Both parties want to rein in civil forfeiture

Nick Sibilla

With Democrats and Republicans increasingly at loggerheads, it’s refreshing to find one issue that both parties support: the need to protect Americans from abusive police seizures.

Under “civil forfeiture” laws, police can seize — and keep — cash and cars, even if the owner was never convicted of, much less charged with, a crime.

Now the party platforms for both the national Republican and Democratic parties have called for sweeping reforms to civil forfeiture. As the Republican Party explains in its platform, “civil asset forfeiture was originally intended as a way to cripple organized crime.” But today, “it has become a tool for unscrupulous law enforcement officials, acting without due process, to profit by destroying the livelihood of innocent individuals, many of whom never recover the lawful assets taken from them.”

Similarly, the Democratic Party platform calls to “to protect people and remove perverse incentives for law enforcement to ‘police for a profit.’ ” This profit incentive behind civil forfeiture is why it’s so dangerous to American property rights — and so lucrative for law enforcement.

Between 2001 and 2013, Michigan law enforcement agencies collected more than $244 million in proceeds from forfeitures under state law. Incredibly, Michigan provides a perverse incentive to pursue forfeiture cases. Once a property has been forfeited, agencies can retain up to 100 percent of the proceeds. No wonder Michigan received a D- for its civil forfeiture laws, according to a recent report by the Institute for Justice.

To curb abuses, last year, Gov. Rick Snyder signed an important seven-bill reform package that was backed by both the American Civil Liberties Union of Michigan and the Mackinac Center for Public Policy.

One reform signed by the governor raises the standard of proof to forfeit property to “clear and convincing evidence.” This more vigorous standard will better protect property owners in court. Another part of the bill package provides greater transparency for forfeiture activity, which will require agencies to disclose if an owner was criminally charged or convicted in relation to a property seizure.

The bills are a welcome start for reform, but far more needs to be done. First, Michigan should first require a criminal conviction as a prerequisite to forfeit someone’s property. No one acquitted in criminal court should lose their property in civil court. Today, 11 states, including most recently Minnesota, Montana, Nebraska, Nevada and New Hampshire, have enacted this key safeguard for property rights.

Instead of allowing agencies to pad their budgets with forfeiture revenue, lawmakers should re-direct proceeds to either the general fund or a specific, neutral fund, like education. That type of reform is already on the books in seven states, including Indiana and Wisconsin.

In Washington, forfeiture reform is also on the horizon. Lawmakers may soon vote on the Due Process Act, which would fix many glaring defects in federal forfeiture law. The legislation would provide owners with a right to an attorney, raise the standard of proof to forfeit property and require an annual audit to bolster transparency and accountability. The bill would also restore the presumption of innocence for federal civil forfeiture cases. In May, the bill was reported out of the House Judiciary Committee by a voice vote, reflecting the bipartisan leadership and consensus around civil-forfeiture reform.

This new bipartisan consensus should boost forfeiture reform efforts both in Michigan and nationwide.

Nick Sibilla is a writer at the Institute for Justice.