This opinion editorial first appeared in the Orlando Sentinelon December 13, 2015.
Without ever needing to convict someone of a crime, law enforcement agencies can take innocent people’s cash, cars and other valuable property. Now, two new reports are shining a light on this controversial practice known as “civil forfeiture.” According to the Institute for Justice, a nonprofit, public interest law firm, Florida’s civil forfeiture laws are in dire need of reform, receiving a D+ grade in IJ’s nationwide study, “Policing for Profit.”
Unlike criminal forfeiture, which requires a criminal conviction before property can be forfeited, civil forfeiture has no such requirement. In Florida, civil forfeiture only requires “clear and convincing evidence” — a higher standard than in many states but still lower than the “beyond-a-reasonable-doubt” standard used for criminal convictions.
Meanwhile, it can be very difficult for property owners to fight back, especially when hiring an attorney costs more than the value of the seized property. So even if they have done nothing wrong, many property owners either walk away or make do with settlements.
According to a recently released survey conducted by the Florida Legislature‘s Office of Program Policy Analysis and Government Accountability, out of nearly 19,000 seizures by responding law enforcement agencies, only 16 percent were contested by property owners. Even fewer actually ended in a civil trial — just one percent of cases. These numbers suggest a startling lack of judicial review and oversight for civil forfeiture.
Once property has been forfeited, agencies can auction it off and keep up to 85 percent of the proceeds, giving them a strong financial incentive to seize. And agencies face no requirement to publicly report what they take or how they use forfeiture proceeds. IJ obtained data showing that the Florida Department of Law Enforcement collected more than $117 million in forfeiture proceeds from 2009 to 2014, though it is not clear whether those forfeitures included federal forfeiture revenue as well as money from forfeitures conducted under state law.
Meanwhile, local law-enforcement agencies responding to OPPAGA’s survey reported depositing more than $68 million from forfeitures under state law over the past five fiscal years. But only about half of agencies bothered to respond to the survey, so the true amount taken may very well be even higher.
Florida agencies have also made extensive use of a forfeiture loophole to take even more property. Under a federal program called “equitable sharing,” an agency can keep up to 80 percent of proceeds if they collaborate with a federal agency to forfeit under federal law.
Florida police and prosecutors can use equitable sharing to bypass tougher restrictions under state law. For instance, federal law sets a lower standard of proof to forfeit property than does Florida law, making equitable sharing an attractive way to take property more easily.
Between 2000 and 2013, Florida law enforcement collected over $412 million through the U.S. Department of Justice‘s equitable sharing program, averaging more than $29 million each year. In fact, only three states take greater advantage of equitable sharing than Florida. The Washington Post even found that Florida agencies had spent almost $40 million in equitable-sharing funds on salaries and overtime since 2008.
Across the political spectrum, civil forfeiture reform has united conservatives and liberals, from the Heritage Foundation and the James Madison Institute on the right to the American Civil Liberties Union on the left. Fortunately, bipartisan outrage at civil forfeiture has led to genuine reform in other states. Recently, Minnesota, Montana, Nevada and New Mexico enacted laws that require criminal convictions as a prerequisite to forfeiture. Both New Mexico and the District of Columbia now re-direct forfeiture proceeds to the general fund, eliminating the financial incentive to seize. They also took action to opt out of equitable sharing.
Florida lawmakers would be wise to follow the lead of these states. As even many in law enforcement agree, the Legislature ought to enact vigorous reporting requirements to provide greater transparency. But reform should not stop there. Florida law should — at the very least — require a criminal conviction as a prerequisite to forfeiture. No one should lose his property without being convicted of a crime.
And law enforcement should not profit from taking people’s property.