Forfeiture with Conviction

By Rachael M. Sedlacek posted 08-19-2019 13:25


Two years ago, my colleague John Swift blogged about civil asset forfeiture. At the time, courts were starting to question whether these proceedings comported with due process. In Michigan, for example, property seized under the Controlled Substances Act (CSA) could have been forfeited within 20 days of seizure, without recourse—even if there was no conviction and even if the property was extremely valuable. To many lawyers, forfeiture laws like Michigan’s seemed vulnerable to a host of due-process challenges.

In February 2019, this argument gained traction when SCOTUS issued Timbs v Indiana. In Timbs, Indiana sought to have Timbs forfeit his $42,000 Land Rover in connection with a heroin charge. The car had been purchased with Timbs’ father’s life insurance proceeds and was valued at more than four times the maximum fine that could have been assessed to him for the drug conviction. The Indiana Supreme Court held that forfeiture of the Land Rover was not unconstitutional. SCOTUS reversed, holding that the Eighth Amendment’s ban on excessive fines applies to states.

Interestingly, about a month before Timbs was decided, legislation was introduced in Michigan to amend forfeiture proceedings under the CSA. When legislators debated the bill, they considered Timbs. Despite some concerns that it was too soon after Timbs to restructure forfeiture, the legislative amendments passed and became effective August 7. Now, property seized for a violation of the CSA is generally not subject to forfeiture and disposition unless there has been a criminal proceeding related to the property and the defendant pleads guilty to or is convicted of violating the act. MCL 333.7521a(1), (5). For more details on the amended statute, see chapter 9 of Collateral Consequences of a Criminal Conviction.