The Government Incentive to Seize Property

On Wednesday, the Mackinac Center for Public Policy hosted a forum at the Capitol to discuss the state's law on civil asset forfeiture and some of the glaring problems associated with it.

Lee McGrath, legislative counsel for the Institute for Justice; Dan Korobkin, deputy legal director of the American Civil Liberties Union of Michigan; and Rep. Jeff Irwin (D-Ann Arbor) comprised the panel. Despite hailing from dramatically different political backgrounds, all three agreed on the problem facing Michigan citizens and the preferred method to solve it.

McGrath opened the program by declaring, “To describe forfeiture is to condemn it.” Civil asset forfeiture law operates in a radically different way than criminal law, with far lower procedural safeguards. When authorities stop a driver or raid a person's house, the individual enters the criminal justice system, with the right to a public defender and the presumption of innocence until proven guilty.

In contrast, when a person's property is seized, it is "tried" under the far less rigorous safeguards of the civil justice system. A person who wishes to redeem his or her property through the court system labors under a burden to prove a negative — that the car, cash, or other seized object taken by authorities was not used to commit a crime, nor was it the proceeds of a crime.

In some cases an owner must pay a fee (called a bond) even to get a hearing before a judge. In addition, an indigent owner has no right to a public defender. Korobkin argued that this unfairly “punishes [defendants] for being poor."

The outcome of the criminal case — assuming charges are even filed — has no impact on the disposition of the individual's property. All three panelists cited instances of abuse, including citizens losing cars or large amounts of money without ever being charged with a crime.

One explanation why prosecutors and law enforcement continue to seize property under this law is the strong incentive it provides them: The proceeds from any seized property supplement local police budgets.

To demonstrate this, McGrath showed a video of the police chief of Columbia, Missouri, admitting that police regard anything gotten through civil asset forfeiture law as “pennies from heaven” and comparing confiscated items to “toys” for the department. The chief admitted that his department usually bases the decision to seize property on whether the item is “something that would be nice to have, that we can’t get in the budget for instance.”

To correct these abuses, Irwin and his colleagues are pressing for passage of a bipartisan package of reform bills. The Ann Arbor legislator praised the “confluence of philosophies” at the event, saying the fact that the speakers had differing backgrounds proved how important this issue was.

Irwin believes that the “straightest, most complete solution” is quite simple — require conviction of a crime for any forfeiture of property. This would link the two systems of criminal and civil justice and halt the theft of innocent citizens’ property. McGrath told the audience that New Mexico recently enacted this reform after abuses were publicly exposed.

Another piece to the solution is raising the burden of proof for forfeiture. Currently, the bar is set at the lowest standard, known as "preponderance of evidence." Irwin and the other panelists say this should be raised, at a minimum, to a more rigorous standard of "clear and convincing" evidence. Under the New Mexico reform and a bill sponsored by Irwin, the standard is the most rigorous level of all criminal prosecutions, "beyond a reasonable doubt."

Korobokin decried the system as having “no legitimate control and oversight." Irwin agreed that the requirements were lax, pointing out that there is really no enforcement behind the law and the reports that are filed aren’t that helpful. The House package of bills would require more detailed reports, which Irwin likened to requiring police to wear body cameras.

Irwin expressed confidence that the legislation would pass the House and advised people concerned about this issue to call their senators and tell them to support these reforms. He called this system "un-American" and told citizens to let their state lawmakers know that “we need some reform in this area.”

The reform package includes House bills 4504, 4505, 4506, 4507, 4508, 4499.

A video replay of the event: