Michael: Well, I think that the amendments if anything are a band-aid. They are certainly not a solution. The amendments certainly do not address the excessiveness of fines like in the Timbs case. The financial penalties for most of the crimes involving civil asset forfeiture in Michigan are usually under $5,000. Most, if not all, of the forfeitures up to this point and that will continue to take place in Michigan, in my opinion, violate the excessive fines clause. When forfeiting property at the state level, the analysis should be whether the forfeiture penalty exceeds the financial penalty of the crime.
When there is a forfeiture case against real property, the government has essentially taken an interest in the property. While the government might not file an actual lis pendens or something with the register of deeds, it is my experience that some kind of injunction is filed preventing the homeowner from improving, selling, or borrowing against the real property. Whether the government physically takes the property or has a claim to the property or the property is held and disposed of by the police, a citizen’s traditional property rights associated with the right to own property are impaired during forfeiture, even if a conviction is required.
I had a case where a client owned two houses. He inherited one, and the other house was his marital home. The government filed a forfeiture action against both houses
and enjoined the homeowner from doing anything with them. The day the order was entered in the forfeiture case, my client could not borrow against the properties, improve or sell them. All of that was encumbered by the government action. The mere filing of the forfeiture deprived my client of his property rights without any due process. The amended statutes don’t undo that.
Jeff: I think what Michael says is right. The amendments do not address the excessive nature of the fine at all. The Timbs case says that excessive fines analysis applies to the states in the context of civil asset forfeiture. That is meaningful and more of a change than the series of statutes that the Michigan Legislature passed. The more powerful argument is against the taking of things that have no relation, no proportionality, to the crime committed.
The police can still take the property; they just can’t take it away. Which means that clients will find themselves in a situation where, under the threat of forfeiture, the police have taken property, leaving clients without funds to hire an attorney. Then, if your client waives as part of a plea deal, the police can keep the forfeited property. Clients will still have unequal bargaining power negotiating a plea on the criminal side. Also, the fact that [the amended statute] doesn’t apply to forfeitures in excess of $50,000 will just have the police looking for larger forfeiture cases going forward.
There are a number of general forfeiture provisions related to sex work, trafficking, and other things, but the current amendments only apply to forfeitures under the Controlled Substances Act of the Public Health Code. Call me skeptical, but I think that law enforcement is going to try every possible loophole to maintain this income stream, for lack of a better word—this policing for profit.
As a practice tip, there are a couple of things that we as attorneys need to continue to do on behalf of our clients facing civil asset forfeiture. One is to adequately inform the client about exactly what’s going down and what their rights are. Second, and at the same time, if a client doesn’t have full access to their assets, whether it's money or other assets, or the government has decided to forfeit your client’s real property, we need to immediately, I believe, make an excessive fines argument.
Luis v United States [578 US ___ (2016)], says that under certain circumstances, taking a defendant’s money, not clearly traceable to some kind of criminal activity or perhaps excessive in light of the crime, that prevents the defendant from hiring an attorney can implicate not just the excessive fines provision, but also the Sixth Amendment right to counsel. We want to continue to emphasize that.
Jeff: The statute provides an exception for when an owner waives the conviction. Whether that is informed or whether there is actual consent there is a very good question.
Jeff: I would not go that far. I mean, clearly these amendments are a significant thing. Anything that is as important as civil asset forfeiture, that really goes to the root of so many abuses, that does what this statute does is commendable. But you are talking to a couple of criminal lawyers.
Michael: It’s an attempt to be transparent, but not really having an impact on the concerns that attorneys have, which are due process rights, excessive fines, and Eighth Amendment protections, things like that.