Nebraska has just become the latest state to end civil asset forfeiture, the practice by which law enforcement can take private property from people suspected of wrongdoing – even if they haven’t been convicted of a crime. Nebraska Gov. Pete Ricketts signed a comprehensivereform bill, which had been approved by an overwhelming majority of Nebraska’s legislature April 19.
The new law requires that Nebraska law enforcement obtain a criminal conviction before seizing private assets. It also requires Nebraska’s auditor of public reports to issue an annual report detailing the seizure, including information on when and where the seizure took place, the type of property that was taken, the crime the owner was charged with and the value of the property.
Illinois would do well to follow Nebraska’s example – and that of other states, includingMichigan, Minnesota and New Mexico – and reform its asset forfeiture laws, too.
Right now, Illinois allows police to take and permanently keep private property they suspect was somehow related to criminal activity, but without having to prove the owner of that property used it in a crime, or even charging the property owner with any criminal offense. It then falls to the owner – if he or she has the financial resources – to challenge the seizure in court and prove the property wasn’t used in illegal activity.
CRIMINAL PROCEDURE Illinois Law
(725 ILCS 150/) Drug Asset Forfeiture Procedure Act.
(725 ILCS 150/1)(from Ch. 56 1/2, par. 1671) Sec. 1. Short Title. This Act shall be known and may be cited as the Drug Asset Forfeiture Procedure Act. (Source: P.A. 86-1382.)
(725 ILCS 150/2)(from Ch. 56 1/2, par. 1672) Sec. 2. Legislative Declaration. The General Assembly finds that the civil forfeiture of property which is used or intended to be used in, is attributable to or facilitates the manufacture, sale, transportation, distribution, possession or use of substances in certain violations of the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act will have a significant beneficial effect in deterring the rising incidence of the abuse and trafficking of such substances within this State. While forfeiture may secure for State and local units of government some resources for deterring drug abuse and drug trafficking, forfeiture is not intended to be an alternative means of funding the administration of criminal justice. The General Assembly further finds that the federal narcotics civil forfeiture statute upon which this Act is based has been very successful in deterring the use and distribution of controlled substances within this State and throughout the country. It is therefore the intent of the General Assembly that the forfeiture provisions of this Act be construed in light of the federal forfeiture provisions contained in 21 U.S.C. 881 as interpreted by the federal courts, except to the extent that the provisions of this Act expressly differ therefrom. (Source: P.A. 94-556, eff. 9-11-05.)
(725 ILCS 150/3)(from Ch. 56 1/2, par. 1673) Sec. 3. Applicability. The provisions of this Act are applicable to all property forfeitable under the Illinois Controlled Substances Act, the Cannabis Control Act, the Illinois Food, Drug and Cosmetic Act, or the Methamphetamine Control and Community Protection Act. (Source: P.A. 96-573, eff. 8-18-09.)
(725 ILCS 150/3.5) Sec. 3.5. Preliminary Review. (a) Within 14 days of the seizure, the State shall seek a preliminary determination from the circuit court as to whether there is probable cause that the property may be subject to forfeiture. (b) The rules of evidence shall not apply to any proceeding conducted under this Section. (c) The court may conduct the review under subsection (a) simultaneously with a proceeding pursuant to Section 109-1 of the Code of Criminal Procedure of 1963 for a related criminal offense if a prosecution is commenced by information or complaint. (d) The court may accept a finding of probable cause at a preliminary hearing following the filing of an information or complaint charging a related criminal offense or following the return of indictment by a grand jury charging the related offense as sufficient evidence of probable cause as required under subsection (a). (e) Upon making a finding of probable cause as required under this Section, the circuit court shall order the property subject to the provisions of the applicable forfeiture Act held until the conclusion of any forfeiture proceeding. For seizures of conveyances, within 7 days of a finding of probable cause under subsection (a), the registered owner or other claimant may file a motion in writing supported by sworn affidavits claiming that denial of the use of the conveyance during the pendency of the forfeiture proceedings creates a substantial hardship. The court shall consider the following factors in determining whether a substantial hardship has been proven: (1) the nature of the claimed hardship; (2) the availability of public transportation or
other available means of transportation; and
(3) any available alternatives to alleviate the
hardship other than the return of the seized conveyance.
