The Framers of the United States Constitution understood that freedom depends upon the vigorous protection of private property rights and that this protection was therefore the most sacred obligation of government. However, despite Fifth and Fourteenth Amendment guarantees, recent years have witnessed a massive expansion of a legal practice known as "asset forfeiture," which allows government to violate the very property rights it is charged with protecting.
Hundreds of asset forfeiture laws—many of them intended to stop illegal drug trafficking—give state and federal law enforcement agents the power to seize property even without proof of the owners’ guilt in a criminal trial because, in many cases, the government considers the property itself to be the criminal.
Use of forfeiture by authorities has exploded. In Michigan alone, law enforcement agents in a recent year used forfeiture laws in 9,770 instances to seize more than $14 million in private property.
This Mackinac Center for Public Policy report examines the practice of asset forfeiture in Michigan and recommends reforms to help authorities prosecute criminals while still protecting the property rights of innocent citizens and preserving the freedom and due process rights of everyone.
Michigan and federal policy makers should
Remove incentives for law enforcement agencies to employ asset forfeiture. End
the twin practices of allowing law enforcement agencies to profit from the sale of the
assets they seize and paying informants to provide information to help build forfeiture
cases.
End federal "adoption" of state forfeiture cases.
Shift the burden of proof from property owners to government.
Establish nexus and proportionality requirements for forfeiture.
Eliminate legal hurdles to citizens’ ability to challenge forfeiture. Lawmakers
should extend the length of time citizens are given to file claims to seized property and
eliminate the requirement that they post bond to do so. Successful claimants should be
reimbursed by the government for expenses incurred during forfeiture proceedings.
Require law enforcement agents to publicly justify forfeiture proceedings. Law
enforcement agencies should be required to publish an explanation each time they seize and
retain private property. The resulting public awareness will encourage self-restraint on
the part of law enforcement agencies.
Enact protections against forfeiture for innocent owners of property.
Give third-party creditors the chance to recover seized property.
Ensure that asset forfeiture reforms do not include an expanded definition of criminal behavior.
The principles of private property, limited government, and individual liberty that America’s founders cherished must be preserved for all generations. These reforms at the state and federal levels will help guarantee that the citizens of Michigan continue to enjoy the benefits of those principles and remain protected from unjustified and arbitrary seizure of their personal possessions.