Update 7/27 at 8:29 a.m.: This story has been updated to include additional comments from Congressman Rutherford.
A rule change at the federal Justice Department could allow police officers to confiscate more people’s property if they believe it’s being used in a crime — even if they never arrest someone.
Some states have outright banned the practice known as civil-asset forfeiture, while others including Florida have established strict limits.
Attorney General Jeff Sessions is reviving what’s called the Equitable Sharing Program, which was canned by the Obama Administration. It allows local police to seize money and other property from people they suspect of felonies. With a judge’s approval, the proceeds can eventually be split between local and federal law enforcement agencies. The federal program overrides state bans and regulations on civil-asset forfeiture.
Northeast Florida Republican Congressman and former Jacksonville Sheriff John Rutherford agrees with the change. He says it’s an important crime-fighting tool officers use to hobble drug cartels and mafias.
“All we do is seize it. We don't give it to ourselves. There is a due process through the courts. A judge actually gives those forfeited proceeds to the sheriff’s office,” he said.
However, Rutherford was supportive of a limited compromise on the state’s program of forfeiture in 2015, when Sen. Aaron Bean, R-Fernandina Beach, sponsored a law mandating suspects be charged with crimes before most of their assets, excluding cash, can be seized. The law, passed last year, also requires convictions for law enforcement to keep seizures. Officers can still seize suspicious cash, but they have to keep track of it.
“I supported a compromise measure to reform Florida’s asset forfeiture law that carefully balanced the interests of public safety and privacy rights," he wrote in an emailed statement.
"I also support the Attorney General’s order reinstating DOJ’s ability to forfeit assets seized by state or local law enforcement because it is an important tool that not only prevents more crime by taking resources away from criminals but also offsets the cost of investigations to taxpayers."
The Florida Legislature’s research arm — the Office of Program Policy Analysis and Government Accountability — concluded in a 2015 report that 16 percent of state agencies, that cooperated with its study, reported seizing property without making an arrest. In a quarter of cases the property was eventually returned to the owner, while in 34 percent of cases the proceeds of property were split between the owner and law enforcement agencies. In another third of cases, law enforcement kept all property it seized.
Only half of the state’s law enforcement agencies participated in the study.
Rutherford argues the DOJ policy isn't in conflict with Florida law and that the policy "contains a number of safeguards to ensure that sufficient evidence of criminal activity exists and that these defendants have their property rights and due process rights protected under the law."
But Larry Hannan, with the Harvard Fair Punishment Project, said on WJCT’s “First Coast Connect” Thursday that civil forfeiture has garnered bipartisan scorn because law enforcement can seize assets without an arrest and that's seen as violating due process.
“Someone has the presumption of innocence in a court of law until they’re convicted. Everyone who goes before a judge and jury is innocent when a trial starts,” he said. “The challenge with this is that if you seize their property before you prove they’re guilty, suddenly their guilty until proven innocent.”
Hannan said a number of federal court cases are challenging the practice and could soon wind up at the Supreme Court.
Ryan Benk can be reached at rbenk@wjct.org, 904-358-6319 or on Twitter at @RyanMichaelBenk.
