» Subscribe Today!
The Power of Information
The Ledger - EST. 1978 - Nashville Edition
Skip Navigation LinksHome > Article
VOL. 39 | NO. 49 | Friday, December 4, 2015

Michigan provides model for curbing civil forfeiture

By Sam Stockard

Print | Front Page | Email this story

Michigan Rep. Jeff Irwin isn’t seeing the same success as his New Mexico peers in turning back civil asset forfeiture laws. But he is helping lead the fight in the Wolverine State.

Irwin, a Democrat from Ann Arbor, introduced legislation several years ago requiring a conviction in order to seize people’s assets, saying such a principle aligns with the premise of innocent until proven guilty beyond a reasonable doubt.

The bill hasn’t passed – yet – but in the process of debate, a couple of his Republican colleagues decided they needed to take steps to curb “abuses” of civil asset forfeiture.

Legislators there put together an eight-bill package, seven of which the governor signed this year. Only Irwin’s bill is languishing, one designed to prohibit forfeitures for arrests connected to small amounts of marijuana.

One of the main things the reform package did is require police agencies to provide an annual report on assets they seized.

“It also requires them to report on what was the case that originated the forfeiture, so we can get to the bottom of how this tool was really used.

“Because while I’ve been talking to my colleagues about it, I’ve been pointing out all of the cases in which law enforcement was really abusing the rights of citizens and going too far and taking people’s assets when they couldn’t prove the case,” Irwin says.

“Or, even more important, this is the crux of the disagreement between folks like myself and some of the law enforcement folks is that I was alleging that asset forfeiture was really bending the law enforcement priorities.

“And rather than going after, say, a crystal meth lab that is going to be a cost to the people and probably is going to have no cash in hand, instead they were going after medical marijuana patients and dispensaries who are typically people who have more assets to take, more cars, more flat-screen TVs, more auction-able tools and what not.

“Hopefully, when this reporting comes out we’ll get an idea of which of those stories is more true: Are they taking down Pablo Escobar and using this tool to go after drug lords who are successful at keeping distance from the actual possession charges, as police are saying?

“Or are they really using this tool against people accused of petty possession or medical marijuana patients.”

The other major change increases the burden of proof on prosecutors when asset forfeiture cases go to court, requiring clear and convincing evidence.

Most asset forfeitures were done under administrative procedures without court case. If larger amounts were taken or in the rare instance a citizen challenged the forfeiture, those cases went to court.

Irwin’s bill, which was eventually scuttled by the Senate, would have simply stipulated that if someone possesses an ounce or less of marijuana it is presumed to be simple possession and, therefore, not subject to forfeiture unless the prosecutor could rebut that assumption with actual evidence the person is some sort of dealer. (Michigan has medical marijuana laws.)

He describes situations in which law enforcement officers were posting as undercover dealers on corners. When people bought small amounts of drugs, such as marijuana, people would arrest them and then try to seize their vehicles and require a $900 fee, using the argument they used them in the commission of a crime.

“And, so they have this very large shakedown operation that is run through this particular method,” Irwin explains.

As the next session approaches, Irwin says he hopes to revive the conversation on his effort to require convictions in order to seize people’s assets.

“But there’s another idea I think really had more political legs and it would be incredibly important if we could do it, and that would be to eliminate the bonding requirement that is put on individuals when they seek to challenge the forfeiture,” he adds.

Currently, police can seize $20,000 in cash and items and, in order to go through due process, the person must post a bond of 10 percent of that value.

People who’ve just lost most of their property have no means for trying to get it back, he says.

Irwin says he is aware of situations in which law enforcement officers search for cash seizures to pay their own salaries.

“That’s at the crux of this whole issue, the insidious incentive that you’ve built into the system when you tell officers if you make more busts that’s going to roll into the bottom line and that’s going to make it easier for you to get bonuses and promotions and raises,” he notes.

“And the way we do it here in Michigan, when a drug task force seizes these dollars, they go right back into the budget of that drug task force. That incentive that I think is improper is really at the heart of why this is problematic.”

Reforming civil asset forfeiture is a bipartisan effort in Michigan, catching the attention of conservatives and liberal groups.

“I’m a liberal Democrat working in a very conservative Michigan Legislature, and this is one of those issues where I think some of the more conservative members of the Legislature who really felt that following the Constitution is crucial and that our oaths need to be taken seriously, they joined hands with those of us on the left who feel the same way, and we got something done. …

“I think it is important. I think there are some people here in America who are being punished who don’t deserve it, and hopefully, we can get some more eyes on this process.”

Follow us on Facebook, Twitter & RSS:
Sign-Up For Our FREE email edition
Get the news first with our free weekly email
TNLedger.com Knoxville Editon