If the court determines that a substantial hardship has been proven, the court shall then balance the nature of the hardship against the State's interest in safeguarding the conveyance. If the court determines that the hardship outweighs the State's interest in safeguarding the conveyance, the court may temporarily release the conveyance to the registered owner or the registered owner's authorized designee, or both, until the conclusion of the forfeiture proceedings or for such shorter period as ordered by the court provided that the person to whom the conveyance is released provides proof of insurance and a valid driver's license and all State and local registrations for operation of the conveyance are current. The court shall place conditions on the conveyance limiting its use to the stated hardship and restricting the conveyance's use to only those individuals authorized to use the conveyance by the registered owner. The court shall revoke the order releasing the conveyance and order that the conveyance be reseized by law enforcement if the conditions of release are violated or if the conveyance is used in the commission of any offense identified in subsection (a) of Section 6-205 of the Illinois Vehicle Code. If the court orders the release of the conveyance during the pendency of the forfeiture proceedings, the registered owner or his or her authorized designee shall post a cash security with the Clerk of the Court as ordered by the court. The court shall consider the following factors in determining the amount of the cash security: (A) the full market value of the conveyance; (B) the nature of the hardship; (C) the extent and length of the usage of the
conveyance; and
(D) such other conditions as the court deems
necessary to safeguard the conveyance.
If the conveyance is released, the court shall order that the registered owner or his or her designee safeguard the conveyance, not remove the conveyance from the jurisdiction, not conceal, destroy, or otherwise dispose of the conveyance, not encumber the conveyance, and not diminish the value of the conveyance in any way. The court shall also make a determination of the full market value of the conveyance prior to it being released based on a source or sources defined in 50 Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). If the conveyance subject to forfeiture is released under this Section and is subsequently forfeited, the person to whom the conveyance was released shall return the conveyance to the law enforcement agency that seized the conveyance within 7 days from the date of the declaration of forfeiture or order of forfeiture. If the conveyance is not returned within 7 days, the cash security shall be forfeited in the same manner as the conveyance subject to forfeiture. If the cash security was less than the full market value, a judgment shall be entered against the parties to whom the conveyance was released and the registered owner, jointly and severally, for the difference between the full market value and the amount of the cash security. If the conveyance is returned in a condition other than the condition in which it was released, the cash security shall be returned to the surety who posted the security minus the amount of the diminished value, and that amount shall be forfeited in the same manner as the conveyance subject to forfeiture. Additionally, the court may enter an order allowing any law enforcement agency in the State of Illinois to seize the conveyance wherever it may be found in the State to satisfy the judgment if the cash security was less than the full market value of the conveyance. (Source: P.A. 97-544, eff. 1-1-12; 97-680, eff. 3-16-12.)
(725 ILCS 150/4)(from Ch. 56 1/2, par. 1674) Sec. 4. Notice to Owner or Interest Holder. (A) Whenever notice of pending forfeiture or service of an in rem complaint is required under the provisions of this Act, such notice or service shall be given as follows: (1) If the owner's or interest holder's name and
current address are known, then by either personal service or mailing a copy of the notice by certified mail, return receipt requested, to that address. For purposes of notice under this Section, if a person has been arrested for the conduct giving rise to the forfeiture, then the address provided to the arresting agency at the time of arrest shall be deemed to be that person's known address. Provided, however, if an owner or interest holder's address changes prior to the effective date of the notice of pending forfeiture, the owner or interest holder shall promptly notify the seizing agency of the change in address or, if the owner or interest holder's address changes subsequent to the effective date of the notice of pending forfeiture, the owner or interest holder shall promptly notify the State's Attorney of the change in address; or
(2) If the property seized is a conveyance, to the
address reflected in the office of the agency or official in which title or interest to the conveyance is required by law to be recorded, then by mailing a copy of the notice by certified mail, return receipt requested, to that address; or
(3) If the owner's or interest holder's address is
not known, and is not on record as provided in paragraph (2), then by publication for 3 successive weeks in a newspaper of general circulation in the county in which the seizure occurred.
