Kerr: End policing for profit in Michigan

John Kerr

Do laws that encourage police to seize cash, homes and other valuables from people who are never formally charged with criminal wrongdoing comport with American sensibilities of justice and fairness?

That question confronts lawmakers across the country as the controversial practice known as civil forfeiture comes under increasing scrutiny in Michigan and in many other states.

Under civil forfeiture statutes — which date to 17th-century British maritime law and proliferated in the United States during the 1980s as a tool in the drug war — law enforcement officials may confiscate and keep property on a mere suspicion of wrongdoing. No warrant is necessary. The owner need never be convicted of a crime, or even charged. Instead, the property itself is deemed guilty and the owner who contests a seizure must prove himself innocent.

In addition, the laws in many states allow the police to supplement their budgets with the proceeds raised by the property or cash they seize. Michigan is among the worst states in this regard, as law enforcement agencies in the Wolverine State receive all the income generated by civil forfeiture. This creates a clear incentive for abuse.

According to a Michigan State Police report, Michigan law enforcement personnel in 2013 seized more than $24 million in assets from state residents, many of whom were never charged with any crime. In its comprehensive 2010 report Policing for Profit, the Institute for Justice, a public-interest law firm in Arlington, Va., gave Michigan’s forfeiture laws a grade of D- and calculated that state police agencies generated $149 million in forfeiture revenue from 2001 to 2008.

Not all of this loot came from hardened criminals or drug lords. Just ask Thomas Williams, a 72-year-old medical marijuana patient living in St. Joseph County.

Suspecting that Williams was growing more marijuana than allowed under the law, police raided his home in November 2013 “wearing black masks, camouflage and holding guns at their side,” a Detroit newspaper reported. After finding a few unplanted seedlings that they maintained put Williams over his 12-plant limit, police seized his Dodge SUV, $11,000 in cash, a shotgun and his cell phone. They have also filed papers to take the house.

More than 18 months later, Williams, who was never charged with a crime, remains tied up in court trying to recover his property and keep his home.

In April, a bipartisan coalition of state lawmakers introduced a series of bills in the House designed to protect Michigan residents from improper seizures and to inject accountability and transparency into the forfeiture process.

The bill would increase the standard of proof that prosecutors must meet to justify property being forfeited, narrow the scope of forfeiture laws to exclude certain low-level offenses, and strengthen reporting requirements on law enforcement agencies regarding their forfeiture activity.

John Kerr is a communications fellow with the Institute for Justice.