The Michigan legislature is following the lead of several other states and looking at putting at least some modest restrictions on the use of civil asset forfeiture by the police. The proposed legislation wouldn’t go nearly far enough, but it’s at least a step in the right direction.
Last February The Detroit Free Press highlighted various other examples of the cruel, greedy pettiness fostered by civil forfeiture laws, which allow police to take assets allegedly linked to crime without so much as filing charges, let alone obtaining a conviction. “Police seized more than $24 million in assets from Michiganders in 2013,” the paper noted. “In many cases the citizens were never charged with a crime but lost their property anyway.” Now a bipartisan group of state legislators is trying to reform the laws that have turned Michigan cops into robbers.
The bills, which are backed by House Judiciary Committee Chairman Klint Kesto (R-Commerce Township), would require law enforcement agencies to keep track of all forfeitures and report them to the state police, prohibit the forfeiture of vehicles used to purchase small amounts of marijuana, and raise the standard of proof for forfeitures in cases involving drugs or public nuisances. “We must bring culpability and transparency to the system and rein in the ability of police to indiscriminately seize the property of innocent citizens,” Kesto says.
Michigan was one of five states that received a D–, the lowest grade awarded, in a 2010 report on forfeiture abuse from the Institute for Justice. Michigan’s “preponderance of the evidence” standard, which allows the government to complete a forfeiture based on any probability greater than 50 percent that the asset is connected to a crime, was one reason for that low grade. Bills introduced by Rep. Peter Lucido (R-Shelby Township) and Rep. Gary Glenn (R-Midland) would instead require “clear and convincing” evidence, which is more demanding than the current rule but not as strict as “beyond a reasonable doubt,” the standard in criminal cases.
None of the bills addresses another major problem with forfeiture in Michigan: Law enforcement agencies keep 100 percent of the loot, which gives them a strong incentive to target people based on the assets they own instead of the threat they pose to public safety. Testifying before Kesto’s committee on Tuesday, Charmie Gholson, founder of Michigan Moms United, argued that cops’ financial stake in forfeitures helps explain why the arrest rates for consensual crimes involving drugs and prostitution are so much higher than the arrest rates for violent crimes such as rape, robbery, assault, and murder.
In Michigan, Gholson said, the arrest rate (the share of reported incidents that result in an arrest) is 82 percent for prostitution, compared to 44 percent for murder, 39 percent for felonious assault, 21 percent for robbery, and 15 percent for rape. “It’s because when they catch you with a prostitute, they take your car,” she said. “Civil asset forfeiture decreases public safety.”
Again, not far enough. The standard should be very simple: The government cannot seize any assets on the grounds that they were gained through or involved with the commission of a crime unless and until the owner of those assets is convicted of the crime. And even then, they should have to prove beyond a reasonable doubt that the assets had something directly to do with the crime.