Our Editorial: Toughen proposed forfeiture reforms

Innocence until proven guilty should also mean an individual isn’t punished until guilt is established in court. But in Michigan and other states, a suspect can lose property and cash without ever even being charged with a crime.

A package of bills voted unanimously out of committee would establish a higher threshold for civil forfeitures. But it should be toughened to require a conviction before property is taken.

A new report released jointly by the conservative Mackinac Center for Public Policy in Midland and the liberal Michigan ACLU clearly illustrates the problem with forfeitures. That the two often ideologically opposed organizations can find unity on this issue makes the case that reform is needed much stronger.

As the joint report notes, under criminal forfeiture property can’t be kept by government until the owner’s guilt is established beyond a reasonable doubt.

But the standard is much lower for civil forfeitures. State law allows law enforcement to take property merely suspected of attached to an illegal activity, and without the defendant ever having his or her day in court. The requirement is only that there be a “preponderance of evidence” that a crime has been committed. Consequently, many people have been forced to pay huge fines and fees to retrieve their possessions, even though they were never convicted or even charged with a crime.

“When the government can transfer property from citizens to the state without proving wrongdoing, there is clearly something wrong,” said Jarrett Skorup, a policy analyst with the Mackinac Center and co-author of the report. “The foundation of good government is private property rights and the rule of law — civil forfeiture violates both of these.”

A recent study from a national group, Fix Forfeiture, concluded Michigan’s forfeiture laws are among the the most abusive in the country.

Local law enforcement agencies are using civil forfeiture to supplement their budgets and pay for specific programs. That provides a perverse incentive to seize property.

From 2009 to 2013, Michigan law enforcement agencies reported $123.5 million in drug-related forfeiture proceeds. At least another $149 million was taken by Michigan law enforcement agencies from 2001 to 2008, an average of about $18 million per year. That means more than $270 million has been seized from Michigan residents since 2001. Since these figures only include forfeitures related to drug crimes, the total value of property seized is likely far greater.

The pending Michigan bills raise the burden of proof standard for determining when property is seized to “clear and convincing evidence,” and requires police agencies to track and report seizures. That should result in fewer takings.

But they do not require a conviction before a seizure, and that is a major flaw that must be corrected. And they also allow agencies to continue the practice of using seizures to fund their operations.

Still, this package is a good start. Efforts should be made to improve the bills to better protect civil liberties.