By Matt Kelly and Tyler Worthington
Asset forfeiture is a tool used by federal and local law enforcement to seize property from people they believe may have been involved in a crime. In some cases, property has been seized and not returned to the accused even if charges were not filed or dropped. Local governments and law enforcement agencies raise revenue through the sale of these assets, presenting an incentive to infringe on private property rights. In Florida, asset forfeiture revenue has risen dramatically since 2009, a worrying trend if these seizures are not connected to criminal convictions.
While criminal forfeiture requires police to obtain a criminal conviction, police can use civil forfeiture to seize and sell property without meeting the same high standards of evidence. Criminal courts require proof “beyond a reasonable doubt.” Civil courts, in contrast, allow, agencies to file claims for forfeiture based on a “preponderance of evidence”. Though originally meant to thwart organized crime, civil forfeiture is today used with greater frequency and for a far wider variety of cases.
The Institute for Justice’s (IJ) Report “Policing for Profit” details the tremendous growth in the use of asset forfeiture by federal and state agencies. In 1986 the Department of Justice took in $93.7 million from federal forfeitures. This number grew to $4.5 billion in 2014. That’s more money than was stolen by burglars in 2014, and 87% came from civil forfeitures. The IJ report also highlights a lack of transparency across the country. Federal and state agencies using asset forfeiture often don’t keep track of revenues received or spent.
Florida received a grade of D+ in IJ’s report card. Florida first allowed civil asset forfeiture in 1974. The “Florida Contraband Forfeiture Act”, states, “All rights to, interest in, and title to contraband articles used in violation of…[state and federal law]…shall immediately vest in the seizing law enforcement agency upon seizure.” While the law states that revenues gained through sale of these items may only be used for “supplemental funding for authorized purposes,” a 2015 Florida legislative policy staff (OPPAGA) determined that tracking these funds was not possible because the state lacks consistent reporting requirements. The Institute for Justice estimates that Florida seized roughly $117 million between 2009-2014 from civil forfeitures, although, as OPPAGA made clear, exact records are impossible to obtain.
To gauge the magnitude of civil asset forfeiture, OPPAGA conducted a survey of 152 law enforcement agencies in Florida. The office estimated that between 2010 and 2014 almost 19,000 seizures were made. Twenty-five percent of seized assets were eventually returned to their owners. Vehicles and currency were the most commonly seized items. Real property was rarely seized since it requires a higher burden of proof for agencies to confiscate. Sixteen percent of responding agencies reported making seizures without making any arrests.
In response, the Florida Sheriffs Association asserts that the state’s asset forfeiture laws are appropriate and points out that Florida is one of only six states that uses a “clear and convincing” standard of proof for civil forfeitures, a higher standard than “preponderance of evidence” but lower than “beyond a reasonable doubt.” However, the increase in revenue from asset seizures since 2009 (see Figure 1), a period when crime was already decreasing in absolute terms, suggests that even this standard may not be strict enough. A bill recently filed by Senator Jeff Brandes (R-Pinellas) would raise the standard to “beyond a reasonable doubt” and also establish reporting requirements.
Figure 1 also shows the revenue reported for the category “Assets Seized by Law Enforcement” found in city and county budgets. This measure underestimates revenue gained through seizure since much of this revenue may be categorized as “miscellaneous” or “other fines and forfeits.” Still, this revenue category is the best barometer available in the absence of statewide reporting requirements. Figure 2 shows a ranking of local governments by revenue from seizures. The City of Sunrise leads the pack, seizing over $4.3 million between 2009 and 2014. Pinellas County, the city of Orlando, and Broward County follow with total seizures of around $1.5 million each.
The increasingly common seizure of property by federal, state, and local law enforcement is a worrying development. Protecting property rights is essential to economic growth, especially for cash businesses like restaurants, bars, and small boutique shops. Although Florida’s stated policy is that “officers adhere to federal and state constitutional limitations regarding an individual’s right to be free from unreasonable searches and seizures,” the explosion in revenues from civil forfeiture and lack of transparency suggest that law enforcement agencies have an incentive to seize assets with little external scrutiny. Changes are needed to ensure the protection of property rights and the civil liberties of Florida citizens.