Legislature Should Abolish All Civil Asset Forfeiture

Wisconsin: A Model For Asset Forfeiture Reform

It’s a brand new year and everybody is happy and making all sorts of resolutions, left and right, so I thought this week I would join the party and, here’s a first, find something about which I can fully praise our state government.

Such as civil asset forfeiture reform. Back in 2018, led by Republicans—especially then-state Sen. David Craig of Vernon and Gov. Scott Walker—the state reformed its civil forfeiture laws dramatically, becoming a role model for the nation.

Most civil forfeiture laws authorize the government to seize property based on the suspicion that it may have been involved in a crime. Oddly enough, law enforcement “arrests” the property rather than the person. In many if not most states—and at the federal level—no conviction is required, and in many cases charges don’t have to be filed.

Once property is seized, the burden is on property owners to get the property back, in the worst case scenario failing to do so and in the best case still having to navigate a confusing and expensive legal system.

It’s called policing for profit by such reform groups as the Institute for Justice (IJ) and other advocates for reform of the justice system, but what it really is is legal lawlessness, for lack of a better way of saying it.

Before 2018, Wisconsin was just about as bad as anybody else. Horror stories abounded. To cite just one example, in 2013, Whitewater police seized a student’s 2010 Altima after she was caught selling marijuana and a non-prescription drug and kept the vehicle, though her father was the “innocent owner” of the vehicle and, more important, the student was never charged with a crime.

Even worse was the program called “equitable sharing,” which allowed state law enforcement officers to turn seized property over to federal officials for forfeiture—and get up to 80 percent of the proceeds of the forfeited property.

Then, Republicans galvanized a movement to reform the law, and they got a lot of support, including from Americans for Prosperity-Wisconsin and the IJ, not to mention from the Wisconsin Institute for Law & Liberty and others, but none was so important as that of Gov. Scott Walker, who signed the bill into law.

Now, in Wisconsin—currently ranked third in the country for good civil forfeiture laws by the Cato Institute—the law prohibits a forfeiture property judgment unless a person is convicted of a crime that was the basis for seizing the property. In a civil forfeiture action, the proceedings must also be adjourned until after the defendant is convicted. Then, too, a court must order the return of any property in a forfeiture action within 30 days of an acquittal or dismissal of a charge that was the basis of the forfeiture action.

The 2018 law also reduced the profit motive for civil asset forfeiture because all forfeiture proceeds go to fund schools, though agencies can retain up to 50 percent to pay for forfeiture expenses.

As for equitable sharing, the 2018 law established more transparent reporting requirements, and, to receive proceeds from the property, the act requires a federal or state criminal conviction for the crime that was the basis for the seizure.

On Second Thought

OK, for those reading, we’re only several minutes into the column and I’m already going to break my New Year’s resolution and backpedal the praise for state government. Let’s go with half-hearted praise.

Actually, let’s go with no praise at all. The bottom line is, civil asset forfeiture in any form and under any legal regime is unconstitutional, and no one should be singing any praises—even half-hearted ones—for any law that tramples on the rights of citizens.

Civil asset forfeiture, in any form, does just that.

Specifically, the 2018 reforms fell short in certain key respects. First, as the IJ points out in its survey of civil asset forfeiture laws in the 50 states, a weak conviction provision undercuts the goal of switching to criminal asset forfeiture.

“It does not require conviction of the owner, only of ‘a person’ and the court can waive it if the owner does not contest the forfeiture or in other situations, including when the defendant has agreed to help investigators in exchange for immunity,” the IJ states in its 2020 “Policing for Profit” report.

What’s more, the state continues to participate in the equitable sharing program in which the feds “adopt” the state’s forfeiture.

There are other serious loopholes in the law. For instance, in equitable sharing and overall, the conviction requirement can be waived if the defendant has died, or been deported, or has fled the jurisdiction, or the property has been unclaimed for just nine months.

These are significant. For instance, “fled the jurisdiction” sounds willful and fugitive, but it could simply refer to an out-of-state driver who had property seized during a traffic stop while traveling through the state. As for the nine-month window to make a claim, the simple truth is that it often is not worth the cost of an attorney to contest the forfeiture, and so many people simply give up and walk away.

Another simple truth: Even the reformed law is unconstitutional, and here’s how IJ senior legislative counsel Lee McGrath put it at the time: “Although the new law certainly contains worthwhile reforms, no one should mistake this for a comprehensive fix of Wisconsin’s abusive forfeiture laws. Civil forfeiture is one of the greatest assaults on the right to due process and private property. We are determined to keep fighting until Wisconsin’s rigged system is abolished, once and for all.”

That remains true today.

