” and “capriciously” would be subject to legal damage claims.
Under Wisconsin’s civil asset forfeiture law, police officers may keep or sell property they deem to have been involved in a crime. Property owners need not be arrested or convicted of a crime for their cash, cars or other possessions to be grabbed up by the government.
That would change under the legislation co-authored by Craig. Law enforcement would have to secure a conviction at the state level or in cases where local police turn over investigations to federal investigators.
The bill also includes a reporting requirement, mandating that Wisconsin create a database tracking forfeitures to make sure abuses or misuses of the law aren’t occurring.
Law enforcement agencies must distribute at least half of proceeds obtained through forfeitures to the state’s Common School Fund, in accordance with Wisconsin civil asset forfeiture law and the state constitution. Agencies seizing property “may deduct 50 percent of the amount received for administrative expenses of seizure, maintenance of custody, advertising and court costs and the costs of investigation and prosecution reasonably incurred,” according to state statute. If the property forfeited is money, “all the money shall be deposited in the school fund.”
Local and state law enforcement agencies may transfer their drug investigations to federal law enforcement agencies. Doing so moves the cases into the federal court system, which is much more liberal with how much money or property local law enforcement agencies are allowed to keep and cash out than the more restrictive state courts.
Craig’s bill also codifies current case law on proportionality. In short, the punishment must fit the crime. If a scofflaw fails to pay a municipal fine for possessing marijuana, he shouldn’t lose his house under a government-led civil asset forfeiture action, according to advocates of the reform measure.
The Institute for Justice asserts in its report, “Policing for Profit,” that civil forfeitures have been big business for law enforcement.
“Every year, police and prosecutors across the United States take hundreds of millions of dollars in cash, cars, homes and other property—regardless of the owners’ guilt or innocence,” the report notes. Proceeds have helped bolster budgets in some law enforcement agencies.
Capital sources say the state Department of Justice and the Badger State Sheriffs’ Association have agreed to stand neutral – to not oppose – the bill after the parties agreed on the language changes.
Dean Meyer, executive director of the Sheriffs’ Association, said he was unaware of the deal. He referred MacIver’s questions to Green Lake County Sheriff Mark Podoll, who heads up the association’s legislative committee. Podoll on Thursday confirmed the association is neutral on the bill.
State Department of Justice spokesman Johnny Koremenos also confirmed that DOJ is now neutral on the bill.
Criminal justice watchers say the legislation is the latest example of Wisconsin leading the way on government reform.
“Basically it is the most pro-individual-liberty asset forfeiture law that I know of,” said Thomas Lyons, director of Right on Crime, a national campaign of the Texas Policy Foundation, in partnership with the American Conservative Union Foundation and Prison Fellowship. The initiative supports conservative solutions for reducing crime, restoring victims, reforming offenders, and lowering taxpayer costs, according to the group’s website.
MacIver News Service has tracked problems in law enforcement’s use of the state’s asset forfeiture laws. In some cases there appears to be a misunderstanding of statutes or an overt abuse of them.
One Capitol insider said the Department of Justice has a clearer understanding of the the problems at the local level and has been increasing training on what law enforcement agents can and cannot do under asset forfeiture.
While the Senate may have the votes to pass the reform measure, its fate in the Assembly is much less clear. As of Wednesday, the bill had yet to be scheduled for a committee vote.
The clock is ticking. The Assembly plans to wrap up winter session business in the next few weeks. It could take up the asset forfeiture bill on Feb. 22, two days after the Senate meets – if the bill makes it out of committee.