There’s an under-the-radar fight brewing in Washington, D.C., and in states across the nation. The debate concerns when law enforcement can take private property from citizens via a process known as civil forfeiture.
In most states, law enforcement entities can take and keep assets without even charging someone with a crime. The items are usually cars or cash, but they can also be cellphones, legal weapons, houses, and more.
The dispute largely pits advocates of criminal justice reform — both conservative and liberal groups — and harmed citizens against prosecutors and law enforcement. Under Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsOvernight Hillicon Valley — Apple issues security update against spyware vulnerability Stanford professors ask DOJ to stop looking for Chinese spies at universities in US Overnight Energy & Environment — Democrats detail clean electricity program MORE, the federal government has also increasingly been an obstacle to reform.
In concept, civil asset forfeiture is supposed to punish criminals — especially drug dealers — by taking the proceeds of illegal activity. But in practice, innocent citizens across the country are losing their property, typically without the need for law enforcement to prove any wrongdoing. The Institute for Justice, a leading group pushing forfeiture reform, has represented grocers whose savings have been forfeited to the police, a Burmese Christian rock band, second-generation hotel owners and others. All these parties suffered the loss of their assets; none were actually charged with a crime.
This policy debate is very similar to one that took place across the United States just over a decade ago on eminent domain. That’s the process by which the government can seize control of private property by claiming it will be used for some public purpose. Most people agree this is a necessary government power — as long as the property owner is justly compensated and the land is used for genuine public goods, such as roads, sewers, or other vital infrastructure.
But government pushed the bounds and began using eminent domain unjustly. Cities began taking homes to raze them and give the land over to private corporations, arguing that the potential development was a “public good.” This happened regardless of whether homeowners wanted to sell. The result was situations like Poletown and Kelo, in which people were removed from their homes simply for being in the way of government planners.
In Poletown, the city of Detroit took 1,300 homes, 140 businesses, six churches, and a hospital and turned them over to General Motors to build a new facility. In Kelo, the city of New Haven, Connecticut, forced out homeowners to give their land to Pfizer — which, despite receiving $80 million in government funds, eventually left town.
Like eminent domain, civil asset forfeiture is a legitimate tool of government, but if proper protections for individual private property rights are in place. Eminent domain should only be used for true public use, and forfeiture should only occur after a person is convicted of a crime.
But for many people, that is not the reality. In my home state of Michigan, the latest annual forfeiture report showed that more than 700 innocent people had their assets forfeited to law enforcement. In 2016, the latest year for which there is data, 523 individuals had cash, cars and other property taken despite a lack of criminal charges. And another 196 were charged but later found innocent of criminal activity related to the forfeiture.
These practices may soon change, thankfully. In the past decade or so, citizens across the national have become aware of the problems related to eminent domain and civil asset forfeiture. After the Supreme Court ruled against Suzette Kelo, the Connecticut homeowner, nearly every state passed reforms severely limiting the practice. And today, 14 states require a criminal conviction before the government can take ownership of property via civil asset forfeiture, most which passed reforms in recent years.
The Michigan legislature may be the 15th, as the state House considers a bill to join that list. This is a bipartisan movement uniting Democrats and Republicans, liberals and conservatives, and people of all political stripes — a refreshing change from our normally hyper-partisan policy debates.
Jarrett Skorup is the director of marketing and strategy at the Mackinac Center for Public Policy, a research and educational think tank located in Midland, Michigan. He co-authored a study on civil asset forfeiture with the ACLU of Michigan.