Meanwhile, headlines continue to percolate to the surface. On March 19, 2022, a Minnesota man, Clifford Skinner, had $9,620 seized after a traffic stop in Wisconsin while he and his fiancé were traveling to and from his mother’s funeral. He subsequently got busted for using medical marijuana, which is legal in Minnesota but not in Wisconsin.

The police took his pot, about a quarter ounce, and also his money, as reported by Wisconsin Public Radio. Here’s the thing: He was not criminally charged, but, court records show, received two non-criminal citations, one for possession of drug paraphernalia and one for possession of a controlled substance.

End of story? Hardly.

On May 3, 2022, Skinner got a letter from the federal Drug Enforcement Agency (DEA) informing him that the agency had “seized” his cash and was initiating administrative forfeiture proceedings. The letter informed him that the agency was in fact keeping his money—he had, after all, “fled the jurisdiction”—but they allowed that he could seek a “pardon” of the property by filing a petition.

It’s unclear whether Skinner ever got his money back—a DEA forfeiture search using his public notice number came up empty—but, the point is, the cash should never have been taken in the first place, and by the time of the DEA letter, government had controlled his cash for a month-and-a-half, and three months by the time his story was published.

Beyond anecdotal evidence, civil asset forfeiture continues to be big business for law enforcement. According to the U.S. Attorney’s office in the Western District of Wisconsin, that agency alone collected $1,043,540 in asset forfeiture actions in 2023. Law enforcement agencies must also file reports to the Department of Administration to retain a percentage of the forfeited property to pay for forfeiture-related expenses. In 2024, 68 Wisconsin agencies did so.

As for federal deposits to states under equitable sharing, the U.S. Department of Justice reports that $495.5 million was made to the states for 2023. The total going to Wisconsin was $5.1 million.

Send In The Lawmakers

Some federal lawmakers last week saw the holidays as a good time to spread some cheer for those concerned about the constitution. U.S. Sens. Rand Paul (R-Kentucky) and Cory Booker (D-New Jersey) joined forces to reintroduce a bill to reform the nation’s civil asset forfeiture laws.

The two lawmakers, along with such colleagues as Sens. Mike Lee (R-Utah), Angus King (I-Maine), Mike Crapo (R-Indiana), Cynthia Lummis (R-Wyoming), and Ron Wyden (D-Oregon), say their Fifth Amendment Integrity Restoration (FAIR) Act was necessary to protect Americans’ rights from government abuse.

Specifically, the FAIR Act would eliminate equitable sharing. Paul and Booker say the legislation also seeks to remove the profit incentive from civil asset forfeiture by restoring the rule in which the proceeds of forfeiture go to the federal treasury’s general fund, not to the coffers of the law enforcement agency making the seizure, so Congress can appropriate the money for any purpose.

In addition, Paul and Booker say the act would restore the principle of “innocent until proven guilty.” Under current law, they say, federal law enforcement agencies may take property suspected of involvement in crime without charging the property owner with a crime. The FAIR Act places the burden on the government to show that a property owner consented or was willfully blind to his property being used in a crime by a third party.

Then, too, the FAIR Act would require clear and convincing evidence, a higher threshold than the current preponderance-of-the-evidence standard that the property was used for an illegal purpose.

Administrative forfeitures would be abolished, too. Administrative forfeitures occur when property owners fail to challenge a seizure in court for any reason, including the inability to afford a lawyer or a missed deadline to file a claim, the lawmakers say.

“The seized property is simply presumed ‘guilty’ without a neutral arbiter such as a judge determining whether it should be permanently taken from its owner,” Paul and Booker said. “According to the Institute for Justice, administrative forfeitures account for 88 percent of all forfeitures. This provision would effectively force the government to go to court to keep property it has seized.”

The federal bill would strengthen reforms, but there is a caveat. That is, don’t expect it to pass, especially given the narrow majority in the House for the GOP. The key word in Paul’s announcement last week was that he was re-introducing the bill, as he has multiple times before.

It has failed multiple times before, too, so don’t expect this version to fare any better, especially given all the hot-button issues Congress will be tackling with the incoming Trump administration. But one can always hope.

The Court To The Rescue?

The more optimistic route to ending civil forfeiture altogether is a declaration by the U.S. Supreme Court that it is unconstitutional. Though such a case is not now before the court, a decision earlier this year demonstrates that at least some justices, specifically Neil Gorsuch and Clarence Thomas, are eager for the court to settle the question.

In a case decided last May, Culley v Marshall, in 2019 Halima Culley of Alabama loaned her car to her college-aged son, according to the court’s decision. Police stopped the car while the son was driving, and the officers found marijuana and a loaded handgun in the car. Culley’s son was arrested for possession of marijuana, and officers seized the car.

