Michigan Gets D-Minus Grade for Forfeited Property Profit Mongering

Even though Michigan took steps this year to restrict civil asset forfeiture and require more disclosure of the practice, an authority in the field says the state has not gone nearly far enough. The just-released second edition of the "Policing for Profit" report by the Institute for Justice gives Michigan a grade of D- and ranks it 44th in the nation for practices it uses under a state-federal forfeiture program.

In Michigan, civil forfeiture laws allow police agencies and sheriffs to keep 100 percent of the proceeds from items their officers seize, one item that contributed to the state's poor grade. According to Michigan State Police records, forfeitures here total $18.8 million worth of property a year on average.

Civil asset forfeiture is getting attention because it does not require a conviction for law enforcement to keep property seized on the suspicion of a crime. The legal obstacles to challenging a forfeiture action are so high that many people just walk away from their property, judging that the cost in fees and time doesn't justify the effort.

Moreover, when a seizure involves a suspected drug crime, the burden of proof is on the property owner to demonstrate that his property was not connected to the crime, making it even more likely that the law enforcement agency will keep what was forfeited.

In October, Michigan passed a law that significantly increases the amount of information on forfeitures that law enforcement agencies must report, and directs the State Police to assemble the data into a statewide report. A second bill raises the burden of proof for civil forfeitures from a preponderance of evidence that property was associated with a crime to clear and convincing evidence that it was.

This last change is far short of what the Institute for Justice considers the gold standard, which is to require an actual conviction before the government can keep the proceeds of property seizures. Short of that, IJ recommends that lawmakers tighten the standard of evidence to beyond a reasonable doubt.

In addition, Michigan still allows local police agencies to pocket forfeiture proceeds under Federal Equitable Sharing, which involves the U.S. Department of Justice in raids. Between 2000 and 2013, Michigan law enforcement agencies collected $127.6 million from such activities. Michigan law enforcement agencies have forfeited at least $270 million since 2001.

Recently, a federal audit of the program found that one Michigan township improperly used some its forfeiture proceeds. Plymouth Township spent the money on activities other than law enforcement, something not allowed under the federal program’s rules.

The federal government tightened the rules of its sharing program, but joint task forces like multicounty drug enforcement teams can still operate under the older standards. The IJ report finds that 97 percent of the equitable sharing proceeds in Michigan involve joint task forces and concludes that the latest federal rules will have little effect in Michigan.

IJ says the federal government’s program also deserves a D-, along with Michigan law. Federal forfeitures have exploded in the past 14 years, soaring from less than $500 million in 2001 to $5 billion in 2014.

“Research has shown that the financial incentives baked into civil forfeiture laws influence law enforcement behavior,” said Dick M. Carpenter II, an IJ research director and one of the authors of the report. “When laws make taking property relatively easy and lucrative for law enforcement, it should be no surprise to see agencies take advantage.”

The Institute of Justice is a public interest law firm that litigates forfeiture cases and promotes reforms nationwide. Only six states received grades of B or better in its report. New Mexico ranked at the top with an A-. Massachusetts and North Dakota were at the bottom of the list. Both received an F.