Governor signs bill to eliminate 10 percent civil forfeiture fee
Gov. Rick Snyder signed legislation Jan. 3 that bans a cash bond requirement in civil asset forfeiture proceedings. Civil asset forfeiture is a legal proceeding that allows police and prosecutors to keep and sell seized property, in many cases even if the owner is never convicted or even charged with a crime.
The new law builds on 2015 reforms to Michigan’s civil asset forfeiture. Rep. Pete Lucido, R-Shelby Twp, first introduced House Bill 4629, now Public Act 418 of 2016, in May 2015.
The law lifts a requirement that a person whose property is seized as part of civil asset forfeiture pay a cash bond in order to challenge the seizure. Michigan law had allowed law enforcement to keep cash bonds, typically 10 percent of the value of property estimated to be worth $250 to $5,000.
Lucido said he is pleased the bill was signed into law but added that further reforms are needed.
“It’s an absolute great step in the right direction,” said Lucido, who’s also a criminal defense attorney. “But it’s not complete yet.”
In 2015, Snyder signed a package of seven bills into law that requires law enforcement to disclose civil asset forfeitures and do a better job of documenting seizures. The burden of proof for forfeitures was also raised from “preponderance of evidence” to “clear and convincing evidence.”
“The repeal of the bond requirement is great news,” said Kahryn Riley, a criminal justice policy analyst with the Mackinac Center for Public Policy. “It means that citizens will no longer be denied the ability to go to court and dispute private property seizures just because they cannot afford a bond payment. That's a win for due process in Michigan.”
But she added that the repeal is merely one step in the right direction.
“The Michigan Legislature should eliminate the civil asset forfeiture scheme altogether," Riley said. "Our laws still allow law enforcement agencies to profit from seized assets, which can be problematic.”
While Lucido believes forfeiture has its uses, he said a bill is in the works that would require a conviction before property can be taken using forfeiture.
“We need to have civil asset forfeiture because we do not want criminals that are convicted to be profiting from criminal activity,” he said, adding that due process needs to run its course before someone’s property can be taken through forfeiture. “Civil asset forfeiture should not be repealed in its entirety but it should be modified for the best interest of due process.”
Lucido said one solution might be an injunctive order, which would allow an “impartial, detached, third party” judge to determine if someone's property can be “sold, concealed, removed, disposed, or transferred” before a seizure, similar to a search warrant.
The upcoming bill, which Lucido said is nearly ready for consideration, will likely have the injunctive order clause added as an amendment after testimony. Law enforcement in Michigan has forfeited at least $270 million in assets related to drug crimes since 2001, but it’s unclear how much has been taken in total since state law previously did not require law enforcement to fully report information on forfeitures.
Michigan received a grade of D- for its civil asset forfeiture laws in a 2015 study by the Institute for Justice.
Michigan Capitol Confidential previously reported about a lawsuit involving a Shiawassee County couple who had their vintage car — along with thousands of dollars worth of other property — seized and later sold by the Saginaw Township Sheriff Department. The sale came about even though the two were never convicted of a crime and a court of appeals had ordered the property be returned to them.
Documents show the car, a 1965 Chevy Nova, had 56,000 miles added to the odometer during the time it was held by the department. The department sold the car for $1,500.