Forfeiture Without Conviction

By John B. Swift posted 11-07-2017 11:48


Forfeiture, by its very definition, is a consequence of certain immoral or illegal behavior. Setting aside a real estate forfeiture, which is purely a contractual remedy (albeit a rather one-sided one), civil asset forfeiture is a common method for the government to seize and liquidate private property used in or associated with the commission of a crime. Of course, this gets a little fuzzy when talking about forfeiture under the Michigan Controlled Substances Act, which doesn’t actually require a criminal conviction. In fact, more often than not, the law enforcement agency doesn’t even need to prove the property was connected to a crime. That’s because an owner has only 20 days after the property was seized to file a claim to it—and people often miss this brief window. If the owner fails to timely file a claim to the property, it is permanently forfeited without any process.

In terms of crime deterrence, at least on its face, civil asset forfeiture seems to make sense. If you take away the instrumentalities of crime, it would logically follow that crime is less likely to occur. In the case of, say, El Chappo, who had at one time created a massive infrastructure for drug sales and distribution, the only real way to break that up would be for the government to seize his assets (if it can find them). In fact this was the justification offered by U.S. Attorney General Jeff Sessions for recently reinstating adoptive forfeiture after former Attorney General Eric Holder had all but eliminated it. By contrast, imagine taking away a person’s car and $500 in cash because he or she possessed an ounce and a half of pot. A federal judge in Indiana thinks maybe that’s crossing the line, at least in terms of the state’s holding the property before any finding of criminal activity or association with it.

Apart from due-process concerns, civil asset forfeiture is controversial because the law enforcement agency that seizes the assets often gets to keep the forfeited property or money for its own use. I recommend checking out our recent on-demand seminar discussing civil asset forfeiture and how it has been playing out in Michigan with medical marijuana. Also of interest is this recent discussion at the 2017 Constitution Day Event, which gave a few different sides of the issue.

1 comment



11-09-2017 16:38

Or, an actual example, Detroit Police seized a vehicle for 1 gram of pot.  Yes, 1 gram. Apparently some medical marijuana facilities sell out the back door, and the DPD sits in wait.  The fee for return of the car was $700 (1st offense), paid to the DPD, plus towing and storage.  The offset was that they did not prosecute the minor who was caught.  And legal fees would have been more than $700.00.