(B) Notice served under this Act is effective upon personal service, the last date of publication, or the mailing of written notice, whichever is earlier. (Source: P.A. 86-1382; 87-614.)
(725 ILCS 150/5)(from Ch. 56 1/2, par. 1675) Sec. 5. Notice to State's Attorney. The law enforcement agency seizing property for forfeiture under the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act shall, within 52 days of seizure, notify the State's Attorney for the county in which an act or omission giving rise to the forfeiture occurred or in which the property was seized of the seizure of the property and the facts and circumstances giving rise to the seizure and shall provide the State's Attorney with the inventory of the property and its estimated value. When the property seized for forfeiture is a vehicle, the law enforcement agency seizing the property shall immediately notify the Secretary of State that forfeiture proceedings are pending regarding such vehicle. (Source: P.A. 94-556, eff. 9-11-05.)
(725 ILCS 150/6)(from Ch. 56 1/2, par. 1676) Sec. 6. Non-Judicial Forfeiture. If non-real property that exceeds $150,000 in value excluding the value of any conveyance, or if real property is seized under the provisions of the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act, the State's Attorney shall institute judicial in rem forfeiture proceedings as described in Section 9 of this Act within 45 days from receipt of notice of seizure from the seizing agency under Section 5 of this Act. However, if non-real property that does not exceed $150,000 in value excluding the value of any conveyance is seized, the following procedure shall be used: (A) If, after review of the facts surrounding the seizure, the State's Attorney is of the opinion that the seized property is subject to forfeiture, then within 45 days of the receipt of notice of seizure from the seizing agency, the State's Attorney shall cause notice of pending forfeiture to be given to the owner of the property and all known interest holders of the property in accordance with Section 4 of this Act. (B) The notice of pending forfeiture must include a description of the property, the estimated value of the property, the date and place of seizure, the conduct giving rise to forfeiture or the violation of law alleged, and a summary of procedures and procedural rights applicable to the forfeiture action. (C) (1) Any person claiming an interest in property which
is the subject of notice under subsection (A) of Section 6 of this Act, may, within 45 days after the effective date of notice as described in Section 4 of this Act, file a verified claim with the State's Attorney expressing his or her interest in the property. The claim must set forth:
(i) the caption of the proceedings as set forth
on the notice of pending forfeiture and the name of the claimant;
(ii) the address at which the claimant will
accept mail;
(iii) the nature and extent of the claimant's
interest in the property;
(iv) the date, identity of the transferor, and
circumstances of the claimant's acquisition of the interest in the property;
(v) the name and address of all other persons
known to have an interest in the property;
(vi) the specific provision of law relied on in
asserting the property is not subject to forfeiture;
(vii) all essential facts supporting each
assertion; and
(viii) the relief sought. (2) If a claimant files the claim and deposits with
the State's Attorney a cost bond, in the form of a cashier's check payable to the clerk of the court, in the sum of 10 percent of the reasonable value of the property as alleged by the State's Attorney or the sum of $100, whichever is greater, upon condition that, in the case of forfeiture, the claimant must pay all costs and expenses of forfeiture proceedings, then the State's Attorney shall institute judicial in rem forfeiture proceedings and deposit the cost bond with the clerk of the court as described in Section 9 of this Act within 45 days after receipt of the claim and cost bond. In lieu of a cost bond, a person claiming interest in the seized property may file, under penalty of perjury, an indigency affidavit.
