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'Forfeitures' are state confiscations by any other name
Tuesday, September 13, 2005
A decades-old state law used to seize money and property in drug investigations needs rewriting.
That's evident, after a ruling this summer by Bay City-based U.S. District Judge David M. Lawson in the case of two Alger men.
William Popham and Michael Crane face criminal charges in federal court that they ran an illegal marijuana- and hallucinogenic mushroom-growing operation.
Their attorneys tried to get the charges thrown out.
No such luck.
But their minor victory in convincing the judge to order some confiscated property returned points up a major flaw in Michigan law.
Acting on a warrant, Strike Team Investigative Narcotics Group - STING - seized marijuana, mushrooms and guns.
They also took, among many things, motorcycles, chainsaws, spare pickup truck doors, a chainsaw sharpener and a trombone.
"It is difficult to conceive of a link between marijuana growing and these items, especially the trombone" Lawson wrote in his 23-page opinion.
He ordered the items returned.
The goods, however, had already been auctioned off.
All this before the men had started even the first day of any criminal trial.
Under the U.S. Constitution, these men, as all people, are presumed innocent until proven guilty in a court of law.
The state's forfeiture law stands that truth on its head.
It's up to the individual to prove the property's innocence - that the property wasn't the ill-gotten gains of illegal activity.
If you've got a coffee can of cash buried in the back yard, a wad of bills under the bed or a trombone in the closet, police can take it.
And keep it.
All without a trial.
Back in the dawning days of the federal "War on Drugs" in the early 1980s, such laws were passed by Congress and many states to cripple drug kingpins, who were tough to nab, but had property that could be seized. The property is either re-used to fight crime, or sold to help pay for the drug fight.
In practice, though, such laws have become a disturbing reminder of how closely we can slip toward abuse of authority.
Congresss recognized that, and reformed federal forfeiture laws a few years ago.
The state of Missouri in 1993 led the way with a rewrite that requires a criminal conviction on a felony charge before a person's assets and property can be seized and sold in a drug case.
That's where Michigan legislators should head, to make the state's still-draconian law more in step with the intent of the U.S. Constitution.
The Fifth Amendment says that, among other things, people shall not be deprived of their property without due process of law.
Taking your stuff and then requiring you to prove your innocence is not "due process" as any free American understands it.
These "forfeitures" are state confiscations by any other name.
They leave an ugly taint on our police, our courts and our society.
Making such laws toe a more Constitutional line would be more than right.