Bipartisan bills: New year, new chance for Michigan asset forfeiture reform

Update: Michigan civil asset forfeiture bills headed to Gov. Gretchen Whitmer

If police in Michigan believe you’re involved with a crime, they can take your cash, guns, cars or home if they can connect it to the alleged crime — even if you’re never actually charged or convicted. That property winds up in civil court and you have to fight to get it back, sometimes racking up legal fees that can be more expensive than the property itself.

However, those laws may soon change.

Under bipartisan bills that supporters say are likely to become law, the process known as civil asset forfeiture would become significantly restricted. A Senate bill, sponsored by Sen. Peter Lucido, R-Shelby Township, passed out of Senate committee Thursday morning with unanimous, bipartisan support. A similar bill package is moving through the House.

Police say civil asset forfeiture is an important tool to discourage crime, bust drug dealers and buoy cash-strapped police departments. Reform advocates say it’s an infringement on constitutional rights that’s ripe for abuse by law enforcement agencies that stand to financially gain from property seizures.

While changing the system has long been seen as an opportunity for bipartisan compromise, change has been slow. Legislation intended to rein in the practice passed in 2015 and 2017, but stakeholders say now is the political moment for what critics say is the most significant reform: banning police from keeping property when there is no plea or conviction.

“After pruning the tree, I decided to take the trunk down,” Lucido said. “I think I got a good chance of making this happen.”

All signs indicate he’s right, with state House leaders also speaking strongly about the need for reform.

Republican Speaker of the House Lee Chatfield stood with Democratic Attorney General Dana Nessel on the first day of the new session, staking out forfeiture reform as a top priority. And Sen. Lucido, the legislature’s biggest forfeiture reform advocate, has replaced term-limited Sen. Rick Jones — who worked more than 30 years in law enforcement and said requiring conviction was a “bad move” — at the helm of the Senate Judiciary Committee.

In addition to Lucido’s Senate bill, there is a bipartisan House bill sponsored by Reps. Jason Wentworth, R-Clare and David LaGrand, D-Grand Rapids.

The bills would:

• Require a criminal conviction or a plea agreement for police to take ownership of someone’s property.
• Require a prosecuting attorney or the Attorney General to review and approve forfeiture if a person gives up ownership of property.
• Allow people who object to police taking their property to file an official claim requesting it back. The claim must be notarized by someone who has examined it and “believes it to be … true and complete.”
• Exempt property that is illegal or “dangerous to the health or safety of the public,” from new forfeiture restrictions.
• Exempt property worth more than $50,000 from new forfeiture restrictions.

What is civil asset forfeiture?

Under current law, police can take criminal suspects’ property if they have evidence it has been involved in a crime, which advocates say is helpful as evidence in court and as a way to cripple drug trafficking organizations by stripping them of assets. They can then use that property how they like — destroy it, donate it, or sell it and add the money to the department’s budget.

As suspects enter the criminal system to determine whether they’re guilty, the property enters the civil system. In essence, the property itself becomes a suspect, leaving owners to prove in court it wasn’t involved in a crime before getting it back, even if the owner wasn’t charged or convicted of the criminal offense that led to the seizure. That can mean hiring legal help or navigating a labyrinthian civil court system. Critics of civil asset forfeiture say this puts a high burden on innocent people, especially those who are low-income, to get their property back.

According to a report from the Michigan State Police, law enforcement agencies throughout the state collected more than $13.1 million in cash and property in 2017, the last year with available data. The average amount of cash seized is around $500, and the average value of vehicles seized is around $1,000, according to data analyzed by Jarrett Skorup of the Mackinac Center for Public Policy, a free-market think tank which collaborates with the Michigan ACLU to advocate against civil asset forfeiture in the state.

“People make a financial choice; I’m not going to go hire an attorney,” Skorup said. “So they’ll either pay a fine to get the asset back, or they’ll just relinquish it.”

How we got here

Reform advocates say there’s been interest in changing state civil asset forfeiture laws since the early 2010s, but that the first significant reform came in 2015 when then-Gov. Rick Snyder signed a bill package that raised the burden of proof to keep property and required law enforcement agencies to file annual reports about their forfeitures. In 2017, lawmakers eliminated the requirement that people pay a bond to request their property back.

