B. The Scope of Civil Asset Forfeiture Statutes

Law enforcement officers are given the power to seize property under a plethora of statutes dealing with a variety of illegal activities, nuisances, and otherwise proscribed conduct. Federal agents alone are given seizure power under more than 200 different statutes. These statutes reach property related to a variety of violations, including possession of illegal firearms, uninspected meat, diseased poultry, and drugs; conveying illegal aliens; using animals for fighting; laundering money; using equipment unlawfully in a national park; acquiring a corporation in violation of antitrust law; failing to report cash in excess of $10,000 when traveling across the border; and unlawfully importing pre-Columbian art. Numerous seizure statutes also exist in Michigan. Those statutes dealing with controlled substances such as drugs, however, are the most often employed by law enforcement and the most sweeping in their reach. These include Sections 333.7521-333.7525 of the Michigan Compiled Laws and Section 881 of Title 28 in the U.S. Code.

Anything that is "furnished or intended to be furnished in exchange for a controlled substance or . . . traceable to an exchange for a controlled substance" is subject to forfeiture under Michigan law. The forfeiture statute also provides that "money that is found in close proximity to any property that is subject to forfeiture . . . shall be presumed to be subject to forfeiture." The state need not demonstrate a connection with a specific incident of drug dealing for an asset to be forfeited. Rather, assets need only be traceable to drug trafficking in general.

In Michigan, the prosecution must prove by a preponderance of the evidence that the assets should be subject to forfeiture due to a "substantial connection" between the property and illegal behavior. Though preponderance of evidence must be shown at trial, only probable cause is necessary to initially seize the property. A "preponderance of evidence" standard is stricter than "probable cause" (the standard required to obtain a search warrant), but less demanding than the standard required to find a defendant in a criminal trial guilty "beyond a reasonable doubt."

By contrast, most federal forfeiture laws require only a showing of probable cause that an asset is connected to an illegal activity before it is subject to forfeiture. Probable cause is more than a mere suspicion but much less than prima facie proof or proof beyond a reasonable doubt. It is merely the showing of a "reasonable ground for belief" that there was an illegal activity to which this property had a substantial connection. In either case, the state need not obtain a finding of guilt of a crime in a criminal court before subjecting a citizen to the punishment of forfeiture.

Once the state has met its limited burden, the burden shifts to the owner to establish his property’s innocence by a preponderance of the evidence (under both federal and Michigan laws). But under federal law, a strong preference is given to the government. By shifting the burden to the owner, both jurisdictions ignore the strongly defended presumption against the state involved in a criminal trial.

Despite the owner’s role in the trial, however, the proceedings are considered in rem civil proceedings—that is, against the "guilty" property and not a person. This legal fiction proceeds on the assumption that inanimate objects can be guilty of wrongdoing yet not protected by the rights available to persons. Though this personification of inanimate objects is heavily criticized and often described by judges as an anomaly or "archaic theory," most judges nonetheless feel compelled to follow the longstanding precedent establishing the fiction. However, the fact that a legal doctrine exists does not establish that it ought to exist, constitutionally or otherwise.

Because the proceedings are in rem and civil, most of the normal protections afforded criminal defendants do not exist in forfeiture proceedings. Thus, the right to an indictment, the presumption of innocence, the right to effective assistance of counsel, the right to a jury trial, the right not to be punished prior to adjudication of guilt beyond a reasonable doubt, the right not to be punished in a manner disproportionate to the crime, the general presumption that the state prove culpability, and the practice of resolving legal ambiguities in favor of the defendant all do not apply. Many of the limitations on government action normally attendant to a criminal trial are likewise eliminated. Civil discovery is but one example: It allows the state broad evidence-gathering tools, including the ability to compel production of certain evidence from the owner. Thus, the civil forfeiture scheme ignores the policy that imposing punishment—despite court rulings, the seizure of property can be nothing else—is meant to be difficult. Consequently, the government often has an incentive to use this less difficult route as a substitute for criminal prosecution.

In federal civil forfeiture proceedings, probable cause may be based wholly on circumstantial evidence. The preponderance standard in Michigan makes it slightly more difficult to sustain a forfeiture on circumstantial evidence alone, but not so difficult as to block many government attempts to obtain a forfeiture.

Many of the rights guaranteed in most civil proceedings are also not available. For instance, the right to a jury trial protected under Michigan’s Constitution in Article I, Section 14, applies only to civil actions at law that were triable by a jury at the time the constitutional guarantee was adopted. Traditionally, there was not a right to a jury trial in equitable matters unless created by statutory law.

Because forfeiture proceedings are recognized as quasi-criminal in nature, some of the rules of evidence applicable in a criminal trial also apply in forfeiture proceedings in Michigan, creating some level of protection to owners. Much of Fourth Amendment law regarding searches and seizures, including the exclusionary rule, can work to bar admission of evidence in a forfeiture proceeding. Moreover, hearsay is inadmissible in a forfeiture proceeding in Michigan, though federal forfeitures allow otherwise inadmissible hearsay to prove the probable cause necessary to sustain a forfeiture.

The Supreme Court has also upheld an avenue for challenging the proportionality of a forfeiture. Holding that the Excessive Fines clause of the Eighth Amendment applies to civil forfeiture proceedings in Austin v. United States, the Court sustained an important means for judicial control on proportionality. Though the means may exist, it is another question whether it will serve as a successful tool. Though the provision applies, reaching a determination of excessiveness is extremely difficult. Determining the amount of property "tainted" and therefore subject to forfeiture is not easy, especially under current standards and because the state need not prove that property is related to an actual crime. Proportionality tests will provide little protection so long as the state can take any property for which there is probable cause to believe it is connected to a crime. In other words, the state really need only show that the property might have been related to what might have been a crime.

Often, the government takes property on the spot through a "seizure without process." Following such an action, the Michigan government must promptly institute formal in rem forfeiture proceedings and provide notice to the owners. Such promptness and notice has been found necessary to comply with the due process requirement of the Michigan Constitution, Article I, Section 17. For certain property, such as drugs and other items which are illegal to possess, however, individuals can have no claim of ownership and summary forfeiture is allowed without any requirement that process ever be afforded.

The hurdles to challenging a forfeiture are high. The owner usually must file a claim within ten or twenty days following notice and must post a bond (normally ranging between $250 and $500) with sureties in order to successfully file. A claimant cannot be his own surety. Court costs and attorney fees also add to the burden. If a claim is not filed pursuant to these requirements, the owner has not perfected his right to a judicial proceeding and the property is declared administratively forfeited. The owner loses any ability to recover the property absent a separate suit challenging the constitutionality of the action or the statute, or through a petition for mercy to the attorney general or seizing authority. These remedies also remain when a judgment is rendered adverse to the owner in the government-initiated forfeiture proceeding. In other words, an owner who loses his property might still seek an appeal to either a court or the political branches in an effort to have the forfeiture reversed.