Friday, August 11, 2017

Asset forfeiture foes in Michigan criticize new Justice Department directive

By Michael Carroll - August 11, 2017 at 07:24AM

Property-rights and civil-liberties advocates in Michigan vow to continue efforts to reform the state’s civil asset forfeiture rules in the wake of the U.S. Justice Department’s recent move to expand the controversial practice.

Civil asset forfeiture is a tool used by law enforcement agencies to seize property and cash from citizens before anyone is even convicted of a crime. Michigan in recent years has taken steps to make the practice more transparent and accountable, but critics say abuses involving asset forfeiture continue to burden citizens throughout the state.

U.S. Attorney General Jeff Sessions last month announced a policy directive that lifts previous Justice Department restrictions on “adopting” state and local cases involving asset forfeiture. The new policy makes it easier for Justice Department officials to prosecute local cases at the federal level and allow local police agencies to obtain as much as 80 percent of forfeiture revenues.

“We will continue to encourage civil asset forfeiture whenever appropriate in order to hit organized crime in the wallet,” Sessions said.

But groups such as the American Civil Liberties Union of Michigan say the federal policy change runs counter to a trend among the states to restrict or reform asset forfeiture rules.  Indeed, states such as New Mexico have done away with civil asset forfeiture entirely.

“Michigan civil asset forfeiture laws strip people of their property without due process and are among the worst in the nation,” Kimberly Buddin, policy counsel for the Michigan ACLU, told

The Michigan ACLU will continue to push for state legislation to require a criminal conviction before a citizen’s property can be confiscated, Buddin said. The current system makes it hard for citizens not convicted of any crime to challenge such forfeitures and recover their property, she said.

“This DOJ directive may not affect Michigan as substantially as it will in jurisdictions that have implemented more substantial reform because Michigan’s laws continue to favor law enforcement’s current practices …” Buddin said.

A Michigan State Police report showed that at least 10 percent of citizens involved in asset forfeiture cases in Michigan in 2016 were never charged with a crime, she said.

One state lawmaker who has sponsored several bills aimed at reforming asset forfeiture is Rep. Peter Lucido, R-Shelby Township, who is now spearheading a bill that would require a criminal conviction in order to seize a citizen’s property.

Previous bills that were enacted into law increased the standard of proof needed to confiscate property from a “preponderance of evidence” to “clear and convincing evidence,” and did away with requirements that citizens had to post bonds in order to contest confiscations, Lucido said.

“Michigan is taking baby steps in the right direction to redress wrongs that have occurred for years,” the state lawmaker told

Lucido emphasized that he is not against people having to surrender the fruits of their criminal acts, but only when a conviction has occurred and a neutral and detached court has reviewed the situation.

“One who does wrong should not profit for their wrongdoing,” he said.

Michigan has also enacted legislation that establishes transparency standards for civil asset forfeiture. That law requires police agencies to track where forfeitures are occurring, what was forfeited and whether the property owner was eventually convicted of wrongdoing or charged with a crime, according to Jarrett Skorup, a policy analyst for the Mackinac Center for Public Policy.

The Mackinac Center is working with a bipartisan coalition to pass a bill mandating a conviction before a public agency can take ownership of a citizen’s property, said Skorup, who predicts that the new federal policy will allow state agencies to evade some of the reforms Michigan has enacted.

“The Justice Department’s move means that if federal law enforcement or agencies get involved in a forfeiture, a person can lose their property based on probable cause – meaning that our new standard of ‘preponderance of the evidence’ goes out the window,” he told in an email. “State agencies will be able to get around our new higher standard more easily.”

Other critics of asset forfeiture, however, see the new Michigan reforms as having limited value. About 80 percent of the property being seized does not come under court review, according to Ted Nelson, a former detective sergeant with the Michigan State Police who taught asset forfeiture procedures for a decade.

“That’s more symbolic than it changes anything realistically,” Nelson said.

He also downplayed state legislation that ended the use of bonds to recover forfeited property, indicating that the courts had previously ruled that provision unconstitutional.

“That change was hardly self-initiated,” Nelson said.

Lucido’s latest bill offers one way to correct problems in how property can be confiscated in Michigan, he said. But another option would be to require a court hearing within days or weeks of a law enforcement property seizure to ensure that police had probable cause to act, according to Nelson.

“Right now, property can be seized, and if you file a claim … that could linger on for over a year,” he said, adding that such time lines do not go hand in hand with due process.

When there’s a perception that law enforcement can seize cash and property from citizens at will, that causes communities to lose trust in law enforcement, Nelson said

Rep. Lucido, who was a trial lawyer for 30 years before becoming an elected official, vows to continue working to strengthen citizens’ property rights.

“When a police officer takes property and withholds the rights of citizens, that’s not a justice system,” he said. “That’s an injustice system.”