That same year, Lena Sutton loaned her 2012 Chevrolet Sonic to a friend, the court decision states. The friend was stopped for speeding and arrested after the police found methamphetamine. Sutton’s car was also seized. Courts eventually ordered the return of both women’s cars, but their cases took a long time, 20 months in Culley’s case.

Culley and Sutton filed suit in federal court, seeking money damages and alleging that state officials violated their due process rights by retaining their cars during the forfeiture process without holding preliminary hearings. The court ruled 6–3 that while due process requires timely resolution, it does not always require a separate preliminary hearing.

Still, in a strongly worded concurring opinion, Gorsuch, joined by Thomas, urged a look at the constitutional underpinnings of civil asset forfeitures. For one thing, Gorsuch wrote, civil forfeiture laws, in a historical context, are relatively recent concoctions, most coming into being in the 1970s and 1980s. Still, they have had a long legal reach in their short time of existence, the justice observed.

“The new laws have altered law enforcement practices across the nation in profound ways,” Gorsuch wrote. “ … To secure a criminal penalty like a fine, disgorgement of illegal profits, or restitution, the government must comply with strict procedural rules and prove the defendant’s guilt beyond a reasonable doubt.”

But that’s not so in civil forfeiture cases, Gorsuch continued.

“In civil forfeiture, however, the government can simply take the property and later proceed to court to earn the right to keep it under a far more forgiving burden of proof,” he wrote. “In part thanks to this asymmetry, civil forfeiture has become a booming business. In 2018, federal forfeitures alone brought in $2.5 billion. Meanwhile, according to some reports, these days up to 80% of civil forfeitures are not accompanied by a criminal conviction.’”

One problem that has cropped up, Gorsuch asserted, is that law enforcement agencies have become increasingly dependent on the forfeitures as sources of revenue, and, at one time or another, more than 90 percent of agencies serving jurisdictions with populations above 250,000 have participated in what he called the “equitable sharing scheme.”

“And it seems that, when local law enforcement budgets tighten, forfeiture activity often increases,” he wrote.

Not only do law enforcement agencies have strong financial incentives to pursue forfeitures, Gorsuch asserted, those incentives appear to influence how they conduct them. The justice’s examples reflect familiar criticisms of civil asset forfeiture.

“Some agencies, for example, reportedly place special emphasis on seizing low-value items and relatively small amounts of cash, hopeful their actions won’t be contested because the cost of litigating to retrieve the property may cost more than the value of the property itself,” he wrote. “Other agencies seem to prioritize seizures they can monetize rather than those they cannot, posing for example as drug dealers rather than buyers so they can seize the buyer’s cash rather than illicit drugs that hold no value for law enforcement.”

Delay can work to the agencies’ advantage, too, Gorsuch contended.

“Faced with the prospect of waiting months or years to secure the return of a car or some other valuable piece of property they need to work and live, even innocent owners sometimes ‘settle’ by ‘paying a fee to get it back,’” he wrote.

All totaled, Gorsuch reflected, there are many due process questions swirling around relatively new civil forfeiture practices.

“Start with the most fundamental one,” he wrote. “The Fifth and Fourteenth Amendments guarantee that no government in this country may take ‘life, liberty, or property, without due process of law.’ As originally understood, this promise usually meant that a government seeking to deprive an individual of her property could do so only after a trial before a jury in which it (not the individual) bore the burden of proof.”

So how is it that, in civil forfeiture, the government may confiscate property first and provide process later? Gorsuch asked.

The justice turned to history for one possible explanation, noting that due process clauses do include exceptions “consistent with the original meaning of the Fifth and Fourteenth Amendments.”

For example, Gorsuch cited American admiralty laws that allowed the government to seize a vessel involved in “piratical” or other maritime offenses and later initiate post-deprivation civil forfeiture proceedings. There were also exceptions rooted in customs and revenue laws.

“These historical traditions suggest that post-deprivation civil forfeiture processes in the discrete arenas of admiralty, customs, and revenue law may satisfy the Constitution,” he wrote. “But as the Court stressed in Von Neumann, ‘the general rule’ remains that the government cannot ‘seize a person’s property without a prior judicial determination that the seizure is justified.’ And it is far from clear to me whether the post-deprivation practices historically tolerated inside the admiralty, customs, and revenue contexts enjoy ‘the sanction of settled usage’ outside them.”

Even supposing some modern civil forfeiture regimes are able to claim the sanction of history, Gorsuch wrote that he wondered whether all their particulars might.

