ASKED & ANSWERED: Kimberly Buddin on proposed civil forfeiture legislation

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By Steve Thorpe
Legal News

The Michigan Legislature is currently considering House Bill 4158 that would require a criminal conviction before the government can take ownership of any assets worth less than $50,000. The American Civil Liberties Union of Michigan and the Mackinac Center for Public Policy support the proposed legislation requiring that a person must first be convicted of a crime before having their property forfeited. A recent report from state law enforcement agencies shows that more than 700 innocent people had property seized by the government. Kimberly S. Buddin is Policy Counsel of the ACLU of Michigan. She is responsible for conducting research and outreach to assist in developing and implementing litigation and advocacy strategies and to proactively advance the ACLU’s legislative agenda.

Thorpe: Tell us about the current legislative initiatives.

Buddin: Although the United States Constitution sets forth that a state may not “deprive any person of life, liberty, or property, without due process of law,”‘ Michigan’s civil asset forfeiture laws permit law enforcement the power to take ownership over someone else’s property, which they believe is linked to illegal activity even if that person is not convicted of, or even charged with a crime. The proposed legislation to require a criminal conviction, absent several other circumstances, for assets under $50,000 is a step towards addressing that procedural and fundamental flaw in our current system.

Thorpe: What types of alleged wrongdoing most frequently lead to the forfeitures?

Buddin: According to Michigan State Police’s most recent civil asset forfeiture report, a vast majority of the forfeitures were related to alleged activity involving drugs.

Thorpe: Is there any recourse for citizens who have had their property wrongly seized?

Buddin: I want to be clear that the legislation addresses forfeitures, not seizures, a process that has an entirely different set of rules and protections. There are evidentiary and procedural methods of address wrongfully seized property—this legislation does not concern those. As to forfeitures, currently if forfeiture proceedings are instituted against an individual’s property, that individual may challenge the proceeding in civil court. This, of course, requires some understanding of the legal system and the ability and resources to go through these legal proceedings.

Thorpe: You’ve been quoted saying that the current system “is ripe for abuse.”‘ Can you give us some examples?

Buddin: If simply taking people’s property without even charging them is not abuse enough, there is no limit to the items that can be seized and then forfeited under our statute. We have heard reports of law enforcement taking children’s piggy banks, vacuum cleaners, comic book collections, etc.  Another concern involves roadside negotiations where law enforcement promises not to arrest an individual if they agree to hand over their cash and/or other property. This certainly contravenes people’s civil liberties as well as the original intended purpose of civil forfeiture laws.

Thorpe: In October 2015, the Michigan Legislature passed a package of laws that raised the standard of evidence before the state can take possession of property. That law followed bills that raised the standard of evidence before assets could be forfeited and established broad transparency requirements. This type of bill tends to have bipartisan support. Why has progress on the issue been so incremental and slow?

Buddin: There is a mistaken belief that civil asset forfeiture is a critical way to combat massive drug trafficking and that dismantling the system will allow drug lords to run their enterprises freely. However, what we’ve seen is that in most cases where drug trafficking was suspected or alleged, there were additional factors outside of simply a sum of cash that aided prosecutors in obtaining a conviction. The reality is that only 10% of the forfeitures account for 90% of the money. A majority of the forfeitures are less than $3,000. For many this may be both life changing and necessary money as well as money they are unable to afford to challenge to get back. For a few thousand dollars, the procedural hurdles and time commitment it takes is not worth it and many people give up.

Additionally, civil forfeiture is a practice that our society has become very accustomed to and that law enforcement has relied on for a long time. Reports show that the practice helps fund budgetary needs like equipment, overtime, personnel, etc., so reforming this practice has significant budgetary implications as well.

Thorpe: Currently 15 other states require a criminal conviction before forfeiting property. In states like New Mexico and Nebraska, which have eliminated civil forfeiture, a court decides if a person is guilty of a crime and then determines what assets were gained from crime before ultimately forfeiting property to the government. Will this eventually happen in Michigan?

Buddin: I certainly hope so! If Michigan wants to truly ensure due process when it comes to forfeiture of property, it needs to follow the lead of states like New Mexico and Nebraska. The ACLU recognizes the importance of these incremental steps incorporating greater due process protections, and we believe that transparency around how civil forfeiture is currently being used and misused will help push our State in the right direction of eliminating civil forfeiture all together.

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