Michigan forfeiture laws need further reform

• Jarrett Skorup is a policy analyst at the Mackinac Center for Public Policy.
• Nick Sibilla is with the Institute for Justice, which represents forfeiture victims

Michigan is one of just a few states in the nation where police can not only take cash and cars from people who have done nothing wrong, but where the owners of this property actually have to pay to get it back.

Thanks to civil forfeiture, law enforcement agencies routinely take property from people without charging them with a crime, much less convicting them of one. Once a property has been seized, the owners then have to pay anywhere from $250 to $5,000 just to begin the procedure to win back what’s rightfully theirs.

Under Michigan law, if your property is seized and valued less than $50,000, you must post a bond worth 10% of the property’s value to start the process of having it returned to you. But if you fail to post that bond within 20 days of the property being seized, it is automatically forfeited to the state.

And if you pay the bond but fail to win the property back in court, you can be ordered to pay the expenses the government incurred during the forfeiture proceedings. These provisions unfairly tilt the scales of justice in favor of the government.

A bill that would eliminate this practice is being considered in Lansing. House Bill 4629, introduced by state Rep. Peter Lucido, R-Shelby Township, would abolish the bond requirement entirely for all drug-related forfeiture proceedings. If enacted, the bill would also end the state’s ability to charge people who fail in court to win their property back. The bill recently passed the State House on a 100-7 vote with the support of allies across the spectrum, including the Mackinac Center for Public Policy and the ACLU of Michigan, but is expected to face a steeper climb in the state Senate.

By continuing to reform civil forfeiture, Michigan would be following in the path of many state legislatures and Congress. Back in 2000, Congress enacted the Civil Asset Forfeiture Reform Act, which, among several other reforms, scrapped a federal bond requirement for non-customs civil forfeiture cases. Last year, Washington, D.C., eliminated its bond requirement, which forced property owners to pay up to $2,500 to challenge a seizure. In fact, only four other states mandate a bond before owners can appeal to a neutral judge to get their seized property back.

Momentum is growing to completely overhaul civil forfeiture in Michigan, and House Bill 4629 is just the latest effort. In 2015, Gov. Rick Snyder signed a seven-bill reform package passed nearly unanimously that instituted new reporting requirements, including documenting whether a property owner was charged or convicted of a crime in relation to a seizure. The reforms also raised the standard of proof needed to forfeit property civilly, from “preponderance of the evidence” (i.e., more likely than not) to “clear and convincing evidence.” This new standard is a higher legal bar than what the federal government and more than 30 states use, meaning Michigan now provides better protections for due process.

Although these are certainly steps in the right direction, more remains to be done. Michiganders can still lose their property even if they have never been convicted in criminal court. Meanwhile, state law provides a perverse incentive to seize property and “police for profit.” After a property has been forfeited, police and prosecutors can keep up to 100% of the proceeds. According to a recent report by the Institute for Justice and data from the Michigan State Police, from 2001 to 2014, Michigan agencies collected more than $258 million in forfeiture proceeds under state law.

Given powerful motivations to seize, it is hardly a surprise that many Michiganders have fallen victim to civil forfeiture. In a report released last year, the Mackinac Center for Public Policy and the ACLU of Michigan documented numerous stories of abuse. Art gala patrons, medical marijuana patients, a Red Cross worker and more have all have seen their property unjustly taken. The reforms in 2015 were important but elected officials should continue along that path and eventually require a criminal conviction before property can be transferred over to the state.

House Bill 4629 is a good start and a welcome fix. Forcing property owners — who may be innocent after all — to pay to challenge a legal proceeding offends fundamental American notions of due process and fair play.

Jarrett Skorup is a policy analyst at the Mackinac Center for Public Policy and the coauthor of a 2015 report on forfeiture in Michigan. Nick Sibilla is a communications associate at the Institute for Justice, a public interest law firm that represents forfeiture victims.