Hency’s compliance with state law explains why a St. Clair County judge last week dismissed the charges against her. But when she asked about getting back her property last Friday, she reported, “The prosecutor came out to me and said, ‘Well, I can still beat you in civil court. I can still take your stuff.'” When she heard that, Hency said, “I was at a loss. I literally just sat there dumbfounded.”
Hency told her story at a meeting of the Michigan House Judiciary Committee, which was considering several bills that would make this sort of legalized larceny more difficult. She was joined by Annette Shattuck, another medical marijuana patient who was raided by the St. Clair County Drug Task Force around the same time.
“After they breached the door at gunpoint with masks, they proceeded to take every belonging in my house,” Shattuck said. The cops’ haul included bicycles, her husband’s tools, a lawn mower, a weed whacker, her children’s Christmas presents, cash (totaling $85) taken from her daughter’s birthday cards, the kids’ car seats and soccer equipment, and vital documents such as driver’s licenses, insurance cards, and birth certificates. “How do you explain to your kids when they come home and everything is gone?” Shattuck asked. She added that her 9-year-old daughter is now afraid of the police and “cried for weeks” because the cops threatened to shoot the family dog during the raid. Although “my husband and I have not been convicted of any crime,” Shattuck said, they cannot get their property back, and their bank accounts remain frozen.
Last February The Detroit Free Press
highlighted various other examples of the cruel, greedy pettiness fostered by civil forfeiture laws, which allow police to take assets allegedly linked to crime without so much as filing charges, let alone obtaining a conviction. “Police seized more than $24 million in assets from Michiganders in 2013,” the paper noted. “In many cases the citizens were never charged with a crime but lost their property anyway.” Now a bipartisan group of state legislators is trying to reform the laws that have turned Michigan cops into robbers.
The bills, which are backed by House Judiciary Committee Chairman Klint Kesto (R-Commerce Township), would require law enforcement agencies to keep track of all forfeitures and report them to the state police, prohibit the forfeiture of vehicles used to purchase small amounts of marijuana, and raise the standard of proof for forfeitures in cases involving drugs or public nuisances. “We must bring culpability and transparency to the system and rein in the ability of police to indiscriminately seize the property of innocent citizens,” Kesto says.
Michigan was one of five states that received a D–, the lowest grade awarded, in a 2010 report on forfeiture abuse from the Institute for Justice. Michigan’s “preponderance of the evidence” standard, which allows the government to complete a forfeiture based on any probability greater than 50 percent that the asset is connected to a crime, was one reason for that low grade. Bills introduced by Rep. Peter Lucido (R-Shelby Township) and Rep. Gary Glenn (R-Midland) would instead require “clear and convincing” evidence, which is more demanding than the current rule but not as strict as “beyond a reasonable doubt,” the standard in criminal cases.
None of the bills addresses another major problem with forfeiture in Michigan: Law enforcement agencies keep 100 percent of the loot, which gives them a strong incentive to target people based on the assets they own instead of the threat they pose to public safety. Testifying before Kesto’s committee on Tuesday, Charmie Gholson, founder of Michigan Moms United, argued that cops’ financial stake in forfeitures helps explain why the arrest rates for consensual crimes involving drugs and prostitution are so much higher than the arrest rates for violent crimes such as rape, robbery, assault, and murder.
In Michigan, Gholson said, the arrest rate (the share of reported incidents that result in an arrest) is 82 percent for prostitution, compared to 44 percent for murder, 39 percent for felonious assault, 21 percent for robbery, and 15 percent for rape. “It’s because when they catch you with a prostitute, they take your car,” she said. “Civil asset forfeiture decreases public safety.”
Gholson thinks money from forfeitures should go into the general fund, which would eliminate such perverse incentives. She also argues that forfeiture should require a conviction based on proof beyond a reasonable doubt, which would effectively abolish the practice of civil (as opposed to criminal) forfeiture. The Institute for Justice, which has been fighting forfeiture abuse for years, agrees.
Both of those reforms were recently adopted by New Mexico, which got a D+ in the 2010 Institute for Justice report. The New Mexico law also bars police and prosecutors from evading state limits on forfeiture by pursuing seizures under federal law through the Justice Department’s Equitable Sharing Program. Last month legislators in Montana, which like New Mexico got a D+ in 2010, likewise voted to require a conviction prior to forfeiture. But police and prosecutors in Montana will continue to keep all the proceeds from forfeitures, and they are still free to engage in joint forfeitures with the feds, which are subject to a lower evidentiary standard.
Compared to the reforms in New Mexico and Montana, the changes proposed in Michigan are pretty modest. But forfeiture critics hope the new comprehensive reporting requirement will set the stage for more ambitious reform by showing how the profit motive warps law enforcement priorities. “You need more details about how seizures are happening,” Lee McGrath, legislative counsel at the Institute for Justice, told the Free Press. He said such data will expose the myth that “these forfeitures target big international criminal syndicates.” McGrath called the bills “a solid first step toward the ultimate goal of ending civil forfeiture.”