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With Gov. Snyder’s Signature, Forfeiture Reform Comes to the Wolverine State

An important first step in providing Michigan citizens increased property protections was accomplished yesterday afternoon, as Gov. Rick Snyder signed a package of civil asset forfeiture reform bills into law.

Asset forfeiture is a tool of law enforcement whereby the proceeds of criminal activity can be seized to combat future criminal activity. While this practice was intended to divest criminals of the fruits of their illegalities, unfortunately, innocent citizens have become ensnared in the practice as well, facing the loss of property without being convicted of a crime, let alone being charged with one.

The package of bills provide for two main provisions. First, at the beginning of February next year, all reporting agencies in the state are required to submit information detailing seizure/forfeiture activities to the Department of State Police (DPS) as required under the newly enacted Uniform Forfeiture Reporting Act (UFRA). This report must contain information related to the:

  • number of forfeiture proceedings instituted, concluded, and pending in the appropriate circuit court;
  • number of forfeitures effectuated by the reporting agency without subsequent court proceedings
  • number of seizures/forfeitures subject to consent judgements or settlements
  • inventory of property seized by a reporting agency, including residential, commercial, industrial or agricultural real property, money, weapons, vehicles or other property of value
  • total net proceeds of all property forfeited

UFRA also provides that any records reported by a law enforcement agency are subject to audit by the DPS, and records shall be made available to the public on the department’s website.

As it relates to forfeiture activities nationwide, one of the primary difficulties that interested parties for reform have had is in simply delineating the pervasiveness of the practice. These “sunlight” bills, while not necessarily changing any procedural aspect of forfeiture, does allow the legislature and the public to grasp the true extent of forfeiture in the state, and so begin to hold law enforcement agencies accountable.

Second, two of the bills (HB 4499 and 4505) also increase the evidentiary standard of proof that the State must meet before successfully completing a forfeiture proceeding related to a violation of controlled substance statutes, or for public nuisance abatement actions—from a simple preponderance of evidence to clear and convincing evidence.

Another bill that would have exempted personal conveyances used to purchase an ounce or less of marijuana from forfeiture failed to pass the Senate Judiciary Committee.

In totality, this package of bills constitutes a major step forward for the Wolverine State, though much work remains. Legislative efforts in the future should focus on adopting the New Mexico model for civil forfeiture reform—namely, requiring a conviction in an underlying criminal proceeding before property is forfeited, prohibiting use of the federal equitable sharing program, and requiring proceeds of forfeiture be deposited into the state’s general fund.

In this way, innocent Michigan property owners would have the greatest possible protection from constitutionally dubious takings.

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