Developments in Civil Forfeiture Law

On August 14, the Traverse City Record Eagle reported that a local couple who operated medical marijuana dispensaries in Kalkaska, Grand Traverse and Wexford Counties could lose their home, valued at more than $260,000, in a civil suit filed by the State of Michigan.

“Civil forfeiture” is a controversial legal process by which law enforcement may seize and take ownership of assets, on the basis that the assets were used in conjunction with crime or illegal activity. The process does not require that the owner(s) be charged with or convicted of wrongdoing; the court case is “against the asset.” Although civil court processes generally involve a dispute between two private citizens, civil forfeiture involves a dispute between law enforcement and property, such as a pile of cash, a house, or a boat. To get back the seized property, owners must prove it was not involved in criminal activity.

Proponents of the process argue that it is an efficient method, because it allows law enforcement agencies to use these seized proceeds to further battle illegal activity, by directly converting the value obtained from illegal items to law enforcement purposes.

Critics of the policy argue that innocent owners entangled in a legal process where that their constitutional property rights are violated, and that there are precious few due process rules to protect them. In effect, they are presumed guilty, rather than innocent. They further argue that the financial incentives lead to corruption and law enforcement misbehavior.

In January 2017, the Justice Department, in recognition of abuses in the system, placed limitations upon Federal agencies’ adoption of assets seized by state and local law enforcement agencies. On July 29, 2017, Attorney General Sessions effectively reversed those limitations.

According to the Washington Post of July 19, 2017, in the 12 months before Attorney General Eric Holder shut down the program in 2015, state and local authorities took in $65 million that they shared with federal agencies, and 13 states have passed laws requiring prosecutors to obtain a criminal conviction before authorities can permanently seize an individual’s property. Under federal law, however, authorities can take cash, vehicles, homes and any other property and retain it, without ever charging the suspect with a crime. The Post also noted that although the Attorney General’s focus was on ill-gotten gains from drug dealers, it cited studies or seizures in Cook County, Illinois between 2012 and 2017. There the median value of assets seized was just over $1,000; the median value of seizures where federal agencies obtained a 20% share was about $9,000. Not exactly indicative of major drug trafficking activities . . .

The controversy has not been resolved. There is consensus that abuses have happened, but disagreement about their extent and whether the overall benefits to society are worth the cost of the instances of abuse.