d. The defendant fled the jurisdiction.
e. The property has been unclaimed for a period of at least 9 months.
f. The property is contraband that is subject to forfeiture under s. 961.55 (6), 18
(6m), or (7).
973.076 (2m) (a) of the statutes is amended to read:
(a) In addition to any penalties under this chapter, the court 21
shall, with due provision for the rights of innocent persons in accordance with sub.
, order forfeiture of any property specified in s. 973.075 (1) in accordance with pars. 23
(b), (c), and (d).
973.076 (3) of the statutes is amended to read:
973.076 (3) Burden of proof.
The state shall have the burden of satisfying or 2proving by clear and
convincing to a reasonable certainty by the greater weight of the
evidence that the property is subject to forfeiture under
973.075 to 4
973.076 (3g) of the statutes is created to read:
973.076 (3g) Privileges.
The defendant or convicted offender may invoke the 7
right against self-incrimination or the marital privilege during the 8
forfeiture-related stage of the prosecution. The trier of fact at the hearing may draw 9
an adverse inference from the invocation of the right or privilege.
973.076 (3m) of the statutes is created to read:
973.076 (3m) Proportionality.
(a) The court may not order the forfeiture of 12
property if the court finds that the forfeiture is grossly disproportional to the crime 13
for which the person whose property was seized was convicted or that the forfeiture 14
is unconstitutionally excessive under the state or federal constitution.
(b) A person who is alleging that the forfeiture is grossly disproportional or is 16
unconstitutionally excessive under this subsection shall have the burden of 17
satisfying or convincing to a reasonable certainty by the greater weight of the 18
credible evidence that the forfeiture is grossly disproportional or unconstitutionally 19
(c) In determining whether the forfeiture is grossly disproportional or 21
unconstitutionally excessive, the court shall consider the following:
1. The seriousness of the offense.
2. The purpose of the statute authorizing the forfeiture.
3. The maximum fine for the offense.
4. The harm that actually resulted from the defendant's conduct.
(d) In determining whether the forfeiture is grossly disproportional or 2
unconstitutionally excessive, the court may not consider the value of the property to 3
973.076 (5) of the statutes is created to read:
973.076 (5) Innocent owners.
(a) Notwithstanding sub. (1) (b) 1., a person who 6
claims to have an ownership interest in property subject to forfeiture as an innocent 7
owner may petition the court for the return of his or her seized property at any time.
(b) A person who has an ownership interest in property subject to forfeiture 9
that exists at the occurrence of the illegal conduct giving rise to the forfeiture and 10
who claims to be an innocent owner has the burden of proving by clear and convincing 11
evidence that he or she has a legal right, title, or interest in the property seized under 12
(c) If the requisite showing under par. (b) has been made, in order to proceed 14
with a forfeiture action against the property, the state has the burden of proving by 15
clear and convincing evidence that the person had actual or constructive knowledge 16
of the underlying crime giving rise to the forfeiture.
(d) A person who has an ownership interest in property subject to forfeiture 18
that he or she acquired after the occurrence of the conduct giving rise to the forfeiture 19
and who claims to be an innocent owner has the burden of proving by clear and 20
convincing evidence that he or she has a legal right, title, or interest in the property 21
seized under this chapter.
(e) If the requisite showing under par. (d) has been made, in order to proceed 23
with a forfeiture action against the property, the state has the burden of proving by 24
clear and convincing evidence that the person had actual or constructive knowledge
that the property was subject to forfeiture or that the person was not a bona fide 2
purchaser without notice of any defect in title and for valuable consideration.
(f) If the state does not meet the burden under par. (c) or (e) as to any property, 4
the court shall find that the property is the property of an innocent owner and not 5
subject to forfeiture under this chapter and shall order the state to relinquish all 6
claims of title to the property.
973.076 (6) of the statutes is created to read:
973.076 (6) Return of property.
The court shall order the return of any 9
property subject to forfeiture under ss. 973.075 to 973.077 within 30 days of acquittal 10
or dismissal of charges for the offense which was the basis of the forfeiture action, 11
or 6 months after a seizure which was the basis of the forfeiture action if no charges 12
have been issued and no extension has been granted. If the property is co-owned by 13
2 or more defendants in a criminal action, and one or more defendant co-owners are 14
acquitted or the charges against him or her are dismissed, the judge shall have 15
discretion to the dispose of the co-owned property in accordance with the 16
proportionality guidelines in sub. (3m) as he or she deems appropriate.
973.076 (7) of the statutes is created to read:
973.076 (7) Attorney fees.
A person who prevails in an action to return 19
property subject to forfeiture under ss. 973.075 to 973.077 shall be awarded 20
reasonable attorney fees by the state. For the purposes of this subsection, a claimant 21
prevails if the person recovers more than 50 percent, by value, of the money or other 22
property that is claimed.
(1) This act first applies to property that is seized on the effective date of this 2