Governments in Illinois can take your property without charging you with a crime
A court decision involving the government’s seizure of more than $270,000 from two Chicagoans highlights major problems with civil asset forfeiture.
Law-enforcement officials are supposed to protect innocent people’s private property – not take it away from them.
But most states, including Illinois, allow the police to take private property they suspect was related to criminal activity, even without having to prove the owner of that property used it in a crime. This practice, known as civil asset forfeiture, has come under attack in recent years from Americans across the political spectrum.
A recent case exemplifies some problems with civil asset forfeiture: Chicago police officers, responding to a report of a home invasion, found a handgun, a digital scale and a small amount of marijuana in a bag in a room in the house. A drug dog signaled the presence of drugs in a van parked outside the house. Drugs were not found in the van, but a safe containing $271,080 in cash was. The money belonged to two brothers, who lived in the house with six other people. The government brought no criminal charges against the brothers or anyone else in the house, but it used civil asset forfeiture to seize the $271,080 in cash, contending that it was proceeds of, or had been used to facilitate, drug trafficking.
In a March 17 decision, the court found that the evidence did not clearly show that the money was substantially connected to drug trafficking. However, the court sent the case back to the trial court for trial, where a jury will decide whether the evidence shows that the money was connected to drug trafficking.
Not all courts, however, are as engaged in applying such scrutiny to the government in civil asset forfeiture cases. As the case demonstrates, civil asset forfeiture can happen even without the owner of the property – or anyone at all – being charged with a crime, let alone convicted. Therefore, legislation is required to curb the problems that arise with civil asset forfeiture.
Some states have passed laws to curb the worst kinds of civil asset forfeiture abuse. New Mexico has banned civil asset forfeiture completely, allowing the government to take private property only with a criminal conviction. Last year, Michigan raised the standard of evidence police must meet to seize assets.
However, Illinois’ protections against civil asset forfeiture abuse are sparse. In a November 2015 report of state civil asset forfeiture by the Institute for Justice, Illinois received a D- for the quality of its protections for property owners.
The standard of proof in Illinois that is required to seize property by forfeiture is the relatively low “preponderance of the evidence” standard. Someone who wants to contest a seizure in court (except for houses and land) must put down a bond of either $100 or 10 percent of the value of the property, whichever is greater. If the person challenging the forfeiture loses, they must give up the entire bond and pay the full cost of the forfeiture proceeding; but even if they win, they must relinquish the amount of the bond, meaning a completely innocent owner of property which was forfeited will never be made whole. Even worse, innocent owners bear the burden of proving that they were not involved in the criminal activity associated with the property.
Law enforcement directly receives 90 percent of seized assets if they are not challenged or a person challenging the forfeiture fails to show that he or she was not involved in the criminal activity. Thus, Illinois stacks the deck against private property owners while giving law enforcement every reason to seize property, even when the evidence that the property was part of criminal activity is weak.
Exactly how much money is Illinois taking in? The available data doesn’t distinguish between criminal and civil asset forfeiture, and Illinois does not maintain detailed, publicly available data on how much is seized and what the funds are used for. But information obtained through Freedom of Information Act requests reveals that between 2009 and 2013, Illinois law enforcement took in over $113 million worth of property.
Illinois needs reform to ensure innocent property owners are protected from losing their property, that the process is fair to all owners from whom the government seizes property and that law enforcement does not have improper incentives.
Ideally, Illinois should follow the lead of New Mexico and completely abolish civil asset forfeiture, allowing the government only to use criminal asset forfeiture. Criminal asset forfeiture occurs as part of the government’s criminal prosecution of a defendant, where the government seizes private property used or derived from a crime after convicting the owner of a crime. Criminal asset forfeiture ensures that the government only takes property from people who have actually been found guilty of a crime.
But short of completely abolishing civil asset forfeiture, Illinois could take steps to protect innocent owners of property. First, the burden of proof should be placed entirely on the government in civil asset forfeiture cases. Owners challenging forfeiture of their property should not have to prove that they were not involved in the criminal activity associated with the property; the government should have to prove that they were. Second, the government’s burden should be increased to “beyond a reasonable doubt” or at least “clear and convincing evidence.”
Finally, owners of seized property should not be required to pay any bond for the right to challenge the forfeiture of their property, nor should they be required to pay the costs of the litigation if they lose. Rather, owners challenging forfeiture should be permitted to receive attorneys’ fees and costs if they are successful in challenging the forfeiture.
If states such as Michigan and New Mexico can rein in civil asset forfeiture laws, Illinois can certainly do the same. Illinoisans should demand that members of the General Assembly take action to protect innocent people from this abusive system.