Posted on 06/01/2015 7:30:03 AM PDT by MichCapCon
On Wednesday, the Mackinac Center for Public Policy hosted a forum at the Capitol to discuss the state's law on civil asset forfeiture and some of the glaring problems associated with it.
Lee McGrath, legislative counsel for the Institute for Justice; Dan Korobkin, deputy legal director of the American Civil Liberties Union of Michigan; and Rep. Jeff Irwin (D-Ann Arbor) comprised the panel. Despite hailing from dramatically different political backgrounds, all three agreed on the problem facing Michigan citizens and the preferred method to solve it.
McGrath opened the program by declaring, “To describe forfeiture is to condemn it.” Civil asset forfeiture law operates in a radically different way than criminal law, with far lower procedural safeguards. When authorities stop a driver or raid a person's house, the individual enters the criminal justice system, with the right to a public defender and the presumption of innocence until proven guilty.
In contrast, when a person's property is seized, it is "tried" under the far less rigorous safeguards of the civil justice system. A person who wishes to redeem his or her property through the court system labors under a burden to prove a negative — that the car, cash, or other seized object taken by authorities was not used to commit a crime, nor was it the proceeds of a crime.
In some cases an owner must pay a fee (called a bond) even to get a hearing before a judge. In addition, an indigent owner has no right to a public defender. Korobkin argued that this unfairly “punishes [defendants] for being poor."
The outcome of the criminal case — assuming charges are even filed — has no impact on the disposition of the individual's property. All three panelists cited instances of abuse, including citizens losing cars or large amounts of money without ever being charged with a crime.
One explanation why prosecutors and law enforcement continue to seize property under this law is the strong incentive it provides them: The proceeds from any seized property supplement local police budgets.
To demonstrate this, McGrath showed a video of the police chief of Columbia, Missouri, admitting that police regard anything gotten through civil asset forfeiture law as “pennies from heaven” and comparing confiscated items to “toys” for the department. The chief admitted that his department usually bases the decision to seize property on whether the item is “something that would be nice to have, that we can’t get in the budget for instance.”
To correct these abuses, Irwin and his colleagues are pressing for passage of a bipartisan package of reform bills. The Ann Arbor legislator praised the “confluence of philosophies” at the event, saying the fact that the speakers had differing backgrounds proved how important this issue was.
Irwin believes that the “straightest, most complete solution” is quite simple — require conviction of a crime for any forfeiture of property. This would link the two systems of criminal and civil justice and halt the theft of innocent citizens’ property. McGrath told the audience that New Mexico recently enacted this reform after abuses were publicly exposed.
Another piece to the solution is raising the burden of proof for forfeiture. Currently, the bar is set at the lowest standard, known as "preponderance of evidence." Irwin and the other panelists say this should be raised, at a minimum, to a more rigorous standard of "clear and convincing" evidence. Under the New Mexico reform and a bill sponsored by Irwin, the standard is the most rigorous level of all criminal prosecutions, "beyond a reasonable doubt."
Korobokin decried the system as having “no legitimate control and oversight." Irwin agreed that the requirements were lax, pointing out that there is really no enforcement behind the law and the reports that are filed aren’t that helpful. The House package of bills would require more detailed reports, which Irwin likened to requiring police to wear body cameras.
Irwin expressed confidence that the legislation would pass the House and advised people concerned about this issue to call their senators and tell them to support these reforms. He called this system "un-American" and told citizens to let their state lawmakers know that “we need some reform in this area.”
The reform package includes House bills 4504, 4505, 4506, 4507, 4508, 4499.
including citizens losing cars or large amounts of money without ever being charged with a crime.
They are the criminal justice system. If nobody is charged with or prosecuted for a crime, the stuff can’t be taken, legally. It is robbery.
In contrast, when a person’s property is seized, it is “tried” under the far less rigorous safeguards of the civil justice system.
But in civil forfeiture cases you don’t ever see a courtroom. And since it is based on the allegation that the commitment of a crime was involved (i.e. someone can charge someone with violating an actual law on the books and successfully them for said violation), if they can’t get a conviction, they can’t keep the stuff.
It’s absurd that they can just take your stuff and say, “we think you did something illegal with or for this stuff.”
At least, outside the old soviet union or red china (or Sudan) it’s absurd.
successfully them = successfully prosecute them
Yet another good reform idea is to remove the conflict of interest that gives rise to the perverse incentive. Assets seized by the police department should never revert to that police depart, or to any police department for that matter.
Yet another good reform idea is to remove the conflict of interest that gives rise to the perverse incentive. Assets seized by the police department should never revert to that police depart, or to any police department for that matter.
The whole thing is repugnant.
I remember when I first heard about this decades ago. I naturally assumed, being a US citizen that understands the constitution, that the forfeitures were part of a criminal prosecution and everything was returned if you were found not guilty. When I was told how it really works I thought i was hearing wrong. When I found out I was NOT hearing wrong, I lost all respect for our government. And what I’ve learned over and over again at both federal, state and local levels have confirmed that was a wise conclusion.
The Institute for Justice has been fighting his for a while.
Someone commits a crime while test driving your car, and you don’t get it back.
The boyfriend borrows the car and drives drunk, the girlfriend can’t get it back.
Having thousands in cash is suspicion enough to seize it, if you have it when pulled over, though 90%+ are never charged with a crime.
The IRS is doing this, too, seizing accounts because you deposit less than 10K repeatedly, though many businesses like grocers and snack vendors do this because if they were robbed of the cash, anything over 10K isn’t covered by insurance.
I would like to see Cruz or Walker campaign against civil asset forfeiture, both because it is the right thing to do and because it would help in appealing to decent liberals who respect individual right (and, yes, there are some of those remaining) while also appealing to conservatives who respect the rule of law.
I approve the seizure of anything purchased with ill gotten gains. The mansion a drug dealer pays for with drug sales should be seized. All else is patently unconstitutional. A drunk driver deserves jail time or fines, not to lose his Ferrari. A farmer who grows pot deserves jail time or fines, not to lose his 500 acres of prime farm land.
This is tyranny pure and simple. It is outright government theft but I have no clue how to stop it.
Yes, great idea. Remove the incentive.
Rand Paul introduces bill to reform civil asset forfeiture
http://www.freerepublic.com/focus/f-news/3253538/posts
that would be a welcome addition
Rand Paul is a genuine individual. Most of the time, he’s the best person we have in Congress, as he is on civil asset forfeiture. Occasionally, he’s his nutty father’s son. If he’s the republican nominee, I’ll probably vote for him but feel uneasy (unlike Jeb Bush, Chris Christie, and Marco Rubio, who will never get my vote).
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