(3) If none of the seized property is forfeited in
the judicial in rem proceeding, the clerk of the court shall return to the claimant, unless the court orders otherwise, 90% of the sum which has been deposited and shall retain as costs 10% of the money deposited. If any of the seized property is forfeited under the judicial forfeiture proceeding, the clerk of the court shall transfer 90% of the sum which has been deposited to the State's Attorney prosecuting the civil forfeiture to be applied to the costs of prosecution and the clerk shall retain as costs 10% of the sum deposited.
(D) If no claim is filed or bond given within the 45 day period as described in subsection (C) of Section 6 of this Act, the State's Attorney shall declare the property forfeited and shall promptly notify the owner and all known interest holders of the property and the Director of the Illinois Department of State Police of the declaration of forfeiture and the Director shall dispose of the property in accordance with law. (Source: P.A. 97-544, eff. 1-1-12.)
(725 ILCS 150/7)(from Ch. 56 1/2, par. 1677) Sec. 7. Presumptions. The following situations shall give rise to a presumption that the property described therein was furnished or intended to be furnished in exchange for a substance in violation of the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act, or is the proceeds of such an exchange, and therefore forfeitable under this Act, such presumptions being rebuttable by a preponderance of the evidence: (1) All moneys, coin, or currency found in close proximity to forfeitable substances, to forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the importation, manufacture or distribution of substances; (2) All property acquired or caused to be acquired by a person either between the dates of occurrence of two or more acts in felony violationof the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act, or an act committed in another state, territory or country which would be punishable as a felony under the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act, committed by that person within 5 years of each other, or all property acquired by such person within a reasonable amount of time after the commission of such acts if: (a) At least one of the above acts was committed
after the effective date of this Act; and
(b) At least one of the acts is or was punishable as
a Class X, Class 1, or Class 2 felony; and
(c) There was no likely source for such property
other than a violation of the above Acts.
(Source: P.A. 94-556, eff. 9-11-05.)
(725 ILCS 150/8)(from Ch. 56 1/2, par. 1678) Sec. 8. Exemptions from forfeiture. A property interest is exempt from forfeiture under this Section if its owner or interest holder establishes by a preponderance of evidence that the owner or interest holder: (A)(i) in the case of personal property, is not legally accountable for the conduct giving rise to the forfeiture, did not acquiesce in it, and did not know and could not reasonably have known of the conduct or that the conduct was likely to occur, or (ii) in the case of real property, is not legally accountable for the conduct giving rise to the forfeiture, or did not solicit, conspire, or attempt to commit the conduct giving rise to the forfeiture; and (B) had not acquired and did not stand to acquire substantial proceeds from the conduct giving rise to its forfeiture other than as an interest holder in an arms length commercial transaction; and (C) with respect to conveyances, did not hold the property jointly or in common with a person whose conduct gave rise to the forfeiture; and (D) does not hold the property for the benefit of or as nominee for any person whose conduct gave rise to its forfeiture, and, if the owner or interest holder acquired the interest through any such person, the owner or interest holder acquired it as a bona fide purchaser for value without knowingly taking part in the conduct giving rise to the forfeiture; and (E) that the owner or interest holder acquired the interest: (i) before the commencement of the conduct giving rise to its forfeiture and the person whose conduct gave rise to its forfeiture did not have the authority to convey the interest to a bona fide purchaser for value at the time of the conduct; or (ii) after the commencement of the conduct giving rise to its forfeiture, and the owner or interest holder acquired the interest as a mortgagee, secured creditor, lienholder, or bona fide purchaser for value without knowledge of the conduct which gave rise to the forfeiture; and (a) in the case of personal property, without knowledge of the seizure of the property for forfeiture; or (b) in the case of real estate, before the filing in the office of the Recorder of Deeds of the county in which the real estate is located of a notice of seizure for forfeiture or a lis pendens notice. (Source: P.A. 86-1382.)
