MacIver News Service | December 18, 2017

By M.D. Kittle

MADISON, Wis. – The Wisconsin State Patrol has hauled in more than $50,000 in non-federal civil asset forfeitures since January 2014, according to records obtained by MacIver News Service.

That’s a decent chunk of change from the seizing – and keeping or selling – of property police deem to have been involved in a crime. Remember, under civil asset forfeiture, 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.

The State Patrol has turned over very little – or none (depending on who you believe) – of the $52,961.62 in forfeiture proceeds to the state’s Common School Fund, as required under Wisconsin’s constitution.

It appears the law enforcement agency has run afoul of the law.

“We have searched back ten years in both WisMart and Star (records archives) and have no record of ever having received any funds from either the DOT (Department of Transportation) or the State Patrol under the Civil Asset Forfeiture line during that time period,” wrote Jonathan Barry, executive secretary of the Board of Commissioners of Public Lands, in an email response.

The BCPL administers the Common School Fund, and distributes about $30 million annually to Wisconsin school districts. BCPL’s distributable proceeds – beyond investment income from the public lands it owns and manages – include fines and forfeitures.

Under civil asset forfeiture statutes, law enforcement agencies must distribute at least half of proceeds obtained through forfeitures to the school fund. 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.

But the State Patrol cases in question involved “non-federal” forfeitures. The state constitution demands, “The proceeds of … and all moneys and the clear proceeds of all property that may accrue to the state by forfeiture or escheat (the reversion of property to the state) … shall be set apart as a separate fund to be called ‘the school fund.’”

DOT spokeswoman Rebecca Kikkert claims the department, which oversees the State Patrol, sent the School Fund two payments in Fiscal Year 2017: one for $2,310 and other for $3,000 “where the court directed State Patrol to divide the remittance.”

“State Patrol made no expenditures from these monies,” Kikkert wrote in an email to MacIver News Service. She did not account for previous fiscal years. Questions regarding the State Patrol were referred to the DOT.

Tom German, deputy director of the Board of Commissioners of Public Lands, said the agency was not able to verify DOT’s assertion that it sent BCPL some civil asset forfeitures in 2017.

“Generally, in civil asset forfeiture cases that are prosecuted in circuit court, the law enforcement agency prosecuting the matter forwards a portion of the forfeiture directly to BCPL for deposit in the Common School Fund,” German wrote in an email. “A review of our records for the last ten years does not show any civil asset forfeitures received directly from the DOT or the State Patrol for deposit in the Common School Fund.”

Presented with this information, the DOT’s Kikkert said the agency has been “acting in good faith as to the state asset forfeiture account.” She stood by her earlier statement that the DOT had made the two payments of over $5,300.

“As to other funds remaining in the account, the DOT is allowed to retain funds for various costs such as administrative expenses of seizure and costs of investigation. If the DOT assists another agency in a matter involving a state asset forfeiture and the other agency reimburses the DOT for allowable expenses, then the DOT may retain those expenses as allowed by statute,” the spokeswoman said. She did not specify any case in which the State Patrol assisted another agency and was allowed to retain expenses.

The money DOT says it distributed to the School Fund, $5,310, represents about 10 percent of the $52,961.62 that the DOT said it had in its forfeiture account. BCPL said it has no record of any payments made by the agency over the past decade. No matter how you slice it, it would appear the State Patrol distributed far less seized proceeds than is expected under state law.

German said it is possible the State Patrol was involved in circuit court civil asset forfeitures case in which a county clerk of courts sent the BCPL funds, but the agency is not aware of such instances, and the DOT’s Kikkert did not spell out such occurrences.

“It may also be possible that the DOT worked through a local drug enforcement unit that handled the civil asset forfeiture action. Again, we wouldn’t be able to verify that without sufficient details to research other agencies,” German said. The DOT did not provide information on partner agencies and whether they may have distributed forfeiture funds.

Civil asset forfeiture critics say some law enforcement agencies in Wisconsin are either ignorant of the law or ignore it when grabbing up proceeds from seized property. It’s what opponents of open-ended civil asset forfeiture practices describe as “Policing for Profit.”

“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,” asserts the Institute for Justice in its most recent report, “Policing for Profit: The Abuse of Civil Asset Forfeiture.”

The report finds forfeiture activity has exploded, particularly in the 21st century.

A reform bill authored by Sen. David Craig (R-Town of Vernon) and Rep. Gary Tauchen (R-Bonduel) is awaiting scheduling.

The reform measure requires a conviction before property may be taken and sold as part of the forfeiture process.

Craig calls the proposal a “basic constitutional” protection.

“The spirit of the law or the Constitution wants as much money as possible going to the school fund,” Craig told MacIver News Service in September. The bill clearly limits what law enforcement can do with the proceeds from the property confiscated in investigations so there is no “profit motive” to execute the law, he added.

As MacIver News reported earlier this year, the Oshkosh Police Department used civil asset forfeiture funds for budget items such as audio and video equipment upgrades for the department’s interview rooms.

In a report to the Oshkosh Common Council the police chief said the department would “continue to seize assets from criminals and pursue forfeitures when practical and within statutes.”

The reform bill has met resistance from some in the law enforcement community, but the sponsors hope to move the long-awaited legislation to the floor in the upcoming winter session.