“In the past, it seems the government could confiscate only certain classes of property,” he wrote. “So, for example, admiralty statutes regularly authorized the government to seize and pursue the civil forfeiture of ‘the instrument[s] of the offence,’ say, a ship used to engage in piracy. But statutes like that did not necessarily mean forfeiture extended to the vessel’s cargo, and courts were loath to assume they did.”

Today, by contrast, civil forfeiture statutes routinely permit governments to confiscate not just instruments used in an offense, but other “facilitating” property as well, Gorsuch observed.

“And if that difference seems a small one, it is anything but,” he wrote. “It is the difference between being able to confiscate the materials and equipment used to produce an illicit drug and being able to confiscate someone’s car after he used it as the site to conduct a single drug transaction as either buyer or seller.”

In addition, Gorsuch continued, even in the areas where the law tolerated civil forfeiture, earlier generations tempered some of its harshest features.

“Courts, for example, ordinarily entertained ‘overwhelming necessity’ as a defense to ‘the violation of revenue laws’ that might otherwise justify forfeiture,” he wrote. “Some statutes permitted the owner to avoid forfeiture by proving that the violation ‘proceeded from accident or mistake.’ Others empowered the Treasury Secretary himself to afford the same remedy—and evidence suggests officials ‘were exceedingly liberal in their use of the . . . power, granting relief in the overwhelming majority of cases presented to them.’”

These days, Gorsuch wrote, many civil forfeiture statutes lack some or all of those mitigating features.

“I acknowledge that this court has suggested an innocent owner defense is not always constitutionally required,” he wrote. “But even putting that debate aside, what of early forfeiture’s other ameliorative attributes? It appears, too, that time was often of the essence in traditional civil forfeiture practice. So, for example, an early federal statute permitting forfeiture for nonpayment of internal duties ‘enjoined’ the ‘collector’ ‘to cause suits for [forfeiture] to be commenced without delay, and prosecuted to effect.’”

All those nuances and concerns need to be explored, Gorsuch wrote, and he took the time to ponder a critical question entwined with modern civil forfeiture processes.

“Why does a nation so jealous of its liberties tolerate expansive new civil forfeiture practices that have ‘led to egregious and well-chronicled abuses’?” he asked. “Perhaps it has something to do with the relative lack of power of those on whom the system preys. Perhaps government agencies’ increasing dependence on forfeiture as a source of revenue is an important piece of the puzzle.”

Then again, Gorsuch speculated, maybe part of the reason lies closer to home.

“In this nation, the right to a jury trial before the government may take life, liberty, or property has always been the rule,” he wrote. “Yes, some exceptions exist. But perhaps it is past time for this court to examine more fully whether and to what degree contemporary civil forfeiture practices align with that rule and those exceptions.”

Specifically, Gorsuch wondered whether modern civil forfeiture actions represent a revival of “common-law deodand,” which required the forfeiture of any object responsible for a death—such as a knife, cart, or horse—to the Crown.

“Today, the idea seems much the same even if the practice now sweeps more broadly, requiring almost any object involved in almost any serious offense to be surrendered to the government in amends,” he wrote.

Even the hardships suffered by the imposition of deodands is familiar, Gorsuch asserted.

“Deodands required forfeiture regardless of the fault of the owner, himself sometimes the deceased,” he wrote. “Not infrequently, the practice left impoverished families without the means to support themselves, faced not only with the loss of a loved one but also with the loss of a horse or perhaps a cart essential to their livelihoods. Sometimes grieving families could persuade authorities or juries to forgo a deodand, but often not, and generally the burden to avoid a deodand was on them.”

Over time, Gorsuch continued, financial incentives wormed their way into the system, just as they have today with civil asset forfeiture.

Deodands eventually faded in England, Gorsuch observed, and the U.S. Supreme Court has held that it “did not become part of the common-law tradition of this country.”

“But has something not wholly unlike it gradually reemerged in our own lifetimes?” he asked. Gorsuch said he did not profess to have all the answers but he hoped for a future reckoning of the issue.

“But in future cases, with the benefit of full briefing, I hope we might begin the task of assessing how well the profound changes in civil forfeiture practices we have witnessed in recent decades comport with the Constitution’s enduring guarantee that ‘[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.’”

It may take time, maybe years, for those cases to arrive. But surveying the relentless examples of abuse, not to mention Gorsuch’s penetration of the historical context—private property is surrendered to the government on mere suspicion, or even less, without respect of civil liberties or of the economic consequences for the most vulnerable populations most subjected to civil forfeiture—isn’t it time Wisconsin go one step further and abolish this unconstitutional and abominable practice once and for all?

This new year, how about a resolution by the legislature and the governor to uphold the state and federal constitution and end the repulsive practice of civil asset forfeiture?

Then it will be time to truly sing the praises of our state government.