A new bill in Michigan could curb a controversial police practice. Under civil forfeiture, someone does not have to be convicted of or even charged with a crime to permanently lose his cash, car or home to law enforcement.
Sponsored by state Rep. Jeff Irwin, the bill, HB 5213, would require a criminal conviction to forfeit property worth less than $50,000, related to the sale or possession of controlled substances. In addition, police officers and other government officials who participate in forfeitures that violate the bill would be “guilty of misfeasance in office.”
While the bill is narrow in scope, HB 5213 could significantly reduce the amount of property taken in Michigan. As Jarrett Skorup notes at Michigan Capitol Confidential:
In Michigan, if cash or property is valued at more than $50,000 a court proceeding is required for it to be seized. But if the amount is less than that, the seizing can be “streamlined” and taken administratively. Eighty-nine percent of assets were taken this way in 2012.
For its laws on civil forfeiture, the Wolverine State earned a D- from the Institute for Justice in its ground-breaking report, Policing for Profit. Currently, the government has to establish by a “preponderance of the evidence” that a property was involved in criminal activity to forfeit property. That is a much lower evidentiary standard than what’s required for a criminal conviction, which is “beyond a reasonable doubt.” So if HB 5213 is enacted, it would raise the bar, meaning prosecutors would need far more evidence to engage in forfeiture.
Michigan has recently witnessed several high-profile civil forfeiture cases. Two Detroit-area small business owners, Terry Dehko and Mark Zaniewski, had their entire bank accounts seized by the IRS, even though neither was charged with any crime. Over $100,000 in total was taken from the two men.
The IRS later backed down and returned the money they had seized. Represented by the Institute for Justice, Dehko and Zaniewski will continue a federal suit over the right of property owners to a prompt hearing in civil forfeiture cases.
An even more controversial incident occurred when Detroit police raided and seized cars at an art gala. Writing in The New Yorker, Sarah Stillman reported that at the Contemporary Art Institute of Detroit in May 2008,
…forty-odd officers in black commando gear stormed the gallery and its rear patio, ordering the guests to the ground…After lining the guests on their knees before a “prisoner processing table” and searching them, the officers asked for everyone’s car keys. Then the raid team seized every vehicle it could find, even venturing to the driveway of a young man’s friend nearly a mile away to retrieve his car. Forty-four cars were taken to government-contracted lots.
As Stillman elaborates, it was hardly worth a military-style raid:
According to police records, the gallery lacked proper city permits for after-hours dancing and drinking, and an old ordinance aimed at “blind pigs” (speakeasies) and other places of “illegal occupation” made it a crime to patronize such a place, knowingly or not…“blind pig” raids around the city routinely result in the confiscation of dozens, sometimes hundreds, of cars.
Since police can pocket 100 percent of the proceeds from civil forfeitures in Michigan, they have a powerful incentive to “police for profit.” Since 2001, law enforcement agencies have seized over $250 million worth of property and cash.
According to Rep. Irwin, asset forfeiture has “spun out of control:”
“We need to change how asset forfeiture works. By requiring a person be convicted of a crime before their seized property is subject to forfeiture, we will stop the worst abuses and curtail the insidious incentives that lead some law enforcement to short circuit due process and the fundamental principle that a person is innocent until proven guilty.”
This bill is not the only forfeiture reform currently pending in the Michigan legislature. In October, HB 5081 was introduced as a bipartisan attempt to increase transparency for property seizures and forfeitures. That bill is currently before the House Committee on Criminal Justice.
Other states have enacted forfeiture laws this year, with wildly differing results. In Utah, the state legislature unanimously voted to weaken legal protections for property owners and eliminate safeguards against profiteering by cops.
Meanwhile, in Tennessee, a bill was introduced that would have abolished civil forfeiture. But as Americans for Forfeiture Reform reported in April, “the entire wording of the bill (HB1078 in the House) was literally deleted and new wording replaced it.” So while the new bill was enacted, policing for profit is still a threat.
-- Nick Sibilla
Nick Sibilla is a writer at the Institute for Justice