Property Doesn't Commit Crimes, People Do

On October 3, 1988, police found Royal Oak resident John Bennis engaging a prostitute in the front seat of his car. Bennis was convicted of indecency and fined $250. But what they did to his wife highlights an abusive practice by law enforcement authorities known as civil asset forfeiture. It’s a practice that cries out for reform.

The police obtained a civil court order to seize Bennis’s car as a public nuisance. Tina Bennis, who as John’s innocent wife endured the troubles and embarrassment that attended her husband’s indecency, held half ownership in the vehicle. She had purchased the car with her babysitting income and used it to transport the couple’s five children to and from school, but the authorities refused to recognize that she had any interest in the vehicle. In a 1996 decision with far-reaching implications, the U. S. Supreme Court agreed with an earlier Michigan Supreme Court ruling and allowed the government to punish Tina Bennis for the actions of her husband by keeping the car.

On the morning of October 6, 1992, federal authorities raided the homes of James Fouch and his two sons in Grand Rapids, Michigan. Suspecting the Fouch family of engaging in a loan fraud scheme, the agents came armed with search warrants and a civil forfeiture order. They seized hundreds of thousands of dollars’ worth of property that they alleged was derived from embezzlement activities. By June 1994, all of the property had been sold at auctions, putting over $500,000 in the pockets of the federal government.

The problem with this is that no criminal charges were ever filed against any member of the Fouch family, and no finding of guilt was ever made in a court of law. In civil asset forfeiture cases, the government may do little more than meet a low threshold of evidence and then allege that criminal activity has taken place. It then gains the power to seize and keep the property of citizens.

The concern over civil asset forfeiture is bipartisan and growing. Citing evidence from the Michigan Association for the Preservation of Property, Republican Congressman Henry Hyde of Illinois notes that law enforcement agencies in Michigan alone used forfeiture in 9,770 instances in a recent year—confiscating more than $14 million in private property. In the vast majority of cases, the authorities suspected violation of drug laws. Democratic Congressman John Conyers of Michigan summarizes forfeiture law as intended to give police the power to confiscate the property of major drug dealers but which "mostly ensnares the modest homes, cars, and hard-earned cash of ordinary, law-abiding people."

The protection of private property rights is a fundamental condition for the maintenance of a free society and one of the most important obligations of government. The Fifth Amendment to the U. S. Constitution provides that "no person . . . shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Because the theory behind civil asset forfeiture is that it’s the property, not the individual, that commits the crime, the courts have allowed its use to grow into an all-too-common practice. This legal fiction allows the government to prosecute property, leaving the owners themselves without the rights normally available to accused persons. But the very notion does violence to this truth: people commit crimes, inanimate property does not.

Federal agents are given seizure power under more than 200 different statutes. In Michigan, numerous state statutes are on the books as well. Fortunately, in comparison to federal law, Michigan law applies somewhat stricter standards that must be met before property can be seized. But still very apparent in Michigan is the legal fiction that inanimate objects can be guilty of wrongdoing.

Reform of Michigan’s civil asset forfeiture laws is long overdue, but the legislature has so far shown little interest. A report to be released this summer by the Mackinac Center for Public Policy will outline the problem and suggest a number of possible changes in the law. Those changes will be controversial, but at least one is sure to gain widespread public support: eliminating the financial incentives for law enforcement officials to overuse and abuse the asset forfeiture system.

Because law enforcement agencies that employ asset forfeiture normally retain the cash or profits from the sale of seized property, they consistently oppose reform of forfeiture law. But most citizens are repelled at the thought that law enforcement decisions should be influenced by how much the authorities think they might rake in by their actions.

The time for serious and thoughtful discussion in Michigan about asset forfeiture is now. Let’s move this important issue to the front burner and enact reforms that will allow the authorities to prosecute criminals while still protecting the property of the innocent and the due process rights of everyone.