Michigan’s Civil Asset Forfeiture Laws Are Changing, But at What Cost?

Kelsey Kanthack, Notes Editor (‘20)

Civil asset forfeiture laws allow police to permanently seize any property used in the commission of the crime, intended to be used in the commission of a crime, or that represented the fruits of a crime.[1] If the forfeiture is contested, the government bears the initial burden to prove that any seized property is subject to forfeiture.[2] Upon a showing of sufficient proof by the government, the burden shifts to the party contesting the forfeiture.[3] If the party is unable to rebut the government’s evidence or if the forfeiture is never contested, title to the seized property transfers to the seizing agency, which can then retain the property for its own use or sell it and retain the profit.[4] Proponents of civil asset forfeiture laws assert that they allow police to seize property obtained illegally or connected to criminal activity and use that property or proceeds from its sale to prevent future crime.[5]

Despite their potential benefits, state civil asset forfeiture laws are widely criticized for failing to adequately protect citizens.[6] One major criticism is that many allow for the seizure and forfeiture of property from individuals who are never charged or convicted of a crime.[7] Until recently, Michigan was among those states that allowed civil asset forfeiture in all cases without an underlying criminal charge or conviction.[8] As a result, roughly eleven percent of all civil forfeitures in Michigan in 2017 occurred without an underlying charge, and more than 200 individuals had their property seized and forfeited despite being found innocent of the crime underlying the seizure.[9]

The law in Michigan changed in 2019 when Governor Gretchen Whitmer signed a bill prohibiting civil asset forfeiture in cases involving drug crimes unless those crimes led to a criminal conviction or the property subject to forfeiture is worth more than $50,000.[10] While this change has been met with support from Michigan public policy institutions, law enforcement officials feel differently.[11] The executive director of the Michigan Association of Chiefs of Police expressed concern that criminal conviction is not possible in every case and that the new law may prevent law enforcement from seizing any property despite clear evidence of a drug crime.[12] Further, the Police Chief of Warren, Michigan, and former leader of the Detroit Police Department’s narcotics division expressed concern that the new law did not include certain safeguards, such as keeping seized property in escrow while a case is adjudicated.[13] Without such safeguards, law enforcement may be unable to retrieve property lawfully subject to forfeiture following a conviction.[14]

Today, the consequences of the recent changes to Michigan’s civil asset forfeiture laws are unclear. Ideally, requiring a criminal conviction before the forfeiture of any property worth less than $50,000 will serve to better protect Michigan citizens and their property.[15] Conversely, the fears of Michigan law enforcement officials may prove to be justified if the changes hinder law enforcement from seizing property despite clear evidence of drug-related criminal activity.[16]
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[1] See Meghan Berkery, Rethinking the Future of Civil Asset Forfeiture in Michigan: The Impact of an Evidentiary Standard, 96 U. Det. Mercy L. Rev. 329, 330 (2019) (“Civil asset forfeiture is the process by which law enforcement authorities can permanently seize property that they believe was either used, or could be used, to facilitate the commission of a crime or represents fruits of a crime.”).

[2] See id. at 331 (“If an interested party contests the forfeiture, then an action is filed against the property itself . . . . The government then bears the burden to demonstrate that the property was involved in a violation giving rise to forfeiture . . . .”).

[3] See id. (“Once the government's burden is demonstrated, the burden shifts to the interested party to establish the property's innocence.”).

[4] See id. (explaining that if the forfeiture is not contested or if an interested party fails to meet their burden of proof, title to the property transfers to the seizing agency); id. at 340 (providing that once the seizing agency obtains title, the agency may “retain the seized property for official use or to sell the property and retain the proceeds”).

[5] See id. at 332 (“[L]aw enforcement officials contend that it is a win-win situation as suspected criminals are stripped of their untaxed and illegally earned gains for the direct benefit of the community.”); Jason Snead, Civil Asset Forfeiture: 7 Things You Should Know, The Heritage Foundation (Mar. 26, 2014), https://www.heritage.org/research/reports/2014/03/civil-asset-forfeiture-7-things-you-should-know (“[M]odern civil forfeiture is justified primarily on the grounds that it allows law enforcement to seize the assets and ill-gotten gains of these criminals, using the property and proceeds to fight against other alleged criminals.”).

[6] See Berkery, supra note 1, at 349 (explaining that reform of civil asset forfeiture laws across the United States focuses on better protecting citizens).

[7] See id. at 330 (criticizing state civil asset forfeiture laws for failing to require a conviction or charge).

[8] See David Eggert, Michigan Legislature Limits Asset Forfeiture in Drug Cases, Associated Press (Apr. 25, 2019), https://apnews.com/85e712557a024c60b36bee8157190912 (explaining how civil forfeiture in Michigan functioned prior to the 2019 reform). 

[9] See id. (“In 2017, 736 people had property forfeited to Michigan law enforcement agencies without being charged with a crime — roughly 11% of all civil forfeitures. More than 200 defendants were charged and found innocent, but governments still kept their assets.”).

[10] Mich. Comp. Laws § 333.7523 (2019) (prohibiting the state from permanently seizing property in drug cases unless the owner is convicted or the value of the property exceeds $50,000).

[11] See Mackinac Center Applauds Michigan Civil Asset Forfeiture Reforms, Mackinac Center for Public Policy (May 9, 2019), https://www.mackinac.org/mackinac-center-applauds-michigan-civil-asset-forfeiture-reforms (providing that The Mackinac Center for Public Policy “praised Gov. Gretchen Whitmer and lawmakers”); Beth LeBlanc, Law Enforcement Pushes Back on Michigan Civil Asset Forfeiture Reforms, The Detroit News (Feb. 19, 2019), https://www.detroitnews.com/story/news/local/michigan/2019/02/19/law-enforcement-pushes-back-michigan-civil-asset-forfeiture-reforms/2913449002/ (describing Michigan law enforcement’s criticism of the 2019 reform).

[12] See Robert Stevenson, Here’s What’s Wrong with the Civil Forfeiture Reform the Legislature Passed, Detroit Free Press (Mar. 6, 2019), https://www.freep.com/story/opinion/contributors/2019/03/04/michigan-civil-forfeiture-reform-bill-has-key-flaw/3038936002/ (“If the threshold is $50,000 this just means that drug dealers will transport money in sums of less than $50,000. The scenario I fear is finding several suspects in a house or car, each possessing $49,000 in cash, and where there are no drugs present but everything else indicates drug trafficking – ledger books, scales, narcotics buy funds, and packaging materials. In that scenario, police and prosecutors could make no case to seize anything if Michigan adopts the $50,000 threshold.”).

[13] See Mark Cavitt, Gov. Whitmer Signs Civil Asset Forfeiture Reform Bills Into Law, Local Officials Respond, The Oakland Press (May 9, 2019), https://www.theoaklandpress.com/news/local/gov-whitmer-signs-civil-asset-forfeiture-reform-bills-into-law/article_54aba036-728f-11e9-8439-0785274cc8e6.html ("I would have added safeguards that include putting those seized assets in escrow until the case is adju[d]icated. There is no assurance that we would be able to get that property back following a conviction.").

[14] See id.

[15] See Gretchen Witmer Signs Bills to Limit Asset Forfeiture in Drug Cases, Detroit Free Press (May 9, 2019), https://www.freep.com/story/news/politics/2019/05/09/gretchen-whitmer-signs-bills-limit-asset-forfeiture-drug-cases/1155329001/ (explaining that in signing the laws, Whitmer said “citizens have not been treated fairly nor given adequate legal protections” and “that changes today”).

[16] See Cavitt, supra note 13.