In a move that has bipartisan support from legislators and Attorney General Dana Nessel, Michigan is on the cusp of reforming civil asset forfeiture rules that are “some of the worst in the country.”
Under legislation introduced by a Republican in the state Senate and a Democrat in the state’s House, police and prosecutors will be required in most cases to secure a criminal conviction or a plea agreement before the state can keep property that has been seized during criminal investigations.
On Jan. 9, Nessel joined with both Democratic and Republican leaders on the floor of the state house to support the proposed reforms, and made a statement vowing that her office would work with legislators to “make certain that the language of the bills properly protects the residents of the state of Michigan against actions that violate their right to due process under the law.”
Under current Michigan law, police and prosecutors are allowed to consider property guilty until proven innocent. In effect, once the police have taken a person’s money or belongings, that person has to go to civil court to get their property back, even when they are found innocent of any crime—even in cases where they were never charged in the first place.
In addition to the legislature’s reform bills, Michigan’s civil forfeiture process is also being challenged in a lawsuit by a man whose car was confiscated by Lincoln Park police in 2015 because he didn’t have valid insurance.
According to a report by the Michigan State Police, in 2017 alone law enforcement agencies took roughly $13 million worth of property from citizens in more than 6,500 individual forfeitures. More than 1,400 of the people whose property was taken were never convicted of any crime, and in 2,876 cases, criminal charges had been brought, but the results of those trials were still pending at the time of the report.
The current law sets a “terrible example,” Republican Sen. Peter Lucido told Daily Kos, “because those police officers are to protect and serve, not take.” Lucido’s Senate Bill 2 reforming civil forfeiture advanced to its third reading on Feb. 6.
In Michigan, the police take assets primarily from the poor and minorities. According to the state police report, law enforcement agents take an average of $500 in cash from individuals, and the average value of a confiscated car is $1,000.
Democratic state Rep. David LaGrand, who has worked as both a defense attorney and a prosecutor, told Daily Kos, “I would routinely have to tell clients, ‘Look, you got $500 taken by the police. The merits of the case don’t really matter—it’s not possibly worth your while to hire me to try to get your money back.’” LaGrand has introduced legislation similar to Lucido’s Senate bill in the state House.
In addition to generally targeting lower-income Michiganders, forfeiture law has also led to blatant abuses of police power. Sen. Lucido recalled one of his cases involving a family with two children. The police broke down the family’s door, he said, and, in addition to other property, they confiscated $2.18 from one of the children’s piggy banks and also took a dartboard away from the crying, traumatized child. “On the stand, the cop was asked why he took those things and he replied, ‘Because I could,’” Lucido said. In another case, police confiscated a vintage car—and put 40,000 miles on it before finally returning the vehicle to its rightful owner.
According to ACLU of Michigan policy counsel Kimberly Buddin, Michigan’s forfeiture laws remain “some of the worst in the country” because police and prosecutors have an incentive to take people’s property to add to their own budgets. “Don’t get me wrong, a majority of law enforcement agencies don't actually use forfeiture,” Buddin told Daily Kos. According to analysis of the state police report by the Mackinac Center for Public Policy, 265 out of 673 Michigan law enforcement agencies used forfeiture in 2017. “But there have been cases where there's what we call ‘roadside negotiation,’” during which a police officer pulls someone over for a traffic stop, finds a small amount of marijuana or another drug, along with a few hundred dollars, and tells the person that if they hand all of it over on the spot, the officer won’t take the person to jail. The officers then turn the items over to law enforcement agencies.
Lt. Tim Fitzgerald, who serves as the commander of the Executive Resources Section of the Michigan State Police, told Daily Kos that his agency is officially neutral on Senate Bill 2. At the same time, he said, “We have some profound concerns about going to a criminal-conviction-only system.”
Fitzgerald claimed that “the majority” of people cited in the state police report who have their property taken but aren’t charged with a crime are receiving a break because they’ve chosen to become informants rather than go to court to secure either their freedom or their property. “These people lose their property and become informants and they do this with the full knowledge they won’t have a criminal conviction, and they don’t want a conviction” because of the housing and employment challenges faced by those with a criminal conviction on their records, he said.
While the state police are concerned about the possibility that convictions might be required to take a person’s property from them, others don’t feel that the current bills go far enough—including some of the people behind them. For one thing, the bills make an exception for confiscated property worth more than $50,000. Lucido and the ACLU’s Buddin agreed that while there is some justification for the exemption, neither of them is completely happy about it.
Lucido said the exemption was a compromise with law enforcement “... because, most of the time … those are individuals that will have no explanation where the cash or property came from,” like a tax return or other documents proving the money or property came from legal sources. But Buddin says “it should be noted that it's not illegal to carry around $50,000 or a $100,000 or a million dollars, and people shouldn't be criminalized for that.”
Jarrett Skroup, the director of marketing and communications for the Mackinac Center, told Daily Kos, “We certainly support these bills, but there is more work to do.” The center, a conservative think tank, first pointed out the issues with civil forfeiture in 1996. According to Skroup, only three states in the country are currently doing what he called “a really good job” regarding forfeitures. In those states—North Carolina, New Mexico, and Nebraska—requiring a conviction before the state can keep a person’s confiscated property is just the first step. In addition, law enforcement in those states must also prove that the property was gained through illegal activity.
“What we say is that if law enforcement doesn’t follow through with the criminal process, the onus should be on them to return the property—not force the person who had their property taken away to come claim it,” he said.
Dawn Wolfe is a freelance writer and journalist based in Ann Arbor, Michigan. This post was written and reported through our Daily Kos freelance program.