(725 ILCS 150/9)(from Ch. 56 1/2, par. 1679) Sec. 9. Judicial in rem procedures. If property seized under the provisions of the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act is non-real property that exceeds $20,000 in value excluding the value of any conveyance, or is real property, or a claimant has filed a claim and a cost bond under subsection (C) of Section 6 of this Act, the following judicial in rem procedures shall apply: (A) If, after a review of the facts surrounding the seizure, the State's Attorney is of the opinion that the seized property is subject to forfeiture, then within 45 days of the receipt of notice of seizure by the seizing agency or the filing of the claim and cost bond, whichever is later, the State's Attorney shall institute judicial forfeiture proceedings by filing a verified complaint for forfeiture and, if the claimant has filed a claim and cost bond, by depositing the cost bond with the clerk of the court. When authorized by law, a forfeiture must be ordered by a court on an action in rem brought by a State's Attorney under a verified complaint for forfeiture. (B) During the probable cause portion of the judicial in rem proceeding wherein the State presents its case-in-chief, the court must receive and consider, among other things, all relevant hearsay evidence and information. The laws of evidence relating to civil actions shall apply to all other portions of the judicial in rem proceeding. (C) Only an owner of or interest holder in the property may file an answer asserting a claim against the property in the action in rem. For purposes of this Section, the owner or interest holder shall be referred to as claimant. (D) The answer must be signed by the owner or interest holder under penalty of perjury and must set forth: (i) the caption of the proceedings as set forth on
the notice of pending forfeiture and the name of the claimant;
(ii) the address at which the claimant will accept
mail;
(iii) the nature and extent of the claimant's
interest in the property;
(iv) the date, identity of transferor, and
circumstances of the claimant's acquisition of the interest in the property;
(v) the name and address of all other persons known
to have an interest in the property;
(vi) the specific provisions of Section 8 of this Act
relied on in asserting it is not subject to forfeiture;
(vii) all essential facts supporting each assertion;
and
(viii) the precise relief sought. (E) The answer must be filed with the court within 45 days after service of the civil in rem complaint. (F) The hearing must be held within 60 days after filing of the answer unless continued for good cause. (G) The State shall show the existence of probable cause for forfeiture of the property. If the State shows probable cause, the claimant has the burden of showing by a preponderance of the evidence that the claimant's interest in the property is not subject to forfeiture. (H) If the State does not show existence of probable cause or a claimant has established by a preponderance of evidence that the claimant has an interest that is exempt under Section 8 of this Act, the court shall order the interest in the property returned or conveyed to the claimant and shall order all other property forfeited to the State. If the State does show existence of probable cause and the claimant does not establish by a preponderance of evidence that the claimant has an interest that is exempt under Section 8 of this Act, the court shall order all property forfeited to the State. (I) A defendant convicted in any criminal proceeding is precluded from later denying the essential allegations of the criminal offense of which the defendant was convicted in any proceeding under this Act regardless of the pendency of an appeal from that conviction. However, evidence of the pendency of an appeal is admissible. (J) An acquittal or dismissal in a criminal proceeding shall not preclude civil proceedings under this Act; however, for good cause shown, on a motion by the State's Attorney, the court may stay civil forfeiture proceedings during the criminal trial for a related criminal indictment or information alleging a violation of the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act. Such a stay shall not be available pending an appeal. Property subject to forfeiture under the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act shall not be subject to return or release by a court exercising jurisdiction over a criminal case involving the seizure of such property unless such return or release is consented to by the State's Attorney. (K) All property declared forfeited under this Act vests in this State on the commission of the conduct giving rise to forfeiture together with the proceeds of the property after that time. Any such property or proceeds subsequently transferred to any person remain subject to forfeiture and thereafter shall be ordered forfeited unless the transferee claims and establishes in a hearing under the provisions of this Act that the transferee's interest is exempt under Section 8 of this Act. (L) A civil action under this Act must be commenced within 5 years after the last conduct giving rise to forfeiture became known or should have become known or 5 years after the forfeitable property is discovered, whichever is later, excluding any time during which either the property or claimant is out of the State or in confinement or during which criminal proceedings relating to the same conduct are in progress. (Source: P.A. 94-556, eff. 9-11-05.)
