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Detroit Legal Blog

Michigan Court Strikes Down Part of Civil Asset Forfeiture Law

Sep 19, 2016, by Maurice Davis in Constitutional Law, Criminal Defense, Drug Crimes, Legal Blog

This August, the Michigan Court of Appeals dealt a significant blow to civil forfeiture, which occurs when law enforcement confiscates property they believe was obtained or used in connection with a crime. This controversial practice has been at the heart of the movement to reform Michigan’s criminal justice system.

Notably, the authorities can keep confiscated property even if the suspect is never convicted of a crime. Property owners must post a bond before challenging the seizure of their property in court. But according to the Court of Appeals, this practice is unconstitutional when the owner does not have enough money to pay the bond.

In Some Cases, Civil Forfeiture May Be Unconstitutional

The case arose after the arrest of Michigan resident Shantrese Kinnon on drug charges. The police seized vehicles, electronics, and cash when executing her arrest warrant. To challenge the seizure of her property in court, Mrs. Kinnon would have needed to post a bond of $2,005. Having only $1,000 on hand, she had no opportunity to recover her property.

Under Michigan Code section 333.7523, people whose property was seized must post a band worth 10% of the property’s value before going to court to challenge the civil forfeiture. The bond may be anywhere between $250 and $5,000, and when owners fail to pay it within 20 days of the seizure, they lose all rights to the property. Under this rule, the authorities can easily confiscate property from suspected criminals who don’t have enough money to post a bond.

In practice, this means that only some suspects can afford to challenge the seizure of their property. The court ruled that such a scheme is unconstitutional in some cases because it puts the poor at a significant disadvantage when facing the criminal justice system. In other words, Michigan’s civil forfeiture law is still constitutional—it is only problematic in specific cases such as that of Mrs. Kinnon.

Are We Seeing the Last Days of Civil Forfeiture?

Civil forfeiture doesn’t just deny fundamental rights to criminal suspects—it also provides a financial motive for law enforcement to seize as much property as possible. This is because the law enforcement agency effecting the seizure gets to keep the property once it’s forfeited. Thus, the police have an incentive to confiscate as much property as possible. According to a report by the Institute for Justice, Michigan law enforcement agencies have confiscated over $244 million from criminal suspects.

For these reasons, civil forfeiture is under attack from both sides of the political aisle. For example, Republican State Representative Peter Lucido has introduced a bill that would repeal the requirement for drug crime suspects to post a bond to challenge the confiscation of their property. The proposed legislation is gaining momentum, with the House of Representatives approving it by a 100-7 vote last March.

Being charged with a drug crime is a harrowing experience. On top of that, many drug crime suspects need to fight to retain their rights to confiscated property. In such situations, a skilled Detroit criminal defense lawyer can make a world of difference. If you’re facing drug charges and the confiscation of your property, call Davis Law Group today at (313) 818-3238 for a free and confidential consultation of your case.