Reforming Property Forfeiture Laws to Protect Citizens' Rights: Why and How to Curtail Abuses of Laws that Permit Private Property Seizures

Mackinac Center for Public Policy Report, 1998

Chapman University Law Research Paper No. 08-04

44 Pages Posted: 8 Sep 2006 Last revised: 28 Sep 2014

Donald J. Kochan

Chapman University, The Dale E. Fowler School of Law

Abstract

The Framers of the United States Constitution understood that freedom depends upon the vigorous protection of private property rights and that this protection was therefore the most sacred obligation of government. However, despite Fifth and Fourteenth Amendment guarantees, recent years have witnessed a massive expansion of a legal practice known as "asset forfeiture." Hundreds of asset forfeiture laws give state and federal law enforcement agents the power to seize property even without proof of the owners' guilt in a criminal trial because, in many cases, the government considers the property itself to be the criminal. This paper examines the practice of asset forfeiture in Michigan and recommends reforms to help authorities prosecute criminals while still protecting the property rights of innocent citizens and preserving the freedom and due process rights of everyone. Michigan and federal policy makers should: remove incentives for law enforcement agencies to employ asset forfeiture; end federal "adoption" of state forfeiture cases; shift the burden of proof from property owners to government; establish nexus and proportionality requirements for forfeiture; eliminate legal hurdles to citizens' ability to challenge forfeiture; require law enforcement agents to publicly justify forfeiture proceedings; enact protections against forfeiture for innocent owners of property; give third-party creditors the chance to recover seized property; and ensure that asset forfeiture reforms do not include an expanded definition of criminal behavior.

Keywords: Property, Takings, Asset Forfeiture, Constitutional Law, Civil War, Seizure, Due Process, Michigan

JEL Classification: B00, D60, E00, H11, H19, K11, K20

Suggested Citation

Kochan, Donald J., Reforming Property Forfeiture Laws to Protect Citizens' Rights: Why and How to Curtail Abuses of Laws that Permit Private Property Seizures. Mackinac Center for Public Policy Report, 1998; Chapman University Law Research Paper No. 08-04. Available at SSRN: https://ssrn.com/abstract=928737

Donald J. Kochan (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States
714-628-2618 (Phone)
714-628-2576 (Fax)

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