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Lawmakers Pumping The Brakes On Controversial Forfeiture Policy

Elvert Barnes via Flickr

Over the years, organized crime has evolved, and to keep up with it U.S. law enforcement agencies have pushed for newer and more expansive authorities to take on the challenge.  But one of those tools is raising concerns in the Florida statehouse.

The year is 1931.  Flapper dresses have given way to more conservative styles as the Great Depression marches on, but in big cities and small towns men and women still slip into speakeasies to sip on highballs and sidecars. 

It’s not going to be a very good year for one of the men responsible for those spirits.  Federal officials are going put Chicago kingpin Al Capone away for eleven years on tax evasion charges.

Fast forward to 1980.  The US is trudging out of recession, and fans of the show Dallas are still buzzing about who shot JR.  Men are wearing suits and facial hair that they’ll soon regret and will someday make their children giggle. 

And it’s not going to be a very good year for Mafia boss Frank "Funzi" Tieri.  His conviction on RICO—or racketeer influenced and corrupt organizations—charges will have him spending the last months of his life in prison. 

These cases are both examples of law enforcement agencies finding creative ways to take on organized crime—grasping the loose strings in a criminal enterprise and tying them together into a successful court case.  Another way cops attack those loose ends is a tool called civil asset forfeiture.  Retired Los Angeles Deputy Police Chief and Law Enforcement Against Prohibition board member Stephen Downing explains how it works. 

“The asset forfeiture statutes allow law enforcement officers to seize people’s property if the law enforcement officer has mere probable cause to think that that property is the fruits of, or used for, a criminal activity,” Downing says.

The practice has actually been around since Capone’s time, but after Prohibition it went into hibernation for the most part.  That is until the 1980s and the war on drugs.  Forfeiture enjoyed a resurgence as law enforcement agencies looked for any tool available to take on the challenge. 

“Really ideally it was designed to stop drug traffickers,” Sen. Aaron Bean (R-Jacksonville) says.  “If they’re using a big fancy car to transport drugs we can take that away.”

“But it’s morphed into something more,” he says.

That something more has a handful of Florida lawmakers concerned.  Once law enforcement seizes property, the burden of proof shifts: it’s on the owner to prove the asset isn’t connected to crime.  And because it’s a civil matter, Sen. Jeff Brandes (R-St. Petersburg) says that might be difficult.

“Under civil asset forfeiture law it’s a civil suit you’re not entitled to an attorney,” Brandes says, “and so often the cost of hiring an attorney and actually fighting the challenges will be greater than the cost of the asset that’s seized.”

“And if you do hire an attorney often law enforcement will come to you and try to cut a deal by giving you half the asset back,” he says.

Brandes championed reform last year but ran into a brick wall of opposition.  Remember—this is a really powerful tool for law enforcement agencies.  As Rep. Matt Caldwell (R-North Fort Meyers) explains, it allows them to take away the benefits of breaking the law.

“Civil asset forfeitures a lot of times focus on the benefit that the criminal reaps by creating these criminal conspiracies,” Caldwell says.  “They’re living the high life driving around in fast cars.”

But there’s another reason law enforcement is so protective of the procedure: money.  State and federal provisions allow the agency to keep a percentage of the seized asset’s value.  

“Well I think it’s very important,” Florida Department of Law Enforcement Chief Rick Swearingen says of civil asset forfeiture.  “As you know if you don’t get that funding through some of the other avenues then that’s got to come through either GR or tax dollars.”

He emphasizes civil asset forfeiture is tightly controlled, but a recent Office of Program Policy Analysis and Government Accountability, or OPPAGA, study highlights the need for annual reporting—current law doesn’t require agencies to report on seized assets at all. 

Moving into 2016, lawmakers are proposing a number of alterations to place greater restrictions on the practice.

Brandes is partnering with Caldwell on a bill requiring a criminal charge before seizure and a criminal conviction before an agency takes final ownership of a seized asset.  Their bill is likely to face stiff opposition. 

Meanwhile, Bean is heading into a session with a more moderate measure.  It requires agency heads—or a designated officer—to sign off on all seizures, and it institutes annual reporting in line with the OPPAGA study.  Bean says he expects the support of Florida’s sheriffs and police chiefs. 

Nick Evans came to Tallahassee to pursue a masters in communications at Florida State University. He graduated in 2014, but not before picking up an internship at WFSU. While he worked on his degree Nick moved from intern, to part-timer, to full-time reporter. Before moving to Tallahassee, Nick lived in and around the San Francisco Bay Area for 15 years. He listens to far too many podcasts and is a die-hard 49ers football fan. When Nick’s not at work he likes to cook, play music and read.