Poor protections for innocent third-party property owners
As much as 100% of forfeiture proceeds go to law enforcement
State Forfeiture Laws
Despite modest reforms approved in October 2015 that raised the standard of proof required to forfeit property, Michigan’s laws still earn a D-, largely because the state’s large profit incentive remains intact. The standard of proof in forfeiture cases is now clear and convincing evidence—higher than preponderance of the evidence but still far from the gold standard of proof beyond a reasonable doubt. For seizures where drug activity is alleged—as it is for most seizures—innocent owners bear the initial burden of proving their innocence or ignorance of the activity to recover seized property. But in innocent owner claims where no drug activity is alleged, the government bears the burden of proof. Finally, Michigan law enforcement agencies may retain up to 100 percent of forfeiture proceeds.
Law enforcement agencies in the state must file annual forfeiture reports with the Michigan State Police, which then compiles and submits them to the state Legislature. In October 2015, the reporting requirements were strengthened to include forfeitures under more statutes. The improvements also included more detailed agency reporting requirements, such as whether someone was charged with a crime and the alleged violation that led to the seizure. Starting July 1, 2017, the State Police will be required to publish the aggregate reports online; part of the 2015 reform package, this statutory requirement codifies current practice. The reports provide some transparency, but they could be improved by including details about forfeiture expenditures. Between 2001 and 2013, Michigan law enforcement agencies reported more than $244 million in gross forfeiture proceeds—an average of almost $19 million per calendar year.
State Law Sources
Standard of proof
Effective Jan. 18, 2016, clear and convincing evidence. H.B. 4505, 98th Legis., Reg. Sess. (Mich. 2015) (to be codified at Mich. Comp. Laws § 333.7521(2)).
Innocent owner burden
Owner for drug-related forfeitures, government for other types of forfeiture. Mich. Comp. Laws § 333.7531(1); In re Forfeiture of a Quantity of Marijuana, 805 N.W.2d 217, 221 (Mich. Ct. App. 2011); cf. Mich. Comp. Laws § 600.4707(6) (placing burden on government for non-drug-related forfeitures).
Up to 100 percent. Mich. Comp. Laws § 333.7524(1)(b)(ii).
Michigan ranks 44th for federal forfeiture, with over $127 million in Department of Justice equitable sharing proceeds from 2000 to 2013.
State Forfeiture Data: Reported Forfeiture Proceeds
Average per year
Source: Annual Michigan State Police reports of all reporting law enforcement agencies’ forfeitures submitted to the Legislature and published online. Values represent the total value of forfeited property. Several agencies’ reports are missing for any given year, indicating that these figures likely severely underreport the full value of forfeitures in Michigan.
Federal Equitable Sharing
Michigan’s law enforcement agencies have made extensive use of the Department of Justice’s equitable sharing program over the years, earning the Great Lakes State 44th place in a nationwide ranking. Between 2000 and 2013, Michigan law enforcement agencies received $127.6 million in equitable sharing proceeds from the DOJ, averaging $9.1 million per calendar year. Nearly all equitable sharing proceeds—97 percent—resulted from joint task forces and investigations, the equitable sharing activity left largely unaffected by new DOJ rules. It appears those rules will have little effect on equitable sharing participation in Michigan. Agencies also received more than $19 million in equitable sharing proceeds from the Treasury Department over the 2000 to 2013 fiscal years.