Asset Forfeiture Issue Arises With Clause in Human Trafficking Bills

Legislation aimed at cracking down on human trafficking could result in government taking more property from citizens in Michigan.

At issue is a "willful blindness" clause inserted into House Bills 5230 and 5233 that would allow government officials to take property from people who, while not involved with a crime, benefit by getting property as a result of some form of criminal activity. 

The American Civil Liberties Union of Michigan opposes the bills, saying the legislation expands the ability of government to force people to forfeit property without clearly written rules for doing so.

Rep. Klint Kesto, R-Commerce Township, sponsored HB 5233 and says the language is clear.

"Let us say someone who has no job or visible means of support is using and abusing women in ways that bring in money for him and he uses some of that money to buy his wife a car, and his wife just accepts the car as hers," Rep. Kesto said. "This would be a situation in which a reasonable person would believe the wife was intentionally acting — for her own convenience — as if she doesn't know where the money used to purchase the car came from. That would be an example of willful blindness.

"Now remember, we're talking about the forfeiture of property and it would still be left up to a judge and jury to decide whether willful blindness applied or not," Kesto added.

The bills define "willful blindness" as follows: "The intentional disregard of objective fact that would lead a person to conclude that the property was derived from unlawful activity or would be used for an unlawful purpose."

Shelli Weisberg, legislative director for the ACLU of Michigan, said the group does not believe the "willful blindness" definition would only be applied to clear-cut examples.

"Forfeiture laws are already being abused, the situations involved can be very murky and there are incentives for the abuses to continue," she said. "These bills basically expand forfeiture without providing the protections that basic fairness requires. People will continue to lose their property because they can't afford a lawyer, the state's burdens of proof are too light, and the state has perverse incentives to pursue forfeiture in unjust situations because it stands to benefit from the sale of forfeited property. If legislators care about private property like any good conservative would, they would oppose these bills and call for an end to state-sanctioned theft."

A key question is how broadly the proposed standards would be applied, said Jack McHugh, senior legislative analyst with the Mackinac Center for Public Policy.

"If the bills are limited to narrowly defined areas of the law, they would be less problematic," McHugh said. "However, if applied broadly, they would undermine the rule of law, opening the door for the state to unjustly seize property for its own purposes. First and foremost, the legislature should make sure the legislation’s scope is narrow."

Rep. Kesto said the legislation would be limited to a certain category of crimes, which includes human trafficking.

"This would not be applied across the board," he said.

But Weisberg said that based on the way the bills are drafted, the ACLU believes the "willful blindness" standard would be more broadly applied.

"This amends forfeiture beyond that only used in commission of human trafficking crimes," Weisberg said.

Rep. Phil Cavanagh, D- Redford Township, the sponsor of House Bill 5230, did not respond to requests for comment.

The bills are currently subject to hearings before the House Criminal Justice Committee