Sen. Craig: Guilty Until Proven Innocent: The Case for Civil Asset Forfeiture Reform

The rights and freedoms protected by the Bill of Rights are being eroded by an over-reaching government via civil asset forfeiture. Civil asset forfeiture allows the government to permanently forfeit one’s possessions without criminal convictionor even a charge of wrongdoing. This conflicts with constitutional protections that no person “be deprived of life, liberty, or property, without due process of law”. It is with this ideal in mind that I and a bipartisan coalition of legislators have authored a bill reforming civil asset forfeiture in Wisconsin.  

This practice of pursuing property absent a criminal conviction gained traction in the late 20^th century and is rife with abuse around the country. Under this process, the state brings civil action against an inanimate object suspected of being tied to a crime (see State v. One 2013, Toyota Corolla, a real case, where the state charged a car with apparent wrongdoing). A recent report by the Inspector General of the U.S. Department of Justice found serious issues with the federal asset forfeiture program and various state programs. Efforts to fix these abuses at the federal level are being led by Congressman Jim Sensenbrenner. Reform efforts are supported by some of the most ideologically opposed institutions in the country from the liberal American Civil Liberties Union to the conservative Heritage Foundation.Recently, US Supreme Court Justice Clarence Thomas opined about civil asset forfeiture: “I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice . . .” Justice Thomas’ remarks make clear that Wisconsin’s civil asset forfeiture laws must be reformed or face judicial review.

In Wisconsin, innocent people have had their property tied up for years, at times spending thousands of dollars fighting for its return without success. These abuses do not only apply to property seized during criminal investigations by traditional law enforcement, but also by agencies like the Department of Natural Resources (DNR) that have the authority to take your boat, car, fishing equipment, or hunting rifle without conviction. In fact, many of the government agencies that use civil asset forfeiture do so in direct evasion of the spirit of the Wisconsin Constitution and potentially state statutes. The Wisconsin Constitution states: “all moneys and the clear proceeds of all property that may accrue to the state by forfeiture” be directed to the Common School Fund. The Framers clearly intended that forfeiture funds not be kept by the seizing authority to prevent “policing for profit” scenarios.

State law allows agencies to keep some proceeds covering forfeiture expenses, such as: administrative expenses of seizure, maintenance of custody, advertising and court costs and the costs of investigation and prosecution reasonably incurred. Without proper oversight, this practice will continue growing out of control. Some agencies have publicly claimed to use these funds to purchase K9 squad cars, protective equipment, drug education programs, and surveillance technology – acquisitions outside of what state law allows these funds to be used for. These are important tools for law enforcement, but funding such programs should be done by elected policy makers consistent with the supreme law of Wisconsin – the Constitution, not by municipal law enforcement heads. 

It is time for Wisconsin to join the growing list of states that have reformed their civil asset forfeiture laws to protect a free citizenry from unjustly having their property forfeited. Our legislation accomplishes this by requiring that all forfeitures be accompanied by a criminal conviction, that the items forfeited have a clear and convincing connection to the crime, and that the forfeitures are proportional to the crime committed. These common sense reforms are being embraced across the country in bipartisan fashion. The Legislature should act to correct this abusive practice and ensure that the ideal of “innocent until proven guilty” is the law and practice here in Wisconsin. The Legislature should pass SB 61.

Also See: Sheriffs, BSSA Oppose Proposed Bill That Would Reform Civil Asset Forfeiture