Michigan should change its current civil forfeiture laws to do a better job protecting the rights of its citizens and ensure that innocent people do not have their assets turned over to the government. The following are three recommendations that policymakers should consider, listed in order of importance.
First, Michigan should end civil forfeiture and only allow property to be forfeited through the state’s criminal forfeiture process. Prosecutors should be required to obtain a conviction of a suspect in criminal court as a prerequisite to the forfeiture of property. The state of North Carolina uses such a policy — someone’s property may not be forfeited to the state unless that person has been convicted of a crime. Minnesota passed reforms to its civil forfeiture law in 2014 that require the state to get a criminal conviction before property can be forfeited. Nevada and Montana made similar reforms in 2015.
New Mexico banned civil forfeiture with a bill passed unanimously by the state House and Senate in 2015. This new criminal forfeiture law in New Mexico protects innocent citizens by ending the two-track process and requiring all asset forfeiture cases to be processed in the criminal justice system. Just like in North Carolina, Minnesota, Nevada and Montana, a person must first be convicted of a crime before his property can be forfeited, and the same judge and jury (in criminal court) must determine if the property should be forfeited.
The New Mexico law also includes an “anti-circumvention provision,” which limits local law enforcement’s ability to skirt these rules by teaming up with federal officials. It provides a strong innocent owner defense, which shifts the burden of proof to the government to prove that all the owners of property knew or consented to the use of the property by the suspected criminal before their share of the property can be forfeited. In other words, referring back to the Bennis case, Tina Bennis would have never had her share of the family car forfeited to the state if she lived in New Mexico, because she claimed not to have consented or known of her husband’s illegal activity involving the vehicle.
Second, the state should require more transparency of law enforcement’s current use of forfeiture. The current reporting requirements are weak and do not provide enough information about how much civil forfeiture is being used by law enforcement.[*] In the most recent forfeiture report, the Michigan State Police acknowledge that the report “is not considered to be inclusive of all asset forfeitures within Michigan” and that “many asset forfeiture proceedings involve multiple agencies and a portion may have been inadvertently left out due to a misunderstanding of which agency would report the asset forfeiture.” Michigan taxpayers should be able to get all the facts about all the forfeiture proceedings once an investigation is complete.
Lastly, the Legislature should reduce the incentives faced by police and prosecutors to abuse civil forfeiture to pad their budgets. Current law allows forfeiture proceeds to be sent back to law enforcement agencies and into police budgets. This should be changed to require that money and the proceeds from auctioned assets go to a separate government department. Some states, such as Maine, send the money to the state’s general fund or a fund used for public education.
Though Maine allows for civil forfeiture, its law removes the direct monetary incentive for law enforcement by requiring assets to go to the state’s general fund. Michigan should follow suit or require funds to go to the local city council or county commissioners to determine how the money would be spent. Another option would be to mandate that forfeiture proceeds go to Michigan’s long-time underfunded teacher and state employee retirement systems. Maine achieves the highest grade among the states on the Institute for Justice’s national report card.
Appendix A contains model legislation developed by the Institute for Justice that would achieve these reforms.
[*] At the time of this writing, a package of bills to improve Michigan’s civil forfeiture reporting requirements had passed the state House by a vote of 107 to 2. Anne Schieber, “Bills Aiming to Protect Property from Overzealous Forfeiture Clear First Hurdle,” Michigan Capitol Confidential (Mackinac Center for Public Policy, June 5, 2015), http://perma.cc/Z4X8-Q92V.