That was in the 1990s, when the future Ann Arbor state senator was still a U-M undergrad. But civil assets forfeitures—police agencies seizing property they believe was involved in drug dealing and other crimes—were still happening frequently in Michigan when Irwin was elected to the Michigan House of Representatives in the 2010s. In 2013, local and state agencies seized cash and assets worth $20 million.
Yet when Irwin proposed legislation to rein in the practice in 2014, he says, “the reaction I got from some of my colleagues at the time was ‘oh, that doesn’t happen; that’s not real.’”
Irwin knew better, he says, “because of my involvement in cannabis legalization. There were a ton of folks who were medical cannabis providers or caregivers who were having their homes [and] cars taken.”
“That proposal went nowhere,” Irwin admits, but he kept pushing the issue by “encouraging some of the conservatives to see that this was a bipartisan thing.” His efforts began paying off in 2015, when then-governor Rick Snyder signed a seven-bill package requiring stronger evidence of criminal involvement.
“There wasn’t much difference” between the two bills, Irwin emails. What changed “was conservative groups like the Mackinac Center and Americans for Prosperity (the Koch group) that started talking about the issue. John Oliver did a segment on Last Week Tonight … There was a bubbling up of talk about how silly it is for the government to sue and convict inanimate objects.”
Additional reforms followed, culminating in the passage of bipartisan bills in 2019 prohibiting law enforcement from seizing assets under $50,000 from people who hadn’t been convicted of or plead guilty to a crime.
By 2021, the latest year with solid numbers, forfeitures had fallen to $12 million. And “forfeiture activity at the lower amounts has declined even more,” Irwin reports. “That is where you saw the worst abuses.”
Irwin would prefer ending civil asset forfeiture completely but thinks closing the two major exceptions to the conviction requirement would be “very politically difficult.”
The first exception, allowing seizure of assets over $50,000 without a conviction, “was embedded in the overall reform, and so I ended up voting for the [2019] bill,” he remembers. “The idea was that if it’s some real criminal kingpin, they’ve got more than $50,000 in assets [and] the wherewithal to defend against this” by challenging the seizure in court.
The second exception, lowering the threshold for seizure without conviction to $20,000 at airports, was added in 2022. Irwin says airport police argued that they’ve “got a lot of drug mules and people who are carrying cash back to drug operations, and we need a lower limit so that when we find cash that’s obviously proceeds from drugs we can seize it’.”
“I ended up voting against that bill,” he says. “What I said in committee was, ‘Well, if it’s so obvious that these monies are drug proceeds, why don’t you just bring a case and charge them and convict them?”
This year’s Democratic takeover in Lansing doesn’t improve the chance of ending the exceptions. Democratic governor Gretchen Whitmer “signed the exception relative to airports,” Irwin points out. “On a lot of issues, but particularly a lot of criminal justice issues, there are bipartisan supporters and bipartisan opponents.”
Ann Arbor’s 2023 budget shows $4 million in fines and forfeitures, but parking fines “constitute more than half of this revenue source,” the city’s website explains. “The rest of this revenue category is collected through various fines assessed by the Fifteenth District Court.” However, the court “doesn’t do” civil asset forfeitures, says deputy court administrator Jim Bauer—that revenue is from taxes and other fines.
The Washtenaw County Sheriff’s Office still does civil asset forfeitures, but not many: Sheriff Jerry Clayton reports six seizures in 2022 totaling $30,289, of which $8,658 was returned to owners who challenged the seizures.
“We don’t focus our energy and time attempting to forfeit small amounts of money, property, etc.,” Clayton emails. “We shouldn’t in any form try to balance our budget on the backs of folks introduced into the [criminal justice system]. Generating revenue should never be the desired outcome of any of our activities (who we stop, search, arrest, etc.).
“That stated, there is a place and purpose for forfeiture,” the sheriff writes, “especially in terms of seizing the assets of major/significant contributors of violence, illegal narcotics activity that comprise a neighborhood’s ability to be ‘well and safe.’ Those individuals should not be able to enjoy the proceeds gained by decimating neighborhoods.”
“He’s exactly right,” Irwin agrees. “The original idea behind these laws was that you’ve got these criminal kingpins who are making tons of money [so] they’re able to shield themselves from the criminal liability. And so therefore we need a new tool to be able to go after those types of criminals.
“The tool still exists for them to go after folks who are engaged in criminal activity,” Irwin concludes. “If police believe that assets are proceeds from criminal activity, they can still seize those assets.
“But under the reform we passed, they have to give those assets back if they’re not prepared to charge the individual with a crime or otherwise demonstrate that the assets ought to be forfeited because they’re proceeds of a crime.”
