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Research & Commentary: Michigan Lawmakers Continue Effort to Reform Civil Asset Forfeiture Laws

February 16, 2018

In this Research & Commentary, Matthew Glans examines a new bill introduced in the Michigan Legislature that would prohibit civil asset forfeitures unless a suspect is found guilty of a crime in court.

In recent years, states have taken many steps toward limiting the ability of law enforcement agencies to seize property from criminal suspects without conclusive evidence a crime has been committed – a process known as civil asset forfeiture. Civil asset forfeiture can occur without bringing criminal charges against those whose assets have been seized.

A new bill has been introduced in the Michigan Legislature that would prohibit forfeitures unless a suspect is found guilty of a crime in court. The bill would take effect next year and would only apply to seizures under $50,000. This proposed standard would cover the majority of seizures while leaving the process open for seizures related to its original intention: drug racketeering.

Analysts at the nonpartisan Institute for Justice (IJ) have given the State of Michigan’s civil asset forfeiture laws a grade of D-, one of the lowest grades in the country. Legislators in Michigan have taken some steps toward improving their seizure laws. In October 2015, the Michigan Legislature passed a series of reforms that raise the standard of proof from “preponderance of evidence” to “clear and convincing evidence,” in addition to implementing new reporting requirements on how much property has been forfeited, where it came from, and whether a person whose property was seized was charged with a crime. In 2016, Gov. Rick Snyder (R) signed a bill that ended a bond requirement mandating citizens pay 10 percent of the value of the asset to contest a seizure.

Despite these reforms, Michigan’s civil asset forfeiture laws still create a substantial incentive to seize for state law enforcement agencies. One rule in particular places a massive burden on property owners: When a seizure involves drug activity (which is true for a majority of seizures) innocent owners bear the initial burden of proving their innocence or ignorance before they can reclaim their property.

Another big problem with Michigan’s forfeiture laws is related to how proceeds are spent. Under current law, Michigan law enforcement agencies may retain up to 100 percent of forfeiture proceeds. This gives these agencies an incentive to seize, as all the funds can be used to benefit their departments. (Most states split these funds with other government programs, such as the state’s education department.) According to IJ, between 2001 and 2013, Michigan law enforcement agencies reported “more than $244 million in gross forfeiture proceeds, averaging almost $19 million per calendar year.”

Another issue with Michigan’s forfeiture policies is the state’s use of equitable sharing arrangements, whereby local law enforcement and federal officials agree to classify the suspected criminal activity as a federal crime and divide the seized assets between them. The federal agencies receive between 10 and 20 percent and the local police get the remainder. IJ argues Michigan’s law enforcement agencies have made extensive use of the Department of Justice’s equitable sharing program over the years, ranking the state 44th nationwide in that category, with first place being the state that uses equitable sharing the least. According to IJ, between 2000 and 2013, Michigan law enforcement agencies received “$127.6 million in equitable sharing proceeds from the DOJ, averaging $9.1 million per calendar year.”

Assets should be seized only for criminal reasons, and law enforcement should not have incentives to seize any more property than is necessary and justified. Michigan should end seizures without conviction and close the equitable sharing loophole.

The following documents provide additional information about civil asset forfeiture
 

Policing for Profit: The Abuse of Civil Asset Forfeiture 2nd Edition
http://ij.org/wp-content/uploads/2015/11/policing-for-profit-2nd-edition.pdf
Dick Carpenter, Lisa Knepper, Angela Erickson, and Jennifer McDonald argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Civil forfeiture threatens the constitutional rights of all Americans. Using civil forfeiture, the government can take your home, business, cash, car or other property on the mere suspicion that it is somehow connected to criminal activity—and without ever convicting or even charging you with a crime. Most people unfamiliar with this process would find it hard to believe that such a power exists in a country that is supposed to recognize and hold dear rights to private property and due process of law,” they write.

An Overview of Recent State-Level Forfeiture Reforms
http://www.heritage.org/crime-and-justice/report/overview-recent-state-level-forfeiture-reforms
Jason Snead of The Heritage Foundation examines civil asset forfeiture and how states are moving to reform their forfeiture laws.

Policing for Profit: Federal Equitable Sharing
http://ij.org/report/policing-for-profit/federal-equitable-sharing/
In this report by The Institute for Justice (IJ), IJ examines federal equitable sharing laws and the effect they have on property seizures in the states. 

Civil Asset Forfeiture: 7 Things You Should Know
http://www.heritage.org/research/reports/2014/03/civil-asset-forfeiture-7-things-you-should-know
This Heritage Foundation Factsheet outlines several important things people should know about civil asset forfeiture.

Playing Both ‘Cops and Robbers’ on Asset Forfeiture
https://www.heartland.org/news-opinion/news/playing-both-cops-and-robbers-on-asset-forfeiture?source=policybot
Jesse Hathaway, the managing editor of Budget & Tax News, examines in this article a new digital system that allows highway patrolmen to use civil asset forfeiture laws to seize individuals’ assets stored in bank accounts or on prepaid debit cards at the press of a button. “Civil asset forfeiture creates too many perverse economic incentives. However well-intentioned the idea may be, the practice of civil asset forfeiture has been corrupted and now infringes on Americans’ right to be free from harassment by money-hungry agents of the government,” wrote Hathaway.

The Civil Asset Forfeiture Racket
http://reason.com/archives/2014/09/24/the-civil-asset-forfeiture-racket
A. Barton Hinkle of the Reason Foundation examines the growing problems created by civil asset forfeiture and argues for repeal of such laws.

Policing for Profit: The Abuse of Civil Asset Forfeiture
https://www.heartland.org/policy-documents/policing-profit-abuse-civil-asset-forfeiture
Marian Williams, Jefferson Holcomb, Tomislav Kovandzic, and Scott Bullock argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent,” they write.

Civil Asset Forfeiture Reform Goes Mainstream
https://www.heartland.org/policy-documents/civil-asset-forfeiture-reform-goes-mainstream
Jordan Richardson of The Heritage Foundation discusses how the growing number of civil asset forfeiture abuses have drawn the attention of news media and suggests the increased attention may lead to real reform.

Sidebar: Stricter State Law, More Equitable Sharing
http://ij.org/report/policing-for-profit/federal-equitable-sharing/stricter-state-law-more-equitable-sharing/
The Institute for Justice examines a 2011 study published in the Journal of Criminal Justice by criminologists Jefferson Holcomb, Tomislav Kovandzic, and Marian Williams that found local and state law enforcement agencies in states choosing to make civil forfeiture more difficult and less financially rewarding through state laws have tended to turn to federal equitable sharing to make up for lost funds.

 

Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and PolicyBot, Heartland’s free online research database.

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Author
Matthew Glans joined the staff of The Heartland Institute in November 2007 as legislative specialist for insurance and finance. In 2012, Glans was named senior policy analyst.
mglans@heartland.org @HeartlandGR