UPDATE 9/19/17: House Bill 303 was signed into law. Read more here.
Did you know that your property can be permanently taken away by the government even if you are never charged with a crime? Each year in Illinois, $40 million or more in cash, cars, and even homes is seized through something called civil asset forfeiture. Police departments are incentivized to seize as much as they can, because they receive all the proceeds from civil asset forfeiture, yet there is little transparency around this practice.
Civil asset forfeiture is the permanent confiscation of private property by law enforcement agencies. Under current Illinois and federal law, law enforcement agencies can take cash, land, vehicles and other property they suspect is involved in illegal activity. But those laws do not require that someone is convicted – or even charged – with a crime in order to lose their property permanently. Once a person’s property is seized, the deck is stacked against them ever getting it back. With no right to have a lawyer appointed, property owners must prevail against the government in a legal proceeding, where they are essentially required to prove their own innocence.
A new measure championed by the ACLU aims to reform Illinois’ broken civil asset forfeiture system by putting in place measures to protect Illinois residents from serious economic harm. The bill will ensure that:
1. The property owner will no longer bear the burden of proving their innocence; instead, the burden of proving the person’s guilt will rest with the government.
2. There will be an expedited process for innocent property owners to have their cases adjudicated more quickly.
3. The government’s burden of proof is increased from probable cause to preponderance of the evidence. The government must meet a higher burden--clear and convincing evidence--if the person was found not guilty at trial in a related criminal case, or if the government lost the criminal case at the preliminary stage.
4. The government will be required to do more to ensure that the property owner receives notice of the forfeiture proceedings and understands the steps they must take to argue for the return of their property.
5. The requirement that property owners must pay a “cost bond” equal to 10% of the value of the seized property before their case can be heard by a judge is repealed.
6. Small sums of cash will no longer be subject to forfeiture.
7. Mere possession of a miniscule amount of drugs will no longer serve as a legal basis for forfeiture.
8. The new law provides for collection of data around seizures of property by police departments and forfeitures by prosecutors, to be publicly reported on the Illinois State Police website. This tool will enable taxpayers and lawmakers to find out how much property is being forfeited and how law enforcement agencies spend the money.
The bill has been signed into law and takes effect on July 1, 2018.