The recent reforms made to Michigan’s forfeiture laws have led to fewer cases being litigated, fewer people losing their property without being charged with a crime and, seemingly, fewer instances of lawful property owners being treated improperly. But there are still too many cases of Michiganders losing their assets without being convicted of, or even charged with, a crime.
One remaining problem with Michigan’s forfeiture laws is that too many cases are still processed through the civil forfeiture system. Legal rules and deadlines used in civil forfeitures create many hoops people must jump through when their assets have been seized.
Civil litigation is complex. Most Michiganders do not know how it works. In order for property owners to require the government to get a criminal conviction before forfeiting their property, they must officially answer a civil forfeiture complaint. That answer must be filed in civil court within 20 days of the property owner receiving a copy of the complaint.[25] Many property owners fail to respond in time.
Other states have addressed this problem by ending civil forfeiture altogether and requiring all forfeitures be conducted through the criminal forfeiture process. This puts the onus on the government, not individual citizens, and ensures the accused of access to an attorney who can fight for their property rights.
Another reason why many forfeitures still happen in civil court is that Michigan’s forfeiture laws do not require a criminal conviction if the assets in question are valued at more than $50,000.[26] In other words, if law enforcement seizes more than $50,000 in cash, or an expensive car, or a home, they can forfeit these assets through the civil process without ever convicting (or even charging) a person with a crime.
In addition, the criminal conviction requirement only applies to illegal activities involving controlled substances, or illicit drugs. Other forfeiture statutes related to nuisances, identity theft, driving while intoxicated, drag racing and other crimes do not require a criminal conviction prior to forfeiture.
Another problem is that Michigan’s forfeiture laws still don’t fully protect people from abuse. For instance, law enforcement may seize property when it has probable cause that the property is associated with criminal activity. But this low evidence standard means that police can retain possession of someone’s property while waiting for the slow gears of justice to move. This can happen even when prosecutors only have a remote chance of mounting a criminal case.
This can drag on for a long time, especially if law enforcement is not proceeding in a prompt and fair way. In the Highland Park example highlighted above, police apparently seized this family’s entire business and thousands of dollars in assets and held them for well over a year without prosecutors charging anyone with a crime.
Michigan’s forfeiture laws do not require prosecutors to prove a person is guilty of a crime and that the property resulted from or was instrumental to the crime. In Wayne County, for instance, law enforcement seized 2,600 vehicles over two years through an operation targeting neighborhoods with high drug and prostitution use.[27] Even if people were breaking the law, that does not mean that their vehicles were involved in or instrumental to this illegal activity. In other words, just because a person violates a drug law does not entitle law enforcement to take their vehicle and cash. These could have been gained through legal means and should only be considered for forfeiture if prosecutors can prove a link between the property and the criminal act.
These remaining problems with Michigan’s forfeiture law may seem daunting, but there is a rather simple solution that several states are using. Like Nebraska, New Mexico, Maine and North Carolina, Michigan should eliminate civil asset forfeiture altogether and only allow criminal forfeiture. This would require the government to prove first that someone was guilty of a crime and then show, in that same criminal court, that the seized assets were gained through or used in the crime. In criminal court, prosecutors would have to demonstrate a person’s guilt beyond a reasonable doubt and prove the link to the property by a preponderance of the evidence.