By Michael Maharrey

Yesterday, the Wisconsin Assembly gave final approval to a bill that would reform 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 would reform Wisconsin law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture in most situations. It would also raise the evidentiary requirement for forfeiture from a preponderance of evidence to clear and convincing evidence.

The proposed law would require forfeiture money to primarily go into the state Common School Fund, but would allow 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.”

On Tuesday, the Senate passed SB61 by a 22-10 vote. Yesterday, the Assembly concurred, sending the bill to the Governor’s desk.

“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 would also take 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).

FEDERAL LOOPHOLE

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.