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. State law enforcement
agents should be prohibited from asking federal agents to "adopt" forfeiture
cases. Michigan property owners should not have to fight the full resources of the federal
government, whose forfeiture laws provide less of a barrier to asset seizure.
Shift the burden of proof from property owners to government. Property owners must
currently establish the "innocence" of their property once it has been seized.
Government should be required to show proof that disputed property is connected to illegal
activity before it can be seized.
Establish nexus and proportionality requirements for forfeiture.Current law should
be changed to require government to show connection between specific property and a
crime for which guilt has been found. The amount of property seized should be in
proportion to the crime committed by its owner.
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.Language in
forfeiture statutes should be strengthened to ensure that property owners who have
not participated in, or acquiesced to, a crime committed with their property are not
punished with forfeiture.
Give third-party creditors the chance to recover seized property.Innocent third
parties with an interest in seized property, such as lien holders, should be given a
judicial remedy to recover against the government.
Ensure that asset forfeiture reforms do not include an expanded definition of criminal behavior. If asset forfeiture is allowed only upon proof of a related crime, lawmakers
should resist any urge to broaden the definition of criminal behavior to include currently
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.