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Federal, state lawmakers push forward on reforms for asset forfeiture laws

Posted at 10:18 PM, May 07, 2015
and last updated 2015-05-07 22:18:04-04

LANSING, Mich. -- Lawmakers at both the state and federal level are looking to reform civil asset forfeiture laws to make it more difficult for police agencies to seize property from individuals believed to be involved in criminal activity, even if they have not been charged with a crime.

In February, Wally Kowalski of Van Buren County told FOX 17 his home had been raided by the Michigan State Police before he had ever been charged with a crime.

Kowalski, who has a Ph.D from Penn State University and a background in engineering and specializes in ultraviolet light technology, has been a medical marijuana card holder for several years. He was growing the drug for medicinal use for himself and several designated patients at a home that’s been in his family for decades when it was raided by the Michigan State Police’s Southwestern Enforcement Team in September 2014.

“I realized they were raiding me for the marijuana,” he told FOX 17 in February. “I went right up to them and said ‘I’m a legitimate grower and I’ve got cards, this is a legitimate operation’ but they didn’t buy it.”

Kowalski was later arrested and charged with two felonies of manufacturing and distributing marijuana. He could face up to seven years in prison if convicted.

In Lansing, Republicans in the House introduced a package of bills in April aimed at requiring stronger and more uniform reporting of forfeitures from police agencies. The reforms would also raise the evidentiary standards to "clear and convincing" rather than the current "preponderance of evidence."

“We’re not looking to do away with the tool, just looking to provide protections," said Rep. Kevin Cotter, the Republican House Speaker from Mt. Pleasant.

Cotter said the reforms are a priority which have been included in the 2015 House GOP Action Plan.

The proposed legislation, HB 5404 and HB 5408, have yet to debated in the House Judiciary Committee, but could be taken up as early as the end of the month. The bills would still have to be taken up for votes and passed in the House and Senate before being signed by the governor.

The most recent asset forfeiture report available from Michigan State Police shows more than $24 million in cash and assets were seized from Michiganders in 2013.  Since 2000, more than $250 million in forfeiture revenue has been collected.

Nationally, civil asset net forfeitures rose to $4.2 billion in 2012, which was up from $1.7 billion in the preceding year, according to the U.S. Department of Justice.

Meanwhile, U.S. Rep. Tim Walberg, R-Michigan, introduced reform legislation of his own earlier this year dubbed the FAIR Act, that would restore the Fifth Amendment's role in civil forfeiture proceedings.

“It's guilty until proven innocent in the (current) case, and that’s not the way we should work it," Walberg told FOX 17.

“To use a tool of asset forfeiture to try to get at drug running and money laundering but ultimately it ends up becoming a fundraising tool for law enforcement agencies, that’s a problem."

The federal reform in many ways mirrors what's been proposed at the state level and if passed would work in tandem with reforms proposed in Lansing, if passed, Walberg said.

“We can do it at the federal level, which puts the feds in context with how we ought to carry out the law, but it’s still the responsibility of the states to have their civil asset forfeiture law coincide with ours to make sure it works for their communities," he said.

The proposed federal reforms would also do away with the practice known as equitable sharing which allowed for up to 80 percent of any seized asset’s worth to be given back to the local department that seized it for supplemental revenue. Similar policy was announced by former U.S. Attorney General Eric Holder in March.

Walberg wants the new limits made into law, not just policy and argues the practice provided 'perverse incentive' for police agencies to act aggressively without having to pursue criminal charges.

"All of this goes toward good government," he said. "It still leaves a tool that is valuable in place."

The federal legislation, like proposed reforms in Lansing are still waiting to be heard in their respective committees and have yet to come up for a full vote.

Walberg said there's been aggressive work behind the scenes to move the reforms forward.

In Lansing, Cotter told FOX 17 support for reform has reached a 'critical mass' and he has confidence the bi-partisan effort could potentially make it through the legislature before the end of the year.