Modest Police Forfeiture Reform in Michigan Makes It to Governor's Desk
Increases burden of proof, requires more transparency
Michigan police will not be giving up the authority to seize and keep property from people suspected of crimes, but it may soon become just a little bit harder.
The state's legislature has passed some very modest reforms on how civil asset forfeiture works. Civil asset forfeiture is the process by which police seize money and property taken during criminal busts (often drug-related) and keep it for themselves. The system has become significantly prone to abuse because the "civil" component means police can often keep this property without ever having to get a conviction for a crime. Sometimes people are never charged at all, but in order to get their property back, the burden on proof is on them to convince a court that the property or cash itself is "innocent" of being involved in crime.
Michigan's asset forfeiture laws are particularly bad. Jacob Sullum detailed the problems in June when reform legislation was introduced. In Michigan, police are able to keep all of what they seize, so the financial incentives for seizure are huge. Law enforcement agencies in Michigan report seizing nearly $24 million in assets from drug busts for 2014. Those numbers may be understated, though. Michigan does not require each law enforcement agency to report its seizures to the state, and several did not. Also of note, according to the The Detroit News, the vast majority of seizures, 81 percent, were handed through the administrative process. That means that, yes, police are deliberately attempting to snatch people's stuff regardless of whether they can even prove a crime happened. It's the path of least resistance.
Michigan police will still be able to force civil asset forfeiture if Republican Gov. Rick Snyder signs the legislation. But they'll have to present "clear and convincing" evidence that the property and assets they want to seize are connected to a crime. This is a higher than the current legal threshold of "preponderance of evidence," though lower than the criminal "beyond a shadow of a doubt."
The legislation will also require law enforcement agencies to annually report their seizures and the amount of money they're getting, so next year the law enforcement agencies who didn't participate in the state's analysis would be obligated to.
This all is weaksauce compared to the extensive reforms that New Mexico passed earlier in the year. They now require a criminal conviction in order to snatch somebody's property and assets, and they don't even get to keep the money. But given that police unions managed to completely kill asset forfeiture reform in California recently, even modest reforms are worthwhile.