State’s Laws Better Than Most, But Lack Important Property Rights Protections and Transparency Provisions
For Antigo Times
Arlington, Va.—Draconian state and federal civil forfeiture laws are fueling an unprecedented rise in property seizures nationwide, according to a new national study. Wisconsin’s laws are better than most, but they still leave room for improvement. The study provides the most comprehensive examination of civil forfeiture laws and forfeiture statistics yet compiled.
According to the report, Policing for Profit: The Abuse of Civil Asset Forfeiture, released today by the Institute for Justice:
- Wisconsin earns a B for its civil forfeiture laws. Wisconsin law bars forfeiture proceeds from going to law enforcement accounts, eliminating the financial incentive to seize under state law. However, the state should provide stronger property rights protections.
- Though Wisconsin’s civil forfeiture laws are better than most, they suffer from a troubling lack of transparency. Law enforcement agencies are not required to track or publicly report their forfeiture activity under state law.
- Wisconsin law enforcement took in over $51 million in federal forfeiture proceeds through a controversial Department of Justice program from 2000 to 2013, ranking 28th nationally after accounting for drug arrests.
Under civil forfeiture laws, police and prosecutors can seize cash, cars, homes and other property on the mere suspicion that it is connected to criminal activity. No charges or convictions are required. And once property is seized, owners must navigate a confusing, complex and often expensive legal process to try to win it back before it is forfeited. Worst of all, most civil forfeiture laws give law enforcement agencies a powerful incentive to take property: a cut, or even all, of forfeiture proceeds. Such financial incentives, combined with weak protections for property owners, increasingly put people’s property at risk.
“Research has shown that the financial incentives baked into civil forfeiture laws influence law enforcement behavior,” said Dick M. Carpenter II, Ph.D., an IJ director of strategic research and one of Policing for Profit’s co-authors. “When laws make taking property relatively easy and lucrative for law enforcement, it should be no surprise to see agencies take advantage.”
Nationwide, forfeiture revenue has exploded. Since 2001, annual federal forfeiture revenue has increased from less than $500 million to more than $5 billion in 2014—a tenfold increase in just 14 years. And available data show forfeiture revenue across 14 states more than doubling from 2002 to 2013.
The study also finds that when police and prosecutors take property, they overwhelmingly prefer civil forfeiture to its criminal counterpart. Civil forfeiture is easier for law enforcement because it does not require a conviction, while criminal forfeiture does. Data obtained by IJ reveal that the Department of Justice took advantage of easier civil procedures in 87 percent of forfeiture cases from 1997 to 2013.
When it comes to protecting property owners from unjust forfeitures, Policing for Profit finds that most state and federal civil forfeiture laws fail to make the grade: 35 states receive a D+ or worse, and federal laws earn a D-.
Several states have adopted reforms to rein in rising property seizures, led by New Mexico, which earns an A- thanks to a new law that abolishes civil forfeiture and eliminates the financial incentive to seize by directing all forfeiture proceeds to the state’s general fund, instead of law enforcement accounts. At the federal level, despite holding hearings, the House and Senate Judiciary Committees have so far failed to introduce much-needed comprehensive reform.
Despite a lack of state-level data, there is anecdotal evidence of forfeiture abuse in Wisconsin. In 2011, for example, Beverly Greer brought her son’s $7,500 bail to the Brown County jail in cash, as instructed by police. A waiting drug dog alerted to the smell of drugs on the money. Claiming this as evidence the cash was ill-gotten, the police seized it—even though most currency in circulation in the U.S. bears traces of narcotics.
State and local law enforcement can also take advantage of a controversial federal forfeiture program called equitable sharing, which enables them to circumvent their own states’ laws and forfeit under federal law instead—and get up to 80 percent of proceeds back. Policing for Profit finds that DOJ equitable sharing payments to state and local law enforcement nationwide more than tripled between 2000 and 2013, jumping from $198 million to $643 million.
IJ’s analysis also shows that policy changes announced by the Justice and Treasury Departments in January—changes purportedly intended to curb equitable sharing—are unlikely to reverse the trend. The new policy only targets a small slice of the program, the federal “adoption” of locally seized property, and largely leaves intact joint task force and investigative seizures. Such joint operations accounted for 82 percent of DOJ equitable sharing proceeds from 2000 to 2013.
Most of Wisconsin’s DOJ equitable sharing proceeds—52 percent—came from joint task forces and investigations.
“As long as state and federal laws fail to protect property owners and give law enforcement a financial incentive to take property, civil forfeiture will continue to grow,” said Lisa Knepper, an IJ director of strategic research and one of the report’s co-authors. “The best solution would be to simply abolish civil forfeiture. No one should lose their property without being convicted of a crime, and law enforcement should not profit from taking people’s property.”