Moving Forward on Forfeiture Reform

Forfeiture is the process of transferring of property or cash from citizens to the government and is done at the state and national level. Sometimes, it happens through the criminal justice system. A person is charged with and convicted of a crime and the court determines if the the defendant acquired assets (usually cars or cash) through illegal activity. If the court says yes, those assets can be forfeited to the state.

But, increasingly, law enforcement is using civil forfeiture — a process which goes through the civil system rather than the criminal system. In civil forfeiture, assets can be transferred to the state without a person even being charged with a crime, much less convicted.

States can prohibit this practice, and Michigan has been moving in that direction. Last year, legislators passed a package of bills that would require a higher standard of evidence before property could be forfeited. It also required law enforcement agencies to report on the assets they seize. The Mackinac Center supported this legislation, testifying, hosting events and working with other groups to get the reforms passed.

But it is not enough. Our laws are still among the worst in the nation (previously Michigan may have been the very worst). Innocent people can still lose their property because the standard of evidence is too low. Law enforcement entities can keep up to 100 percent of the proceeds of what they take, which leads to bad incentives, exacerbating the issue.

One particular problem with Michigan’s current laws is the process to get property back. Police can seize property if it is suspected of being involved in criminal activity — for example, cars used to transport people to an establishment thought to be serving alcohol without a license. Once their property is seized, even if they are not charged with a crime, Michigan citizens have to pay money to even start the process of getting it back.

House Bill 4629, sponsored by Rep. Peter Lucido, R-Shelby Township, attempts to solve this. The bill would eliminate this fee, known as a bond. Only five states in the nation require a bond for forfeited property; Michigan should join the 45 who do not.

The Mackinac Center supported the legislation during committee testimony. The bill passed the Michigan House 100-7 and is now before the Senate.

Were the bonding bill to pass the Senate and be signed by the governor, it would be another good step toward the ideal system. Michigan should join other states like Montana, Minnesota, Nevada and North Carolina, which require a conviction before property can be forfeited. We should change law enforcement incentives by sending the assets from forfeiture to the state general fund, school fund or library fund.

Ideally, Michigan would pass laws like the ones in New Mexico and Nebraska, which eliminated civil forfeiture. There, laws were passed and signed that guaranteed the rights of people to go through a criminal trial where they need to be convicted and then have the same judge and jury determine if their property would be forfeited. And if the assets were forfeited, the money goes to the state’s general fund.

If New Mexico, a border state with a former prosecutor as governor, can pass forfeiture laws that strongly protect the constitutional rights of their citizens, so can Michigan.

To learn more about forfeiture in Michigan, and see what is happening at the legislative level, visit www.mackinac.org/forfeiture.