(725 ILCS 150/10)(from Ch. 56 1/2, par. 1680) Sec. 10. Stay of time periods. If property is seized for evidence and for forfeiture, the time periods for instituting judicial and non-judicial forfeiture proceedings shall not begin until the property is no longer necessary for evidence. (Source: P.A. 86-1382.)
(725 ILCS 150/11)(from Ch. 56 1/2, par. 1681) Sec. 11. Settlement of Claims. Notwithstanding other provisions of this Act, the State's Attorney and a claimant of seized property may enter into an agreed-upon settlement concerning the seized property in such an amount and upon such terms as are set out in writing in a settlement agreement. (Source: P.A. 86-1382.)
(725 ILCS 150/12)(from Ch. 56 1/2, par. 1682) Sec. 12. Nothing in this Act shall apply to property which constitutes reasonable bona fide attorney's fees paid to an attorney for services rendered or to be rendered in the forfeiture proceeding or criminal proceeding relating directly thereto where such property was paid before its seizure, before the issuance of any seizure warrant or court order prohibiting transfer of the property and where the attorney, at the time he or she received the property did not know that it was property subject to forfeiture under this Act. (Source: P.A. 86-1382.)
(725 ILCS 150/13)(from Ch. 56 1/2, par. 1683) Sec. 13. Construction. It shall be the intent of the General Assembly that the forfeiture provisions of this Act be liberally construed so as to effect their remedial purpose. The forfeiture of property and other remedies hereunder shall be considered to be in addition, and not exclusive of any sentence or other remedy provided by law. (Source: P.A. 86-1382.)
(725 ILCS 150/14)(from Ch. 56 1/2, par. 1684) Sec. 14. Judicial Review. If property has been declared forfeited under Section 6 of this Act, any person who has an interest in the property declared forfeited may, within 30 days of the effective date of the notice of the declaration of forfeiture, file a claim and cost bond as described in subsection (C) of Section 6 of this Act. If a claim and cost bond is filed under this Section, then the procedures described in Section 9 of this Act shall apply. (Source: P.A. 87-614.)
https://www.youtube.com/watch?v=hPeED78xOZs
The process for contesting these seizures provides very few protections for property owners. The standard of proof in Illinois required to seize property by forfeiture is the relatively low “preponderance of the evidence” standard. Someone contesting 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, he or she must give up the entire bond and pay the full cost of the forfeiture proceeding; but even if the person wins, he or she must relinquish the amount of the bond, meaning a completely innocent owner of property that was forfeited will never be made whole. Even worse, innocent owners bear the burden of proving they were not involved in the criminal activity associated with the property.
For these reasons, Illinois received a D- for the quality of its protections for property owners by the Institute for Justice.
Exactly how much money is Illinois taking in through civil asset forfeiture? 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 how the funds are spent. 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 seized over 45,000 pieces of personal property during this period.
But Illinois also collects even more forfeited funds through equitable sharing programs with the federal government, where local law enforcement collaborates with the federal government on a seizure and keeps part of the proceeds. Illinois took in over $186 millionfrom the Department of Justice’s equitable sharing program between 2000 and 2013, and another $36 million from the Treasury Department.
Illinois needs to rein in the abuses inherent in civil asset forfeiture. Mandating that law enforcement publicly report on how it acquires and uses forfeited funds would be a step forward, but it is not enough. Law enforcement should not be able to take any property without a conviction or admission of guilt – which means ending civil asset forfeiture altogether.
Property rights are too important to allow the government to routinely violate them with little oversight or accountability. Illinoisans should follow Nebraska’s lead, and demand the General Assembly put a stop to it.