A bill similar to the current legislation passed in the House last session, but stalled in Senate committee. Jones, then the Judiciary Committee chair, said he told Lucido “your bill needs a lot of work” before he would take it up. Jones told Bridge he preferred a bill package by then-Rep. Jim Runestad, R-White Lake, which required prosecutors to review all property confiscations as a check on police abuses.

“People should not have their property taken inappropriately, forfeited inappropriately,” Jones said. “However, simply saying that if you don’t have a conviction property can never be taken is a bad move and is going to end up helping drug dealers.”

Some reformers say the slow walk to change has been due to misunderstanding: Law enforcement agencies often don’t realize the legislation would only affect their ability to take final ownership of property; it would not impact their ability to (at least temporarily) seize it as part of a criminal investigation, Skorup said.

Lucido, an attorney, says there’s one primary reason law enforcement has opposed his legislation:

“It’s simple. Police departments get to keep the money. If I get to keep the money I don’t want anybody intruding on my job to get the money.”

Lucido said 736 people whose property was forfeited in 2017 were never charged with a crime. If his bill becomes law, law enforcement agencies across the state are likely to lose “several million dollars” in revenue, according to the nonpartisan Senate Fiscal Agency’s analysis of the bill.

Law enforcement groups say civil asset forfeiture is an important tool to combating drug-related crimes, which is becoming even more necessary as the opioid crisis escalates.

“From our view, forfeiture is one of the most effective tools to take the resources away from drug trafficking organizations. This is going to put an impediment in that process,” said 1st Lt. Tim Fitzgerald of the Michigan State Police. “But [the proposed bills are] not all bad, not as bad I’d say it was at introduction last session.”

The State Police appreciate that Lucido added the allowance for people to voluntarily give up property to law enforcement and the requirement that prosecutors review agreements to forfeit property, Fitzgerald said.

“If we lose any kind of financial resources we have to figure out where they’re going to come from,” Fitzgerald said. If the bill becomes law, “we would be looking to the legislature to help us in that regard so we don’t have to cut any other programs.”

The Michigan State Police have not yet formally said where they stand on the bills, but Fitzgerald said they are likely to be neutral. One other law enforcement agency, the Michigan Association of Chiefs of Police, has formally said it opposes the legislation.

The political winds have changed

As Michigan enters its first year of divided government after nearly a decade and licks its wounds from a politically turbulent lame-duck session in December, Republican legislative leadership and new Democratic Gov. Gretchen Whitmer are preaching compromise and civility.

Most Lansing politicos are bracing for when the kumbayas inevitably stop. But several lawmakers interviewed by Bridge say changes to the state’s civil asset forfeiture law will be one of the exceptions, punctuated by the surprising joint appearance of conservative Chatfield and liberal Nessel early in the year.

Democratic Rep. David LaGrand, one of the sponsors of the House bills, said civil asset forfeiture is a priority for both parties.  

“We are intending...to really start the session off with a culture of cooperation and collaboration and information transparency and deliberation,” he said. “Honestly criminal justice reform in general is probably the most hopeful space for a lot of good bipartisan work in the coming session.”

Whitmer spokeswoman Tiffany Brown told Bridge via text message the governor is “reviewing the legislation with the relevant parties” but did not say whether she would support the bills.

During Thursday’s committee hearing, Sen. Jeff Irwin, D-Ann Arbor, raised concerns about whether lawfully owned medical marijuana would be subject to forfeiture because marijuana remains illegal at the federal level. Waterford Police Chief Scott Underwood, who spoke before the committee, said there’s no reason to seize marijuana in the first place if it’s legally possessed.

Charlie Owens, state director of the Michigan chapter of the National Federation of Independent Businesses, noted during the hearing the remarkable collaboration between traditionally conservative-aligned groups such as his group and the Mackinac Center and liberally-aligned groups such as the ACLU on the issue, indicating civil forfeiture is in need of reform.

Lucido agreed, adding that he’s observed a more bipartisan approach across the legislature this term: “I’ve never seen both parties at the table enjoying a meal together.”