Panelists discussed civil asset forfeiture in a talk Wednesday afternoon at the Law School citing multiple shortfalls and concerns with the policy.

The talk was presented by The Federalist Society and Law Students for Sensible Drug Policy, and moderated by Law Prof. Adam Pritchard.

Civil asset forfeiture is a legal tool that allows law enforcement officials to seize property they believe has been involved in certain types of criminal activity.

The panelists included Ted Nelson, a retired Michigan state police officer; Julie Beck, an assistant U.S. attorney who also serves as chief of the Federal Forfeiture and Financial Litigation Unit in Detroit and Clark Neily, senior attorney at the Institute for Justice.

The panelists outlined how civil asset forfeiture happens, from the initial forfeiture by police to the process through the court system to relief available after the forfeiture has been consummated.

Neily said civil forfeiture is currently a system of zero accountability, noting that in civil cases, unlike criminal cases, there is no investigation to accuse someone of engaging in illegal activity. Rather, law enforcement can use probable cause to seize property on sight. Because of this, Neil said police often abuse civil forfeiture by taking more from their suspect than necessary.

That topic of abuse of forfeiture and more broadly, whether law enforcement values profits over innocence, Nelson said civil forfeiture cases are tied to the war on drugs. In the beginning, he said, asset forfeiture was intended as a tool to combat drug distribution. However, he said he has seen the law being used by law enforcement for profit, rather than for dealing with drug use.

“The war on drugs, which started back when my career started, has not been very effective,” Nelson said. “As a matter of fact, we are spending a lot of money in an area that is not having the effect that we thought it would have on drug use in this country. It is my belief that the war on drugs has been a failure. The targeting of drug people had more to do with assets than it had to do with the drugs themselves.”

Nelson also noted that in 2011 the Michigan legislature changed the way asset forfeiture was allocated  instead of the seized funds going into a general fund to combat narcotics, local police forces are able to use the funds as they wish. He charged that this has led to the promotion of asset forfeiture.

“I think that opened up the floodgates for revenue,” Nelson said. “And I think that opened up the floodgates for policing for profit.”

In a forfeiture report released by the Michigan State Police, in 2014 alone $24 million in items was seized by law enforcement in the state of Michigan. Nelson added that eighty-six percent of seizures in Michigan go without judicial review or any court proceedings, which he said allow police enforcement to avoid justifying why they investigated the victim and took their assets.

Focusing her remarks on Federal policy discussing the Civil Asset Forfeiture Reform Act enacted by Congress in 2000, which Beck said it was in response to state abuse of civil and criminal forfeiture seizures that act in a system with no prior restrictions. The act, among other reforms, required government bodies obtain a warrant based on probable cause before seizing property.

One particular problem, she noted, is that nationally 80 percent of seizures result in administrative forfeitures and go without claims challenging the forfeiture. Claims are normally not made, even when the person who had their assets seized was notified. Beck said the lack of claims stem from a number of factors, such as because it is too difficult to understand the notice, since the person often does not have money for a lawyer or because the person cannot claim their assets because it could put them under criminal investigation.

Neily echoed Beck’s sentiments, stressing the complications surrounding asset forfeiture law. He said there are also few claims made because lawyers do not have enough training to take on such cases and win.

Speaking to efforts to combat possible corruption used with civil asset forfeiture, panelists emphasized the need for discretion among those supervising cases, as well as restriction of when it can be used. Beck said though cases exist where seizures go without issue, more oversight must be used in cases where it is not as clear what crimes were committed by people in roles like hers.

“These are law enforcement tools that can seem very heavy handed,” Beck said. “They should be used responsibly. And if they are not used responsibly, then the assets should go back.”

Neily, who has worked on asset forfeiture for five years, called it the worst public policy he has ever encountered because it unjustly targets minorities who do not always have the means to make claims and fight back against law enforcement that seizes their assets.

“I don’t think you could design a worse public policy,” Neily said. “It routinely victimizes innocent people who, generally speaking, are minorities and of lower socioeconomic status.”

Reiterating that civil asset forfeiture is now used primarily for profit rather than combating drug and narcotic use, Neily said he thinks the policy should be ended entirely, and, until that happens, it should continually be restricted so that fraudulent activity is avoided.

“Most people have no idea what civil forfeiture is,” Neily said. “But when it’s explained to them, 90 percent of people say that shouldn’t be a policy. So I think we’re moving in that direction.”

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