Civil Asset Forfeiture

Michigan Legislators Consider Making It More Difficult for Police to Steal

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Michigan legislators have introduced a pair of bills that would reform the state's asset forfeiture laws, which currently enable law enforcement agencies to seize property from innocent people easily and profitably. Michigan police departments and district attorneys have padded their budgets to the tune of $70 million in the last three years via forfeiture, according to Lee McGrath of the Institute for Justice,* a law firm that litigates asset forfeiture.

HB 5212 would require a criminal conviction before the police and prosecutors can forfeit property. Such a change is desirable because Michigan police and prosecutors have an unfortunate habit of taking peoples' stuff even when the criminal charges that supposedly justify the forfeiture are dropped, dismissed, or otherwise jettisoned.

HB 5081, meanwhile, would require seizing agencies to compile detailed reports on their forfeiture activities. Such a change is desirable because, apart from aggregates and anecdotes, information (on what is being seized, from whom, and why) is hard to come by. Also, transparency may encourage police to use funds more judiciously.

From Michigan Capitol Confidential:

"Asset forfeiture was sold as a needed tool for law enforcement to attack drug kingpins and gang leaders," says Rep. Jeff Irwin (D-Ann Arbor), sponsor of HB 5213. "[But] too often, law enforcement uses the current asset forfeiture law to take tens of millions of dollars every year, mostly from low-level users and small-time dealers."

Of course, the law routinely ensnares innocent people. We find out about them when they go to court. But some not-inconsequential number of forfeitures involve innocent owners who opt against a legal fight to recover items worth less than the cost of a lawyer.

Still, Irwin's statement is probably an accurate description of many forfeitures. Law enforcement was given the power to forfeit property sans criminal conviction in order to target notorious underworld characters and their conspicuous displays of wealth (for the children! lest they grow up idolizing drug lords). Instead, police use civil forfeiture to bust low-level offenders—at the expense of other duties.

Unfortunately, while both the bills would make for improved policy, neither would put forfeiture abuse to bed. Stephen Dunn, a Troy, Michigan-based attorney suggests to the Michigan Capitol Confidential that more complete reform:

requires notification to the property owner within a certain amount of time, criminal proceedings within a timeframe, the release of seized funds if they are required to pay for legal defense, a way for property to be returned and litigation costs paid if a defendant is not successfully prosecuted by the state.

Additionally, neither bill addresses federal equitable sharing, a program that allows local police to turn their cases over to the feds. Police do so in order to sidestep state forfeiture laws that contain stronger protections for property owners than federal law. As the federal government is behind some of the most officious abuses of forfeiture in Michigan, this is not a small oversight.   

But the perfect need not be the enemy of the good. Either or both bills will improve prospects for property owners unfairly separated from their belongings.

*I work part-time for the Institute for Justice on a project unrelated to forfeiture.