Posted on 08/30/2016 10:11:46 AM PDT by MichCapCon
It is a basic principle of American law that the government may not deprive citizens of their property without due process. But, according to the Michigan Court of Appeals, at least one Michigan statute lets the state do exactly that.
When Shantrese Kinnon and her husband were arrested on drug charges in Kent County, the police searched her home and seized some property, including a GMC Denali, a Chevrolet El Camino, a motorcycle, a tablet, a laptop, and nearly $400 in cash from her purse.
Even though the couple had not yet been convicted of a crime, a scheme known as civil asset forfeiture allows law enforcement to keep the property with the burden of proof on the Kinnons to get it back. Shantrese tried to challenge the forfeitures of the seized items and get her property back but found she couldn’t afford to. The state requires her to post a bond equal to 10 percent of the value of the property – over $2,000 – before it proceeds.
But Kinnon was only able to come up with a little over $1,000, meaning that she was only able to challenge the forfeiture of the items that she could afford to post bond for. She would automatically lose her ownership rights to the others, even if she were innocent of the charges.
When her case went to trial, Kinnon argued that her rights to due process and equal protection had been violated. The bond requirement, she said, causes poor people to lose their property when they are not financially able to contest the forfeiture. By contrast, she continued, people with better resources can afford to pay the bond and make a case to get their property back.
The Court of Appeals agreed. It held the bond requirement unconstitutional, ruling that “Because of her indigency and inability to pay the required bond, [Kinnon] was excluded ‘from the only forum effectively empowered to settle [her] dispute.’ … Ultimately, Michigan’s civil asset forfeiture scheme operated to deprive [Kinnon] of a significant property interest without according her the opportunity for a hearing, contrary to the requirements of the Due Process Clause.”
State Rep. Peter Lucido, R-Shelby Township, hopes the ruling will generate support for a bill that would remove the bond requirement. The Mackinac Center testified in support of the bill and has repeatedly called for other reforms to civil asset forfeiture, including a condition that a criminal conviction must be secured before property can be seized.
I do not agree with this forfeiture practice without a trial and conviction whatsoever. It is legalized theft by government otherwise.
... failed to call for a complete elimination of the law, thus showing his true colors as a supporter of jack booted thugs.
The Constitution does not say that we get due process after the fact.
Assets should only be forfeited after a trial judge orders so, not sooner.
How many times has the state seized cash and property, then no charges are ever filed?
“”State Rep. Peter Lucido, R-Shelby Township, hopes the ruling will generate support for a bill that would remove the bond requirement. The Mackinac Center testified in support of the bill and has repeatedly called for other reforms to civil asset forfeiture, including a condition that a criminal conviction must be secured before property can be seized.””
Well, isn’t that big of him? Remove the bond requirement but leave the existing unconstitutional law in place? It would only make sense if the whole thing was dumped in the trash bin. How about a criminal conviction FIRST?????
Agreed, and an incentive for Police abuse.
No! Not an El Camino!!!
And this is one of the reasons that we have Black Lives Matter—it isn’t only about police killings, it’s about mass incarceration and deprivation of rights of people without the means to contest. In Georgia they routinely put people in jail who cannot pay their probation fines (private probation companies—for profit). Once they are in jail, they can’t hold a job, and so can’t pay the fine in question or any future fines. So they are kept incarcerated and their families deprived simply due to poverty. It’s a vicious cycle decimating the lower classes. Bear in mind that you can end up on probation because you can’t pay a traffic fine.
Our “justice” system is out of control, and the cops are left to mop up the debris left behind.
How, without violating their rights, can we assure the assets will still be there after a conviction?
My only comment: What took so long?
Maybe you can’t but that’s irrelevant. The Constitution does not say that citizens cannot be deprived of life, librrty or property without due process of the law, unless the government thinks that citizen is a drug dealer. All citizens have the right to not have property seized without due process, even suspected drig dealers. You would think that would be a no-brainer on a site like FR where we are supposed to favor actually following the Constitution.
Me, too.
..It is legalized theft by government otherwise...
Additionally, there are filing time limit deadlines that must be met to begin the process to get back what belongs to you. Many have to get a lawyer involved to push papers, twist the Prosecutors arm to posdibly immediately release the property, and conduct a hearing. More money lost.
The problem appears to be with the “due process” part of the equation. A trial and conviction or acquittal takes forever. The perp is supposed to get a speedy trial, but backlogs are the rule rather than the exception. And the defense delays hoping that witnesses die or disappear.
By the time the multi-millionaire drug kingpin gets to trial all his assets have been transferred or sold off, funds moved to offshore accounts, and he no longer has a pot to pi$$ in, let alone anything to seize!
I don’t care if they are the most guilty people who ever lived.
The 5th and 14th absolutely prohibit loss of life, liberty, or PROPERTY to the State or the Union without DUE PROCESS!
That is irrelevant.
It is not the obligation of the defendant to make our trial system more speedy just so that there will be assets to seize at some later time if the aforementioned is found guilty; that onus lies with the pervasively corrupt, deliberately inefficient government to make due process duly processed.
Let them get their act together, and start doing things the way the Founders intended, or suffer the loss of citizens’ goodies.
About damned time.
This theft by governments has been going on too long.
WTF ever happened to plain reading of the Constitution?
Judges and Governments are just thieves.
To heck with that.
Forfeiture should only occur AFTER the owner(s) are convicted.
I can understand the frustration. However we cannot under any circumstances relax Constitutional principles or else these protections will become meaningless. I value the rights outlined in the Bill of Rights far more than any amount of money or other assets that might be seized from a drug dealer.
Think of it this way. If we allow unconstitutional seizures without due process in drug cases, how long will it be before we start allowing such seizures in other cases? What if the government starts seizing assets of any gun owner SUSPECTED (not convicted) of any crime? How long before cops show up at your door, knowing you are a gun owner, and accusing you of some BS charge that they know you didn’t do just so they can take your property?
I have no sympathy for drug kingpins, but our I would much rather see them keep their assets than see our Constitutional rights evaporate.
I agree in principle, but how about freezing assets, subject to court approval? Living expenses, loan payments, legal fees, etc. would all be approved as a matter of course. But they couldn't sell off or transfer ownership of the mansion, the luxury vehicles, the businesses they use to launder their take, etc.
And there should be a time limit on such a freeze, as well. Get the system moving and convict or acquit.
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