In order for property to be forfeited, it must first be seized by law enforcement who suspect it is connected in some way to a crime. After being seized, the property enters the civil court system, where it will be forfeited to the state unless the property owner objects in writing within 20 or 28 days.[15] If the property owner files a claim and challenges the forfeiture, the state must prove by a preponderance of the evidence “that the property is the proceeds of a crime, the substituted proceeds of a crime, or an instrumentality of a crime.”[16]

Some forfeiture cases in Michigan proceed under the state’s nuisance laws. Under these statutes, law enforcement, in the interest of the “public good,” can seize property thought to be involved in creating a nuisance.[17] According to state law, this includes buildings, boats, aircraft, vehicles or other real estate alleged to be used for “lewdness, assignation, prostitution, or gambling,” or used for the manufacture, transporting or sale of controlled substances.[18]

For controlled substances, state law says that, “Any money that is found in close proximity to any property that is subject to forfeiture ... is presumed to be subject to forfeiture. This presumption may be rebutted by clear and convincing evidence.”[19]

These loose standards of what constitutes a “nuisance” — assignation (typically planning a meeting with a prostitute) and lewdness — can be defined very broadly. This makes it easier for law enforcement to seize and take possession of property from people who may not be engaged in any illegal activity or whose property is not truly involved in the commission of any crime.

Unlike criminal forfeiture, civil forfeiture uses a two-track system in Michigan. Suspected criminals are processed in one track — the criminal justice system. Property suspected of being involved in a crime is processed in another — the civil justice system. These two tracks are independent, which allows for the seemingly contradictory judicial outcome in which property owners can be acquitted of any wrongdoing in criminal court (if they are even prosecuted), but still have their property found “guilty” in civil court and forfeited to the state.

Many civil forfeiture cases in Michigan never make it before a judge. The situation is similar in other states: In Minnesota, 97 percent of forfeiture cases related to DUIs and 95 percent related to illicit drugs were processed administratively, meaning no one legally challenged the state’s taking of property and there was no judicial hearing.[20]

The lack of judicial oversight in civil forfeiture cases is often the result of property owners recognizing that the cost of mounting a legal challenge exceeds their financial resources and often exceeds the value of the property itself. For example, the average proceeds per forfeiture in Minnesota was $1,408 in 2013.[21] It makes little sense to challenge a forfeiture in court if the cost of doing so, usually in the form of hiring an attorney, exceeds the value of the property at stake, or if it would be financially crippling for a person of modest means.