For years, law enforcement agencies have extracted millions of dollars in cash, vehicles, and other property from Illinois residents through the little-understood practice of civil asset forfeiture. Civil asset forfeiture laws allow the government to permanently take property away from someone on the basis that the property is associated with a crime—even though the person may never have been convicted or even arrested for any offense.

These laws incentivize the police to take as much property as they can, because they are the sole beneficiaries of the financial spoils. While accurate numbers have been hard to come by, we know that $30 million or more of Illinoisans’ property is claimed by Illinois law enforcement agencies through civil asset forfeiture every year. That financial burden falls particularly hard on those least able to withstand it; according to a recent study by Lucy Parsons Labs, vehicle seizures disproportionately impact poor and minority communities on Chicago’s South and West Sides.

In the summer of 2017, after protracted negotiations, the Illinois General Assembly passed a landmark bill to make Illinois’ forfeiture laws fairer and more transparent. Under the new law:

  • The property owner no longer bears the burden of proving their innocence; instead, the burden of proving the person’s guilt will rest with the government.
  • A new, expedited process enables innocent property owners to have their cases adjudicated more quickly. The government’s burden of proof is increased from probable cause to preponderance of the evidence.
  • Gone is the requirement that property owners must pay a “cost bond” before their case can be heard by a judge.
  • Small sums of cash will no longer be subject to forfeiture, and mere possession of a miniscule amount of drugs will no longer be an adequate basis to seize property. 
  • Seizures and forfeitures must now be publicly reported, allowing the public to know how much property is forfeited, by which law enforcement agencies, and how those agencies spend the money. The Illinois State Police have until January 1, 2019 to begin publishing the data on their website.

The new law finally took effect on July 1 of this year. And earlier this month, Governor Bruce Rauner signed additional legislation making technical adjustments to the new law in order to facilitate implementation of these reforms.

While the passage of these new laws represents progress, there are reasons to be skeptical that it will be enough to deter law enforcement from engaging in policing for profit. The law still allows people to lose their property through forfeiture even if they’ve been convicted of no crime, and the scheme for allocating forfeited assets remains unchanged, meaning the same police department that seizes your money gets to keep it after the cash is forfeited. Additionally, “equitable sharing” arrangements with the federal government still provide a loophole through which Illinois law enforcement agencies can avoid complying with the safeguards provided under state law.

Reliance on aggressive forfeiture tactics by federal law enforcement agencies—and joint task forces where Illinois law enforcement agencies collaborate with the federal government—are of particular concern considering Attorney General Jeff Sessions’ enthusiastic support for the widespread use of forfeiture, and his restoration of controversial practices suspended under the Obama administration. In recent months, local media have reported on suspect seizures of large sums of cash from travelers at Chicago’s O’Hare Airport by federal agents acting in concert with local police.

Even in states that have enacted reforms more far-reaching than those adopted in Illinois, there has been fierce resistance to change. For instance, in 2015 New Mexico passed a law essentially abolishing civil asset forfeiture. Yet this year, a federal court found that Albuquerque police have continued to seize  vehicles in contravention of the state law, and in violation of residents’ constitutional rights

In another promising development, the U.S. Supreme Court recently agreed to hear a case to determine whether the forfeiture of an Indiana man’s $40,000 vehicle based on his sale of $225 worth of drugs is an excessive fine in violation of the 8th Amendment. The Court should embrace this opportunity to set reasonable limits on when the government can take and keep private property.

The ACLU will be monitoring the implementation of Illinois’ new forfeiture law to determine whether it is working as intended to rein in the practices of police and prosecutors, and to assess whether further reforms are necessary.

We need your continued help in this effort! If your cash or property been taken by the police without justification and you have a story to share, please contact us

Date

Wednesday, August 15, 2018 - 2:00pm

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Police Practices and Racial Justice Criminal Justice Reform

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Author:
Ben Ruddell

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