Michigan police agencies seized some $23.9 million last year from suspected drug traffickers, according to a forfeiture report released by the Michigan State Police.
Subtracting costs and shares of assets paid out to partnering organizations, state law enforcement agencies netted $20.4 million, according to data disclosed last month in the Michigan State Police 2015 Asset Forfeiture Report. Those numbers are about even with what MSP declared in its report covering 2013, when $24.3 million in assets were seized, netting $20.2 million. In 2012, $26.5 million in assets were forfeited, with $22 million netted.
However, figures from Michigan’s drug asset forfeiture program, which focuses on the seizure of cash and property assets of drug traffickers obtained through illegal activity, may be undercounted.
Of the 686 law enforcement agencies in Michigan that were sent a Government Asset Forfeiture Report form, 56 agencies failed to respond (there is no penalty for not responding), said Shanon Banner, a spokeswoman with the Michigan State Police.
Of the responding agencies, 332 reported asset forfeitures and 298 reported none.
Not a single county prosecutor’s office of the 69 that filed reports with the state reported asset forfeitures; prosecutors in 14 of Michigan’s 83 counties did not file reports.
Prosecutors in Wayne, Oakland and Macomb counties did write reports, Banner said.
The vast majority of forfeitures proceeded via “administrative forfeiture” rather than the circuit court system.
Among local police agencies, 81 percent of cases were handled by administrative forfeiture. Among multijurisdictional task forces, the proportion of cases handled that way was 72 percent.
Some 70 percent of Michigan State Police forfeiture proceedings were handled this way, as were 85 percent of those initiated by the state’s 83 sheriff’s offices.
Victor Fitz, Cass County prosecutor and immediate past president of the Prosecuting Attorneys Association of Michigan, explained the administrative asset forfeiture procedure: When property is seized, its owner is sent notice and can contest the seizure within 20 days. If that happens, the case proceeds through the circuit court system. If the owner fails to do so, he or she forfeits ownership to the seizing agency.
Asset forfeitures are a civil, not criminal, process, Fitz said, because the target is property, not an individual. That’s why property can be seized even when criminal charges are not filed.
“A lot of times, people don’t want to throw good money after bad” by pursuing a court hearing they will likely lose, Fitz said.
The current standard for asset forfeitures is “a preponderance of the evidence.”
But if the forfeiture reform passed unanimously by the Michigan Senate last week becomes law, that standard will shift to “clear and convincing evidence.” That is above a preponderance but below the “beyond a reasonable doubt” standard required in criminal cases.
Gov. Rick Snyder’s signature is the last remaining hurdle to the measure becoming law, and he is “starting a thorough review before making a decision how to proceed,” spokesman Dave Murray said Friday.
The Prosecuting Attorneys Association of Michigan supports the Senate reform, Fitz said, along with its reporting requirements. A higher standard and additional transparency should ensure that seizures “remain viable” as a law enforcement tool, he said.
A move to a clear and convincing standard would be a “step in the right direction,” said defense attorney William Maze, who has worked dozens of asset forfeiture cases in Wayne County. But Maze said a better reform would be barring forfeiture proceedings until after a conviction has been obtained.
One of Maze’s clients was visiting a friend in Detroit when police came to serve a drug search warrant. Because the woman was present when the warrant was served, police swept her into the action and filed notice to seize her car. Maze was able to get the car back, but pointed to that example as an abuse of the forfeiture system.
Oakland County Sheriff Michael Bouchard said his office works “hand in glove” with Oakland County Prosecutor Jessica Cooper in forfeiture matters.
The prosecutor’s office handles all sheriff’s office forfeiture cases in circuit court, and Bouchard said the offices take a conservative approach. He cited the case of an Oakland County business that was selling drugs, but also had legitimate business income. The sheriff’s office did not push for seizure of the business due to that legitimate income.
Bouchard was an advocate for the reform the Legislature passed. He believes the “clear and convincing evidence” standard demands a “tangible connection to criminality” that will lessen abuses.
“Being in the room doesn’t mean there’s a nexus” to illegal activity, Bouchard said.
In written testimony to the House Judiciary Committee in May, Ashley Duval spoke in favor of forfeiture reform.
Duval’s family farm was seized via forfeiture after a 2011 Drug Enforcement Agency raid. The family had been growing medical marijuana at the farm.
In addition to the farm, police seized “cars, medical records, cameras, video recorders, computers, guns” and more. Though Ashley Duval was never charged with a crime, her father and brother were charged and convicted, and the authorities lumped their property together. Duval wrote of feeling hopeless in the face of a seizure that would be costly to fight.
“Asset forfeiture laws need to be completely redone,” Duval wrote. “That day (of the raid) was one of the most heartbreaking, brutal days ever, watching (police) take what they wanted and not being able to do a darn thing about it.”
In Macomb County, local police seized more than $2 million in 2014, down almost $700,000 from 2013. The county sheriff’s office seized $181,619 in assets, up almost $23,000 from the previous year.
In Oakland County, local police seized just less than $1.8 million in assets in 2014, up more than $345,000 from 2013. The sheriff’s office seized $393,845 in 2014, up $32,682 from 2013.
In Wayne County, local police seized $5 million in assets in 2014, down almost $1 million from 2013. The sheriff’s office seized $525,754 in assets, down $108,000 from the year before.
Paul Walton, chief assistant to Cooper in Oakland County, said a change in the burden of proof “would make no difference in the way we proceed” in forfeiture cases. Only specialists staff the office’s asset forfeiture unit. If it’s a business in danger of being seized, the office asks for records to see if there is legitimate income.
“We’re not in it for the money,” he said. “There’s always a proportionality argument” in forfeiture cases, Walton said, meaning that what’s seized is the proceeds of criminal behavior, not property taken on a hunch or because someone was in the wrong place at the wrong time.
“That power is a pretty big sword to wield,” Walton said.
James David Dickson, The Detroit News 11:55 p.m. EDT October 10, 2015
