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History & Reforms of Civil-Asset Forfeiture

Civil-asset forfeiture is a civil action that proceeds in rem against property involved in illegal activities. This allows the government to seize property by proving through a low burden of proof that the property itself, not the owner, was involved in criminal activities. Forfeiture is intended to deprive the wrongdoer of any reward from illegal activities or of any property utilized in the commission of illegal activities; however, its recent expansion and application to owners that are, in fact, innocent of any wrongdoing has led to calls for reform.

Civil-asset forfeiture was initially utilized in the United States in admiralty law.

Forfeiture allowed the government to proceed in rem against ships on evidence of illegal acts-such as customs violations-by crewmembers or captains. This allowed for the government to seize and sell the vessel, even where the vessel's owner was unknown, unavailable, or not subject to the court's jurisdiction, as was often the case. Courts upheld this practice as constitutional, even where the vessel's owner was not aware or involved in any illegal activity performed on or by the vessel.

Beginning in the 1970s, the scope of civil-asset forfeiture was expanded as a tool in the escalating fight against illegal drugs. In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act. This allowed for civil-asset forfeiture to be used to seize drug-related property, including drugs, materials used to produce and store drugs, and any aircraft or vehicles used to transport drugs. In 1978, Congress amended the Act to include all "moneys, negotiable instruments, securities" or other valuable items utilized to purchase drugs or traceable to a drug purchase. Six years later, the Crime Control Act of 1984 expanded the scope of civil-asset forfeiture to also include all real property or any interests in real property which is used to facilitate a violation of the Controlled Substances Act.

The first limitations of the civil-asset forfeiture power came in 2000 with the Civil Asset Forfeiture Reform Act (CAFRA). CAFRA increased the burden of proof necessary for seizure of property from probable cause--a very low standard--to preponderance of the evidence--the typical standard in a civil case. CAFRA also introduced an innocent-owner defense. If an owner can prove in court that he had no part in the illegal activity associated with the property, then the government must return the property to him. Finally, CAFRA mandated that counsel be appointed for indigent property owners, but only in extremely limited situations. Appointment of counsel is only required where the property seized is the primary residence or where appointed counsel is already representing the owner in a parallel criminal case.

Though CAFRA's reforms represented a step forward, calls for reform of the civil-asset forfeiture statutes remain strong. Though CAFRA increased the burden of proof that must be met for the government to seize property, some argue that the burden of proof should be higher or tied to a criminal conviction of the owner. Worries also exist as to improper incentives for law enforcement to overuse civil-asset forfeiture. Typically, all proceeds from forfeiture return directly to law enforcement. With federal civil-asset forfeiture alone totaling over 4.5 billion dollars in 2014, this is a large revenue source for law enforcement.

Additionally, even despite CAFRA's introduction of an innocent-owner defense, innocent property owners have continued to suffer significant harm because of civil-asset forfeiture. For example, one man had his home seized after his son was arrested for possessing approximately $40 worth of heroin. Forfeiture can also unfairly deprive owners of property where the law is uncertain--because the government must only prove that illegal activity occurred by a preponderance of the evidence, property can be seized even where a criminal conviction would not be sustained. For example, 72-year-old veteran Thomas Williams had his vehicle, cash, television, cell phone, and shotgun removed forcibly from his home in 2013. Williams, a medical marijuana card carrier, had been cultivating 12 marijuana plants, as allowed by law. However, police alleged that Williams's creation of additional seedlings to replace the full-grown plants that were dying violated the state marijuana laws. Finally, forfeiture can also harm innocent owners where multiple people have interests in property and one of the owners is involved in unlawful activity.

In 2010, the Institute for Justice graded the civil-asset forfeiture statutes of each state. Michigan's laws received a D-. At the time, Michigan laws mandated that all proceeds from forfeiture proceedings returned directly to law enforcement. Michigan also had refused to impose a higher burden of proof on the government or to require criminal charges to proceed with the forfeiture process.

Recently, however, Governor Rick Snyder signed a package of bills aimed at reforming Michigan's civil-asset forfeiture laws. While the reforms do not affect the original seizure, the state government must prove a higher standard--clear and convincing evidence--in court after the seizure in order to keep the property. Additionally, the new laws require law enforcement to report all revenues gathered through civil-asset forfeiture and subjects these records and reports to annual audits. This will aid in increasing government transparency: While Michigan reported proceeds of $20.4 million from civil-asset forfeiture in 2014, this figure represents only the eight percent of agencies who voluntarily chose to report. The changes implemented in this package of bills have been identified as an important step forward in reforming Michigan's civil-asset forfeiture laws and ensuring that innocent property owners are not harmed.

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