The Goldwater Institute today filed a brief in the Florida Court of Appeals challenging the constitutionality of an agreement that pays a private lawyer a contingency fee to bring asset-forfeiture lawsuits—an arrangement that violates basic principles of due process and perverts the justice system into a for-profit enterprise.
In our legal system, prosecutors are supposed to work for the people, not to enrich themselves. But officials in Miami-Dade County have twisted the system into one that enriches lawyers who work for themselves instead. It’s a practice many other states have already outlawed—and it’s time that Florida did the same.
Asset forfeiture is a practice that allows the government to seize private property without proving—or even claiming—that the owner committed a crime by asserting that the property itself was involved in a crime. The government can then confiscate the property and force the owner to sue to get it back—a costly, time-consuming process that also requires the owner to waive basic constitutional rights. Not only is that an abusive practice, but it also enables the government to enrich itself without democratic oversight. That’s because police and prosecutors can keep what they confiscate—and thus fund their operations without tax dollars, and thus without the voter-approval that goes with taxation.
That’s bad enough, but the Miami-Date County scheme is even worse. There, the sheriff arranged with a private attorney to bring forfeiture cases and pocket a substantial percentage of the confiscated property. That creates an incentive to file cases, not against the worst legal offenders, but against those who have the deepest pockets. And that’s just what’s happened: the private attorney has brought a massive, multi-million-dollar forfeiture proceeding against businesses that sell cellphones, on the theory that drug dealers use cellphones and therefore the businesses selling them are involved in criminal activity. Since the attorney isn’t required to actually prove anyone guilty of a crime, the result is to seize property without due process of law…and for private profit.
Many other states have outlawed practices like this. Even in Florida, courts have declared it unconstitutional for police to pay informants a contingency fee based on convictions. But they’ve never ruled on the constitutionality of contingency fees in forfeiture cases.
In the brief we filed today—thanks to Eric Yesner of GrayRobinson, P.A. a member of Goldwater’s American Freedom Network of pro-bono, freedom-fighting attorneys—we explain why such arrangements pervert the system and violate due process of law. Prosecutors are supposed to pursue justice, seeking what’s good for the public—as opposed to private attorneys whose main goal is to win for their clients. By confusing the two, the Miami arrangement creates an incentive, not to pursue justice or go after wrongdoers, but to maximize financial income for the state and for the attorney himself.
Asset forfeiture is an abusive and absurd practice that undermines respect for the law and transforms those who are supposed to be protectors into predators.
You can read our brief here, and learn more about the Goldwater Institute’s efforts to rein in these abuses here. You can learn more about joining Goldwater’s American Freedom Network here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.
