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. 

Testimony of Heidi Dalenberg (B.H. v. Walker Class Counsel and Partner, Riley, Safer Holmes & Cancilla) Before the Illinois Senate House Human Services Committee

August 14, 2018

To Chair Morris and members of the Senate Human Services Committee, 

As legal counsel for the children under the care of the Illinois Department of Children and Family Services (DCFS), the ACLU of Illinois appreciates the opportunity to share this brief statement with you as you convene this hearing about children and youth in DCFS’s care who are hospitalized and held beyond medical necessity. The ACLU (as lead counsel), along with pro bono co-counsel from Schiff Hardin and Riley, Safer, Holmes & Cancila, represents Plaintiffs in the long-pending class action lawsuit now called B.H. v. Walker.

Because this committee is familiar with the B.H. litigation, just a brief summary of our recent work immediately relevant to today’s subject matter is needed here. In 2014, we advised the Department of reports about severe shortages of mental health services and substandard conditions at various residential treatment centers housing our clients. With hundreds of youth languishing in shelters, detention centers, juvenile prisons, psychiatric hospitals, and other settings waiting for the services and placements they needed, we asked the Court to intervene to address the Department’s violation of the B.H. Consent Decree.  

The Court appointed a panel of experts to investigate and prepare recommendations for necessary reforms. The panel ultimately issued a report finding systemic problems within the Department, including the lack of adequate home- and community-based mental health resources.  That lack of resources was resulting in long waits for less restrictive placements for children languishing in psychiatric hospitals, intensive residential treatment centers, and group home settings. The Court adopted the panel’s recommendations for change with slight modification, and the Department then submitted an Implementation Plan to the Court in February 2016 that identified specific initiatives for placement and service development. In our view, the Department’s progress to date under those Plan initiatives has been ineffective and inadequate. Few of the initiatives have been successful.  

Tragically, the youth who remain hospitalized beyond medical necessity are the living proof that the Department continues to lack the capacity it needs. The dearth of community-based services and resources for youth with significant mental and behavioral health needs continues to be at crisis levels. The most recent reports we have received from the Department confirm that we are on a pace, yet again, to end this calendar year with literally hundreds of children having been hospitalized beyond medical necessity. Nearly 150 youth already have remained hospitalized without need since January of 2018. Thirty-five of those youth were unnecessarily hospitalized for 50 days or longer. Five of those youth have been unnecessarily hospitalized for more than 100 days.  

We know that hospitalization beyond medical necessity is not simply an expensive, but benign, phenomenon. Youth suffer while this goes on – they are damaged. So, what do we do now? Frankly, the Department in our view still does not have a coherent strategy for developing the capacity it needs. And, to date, the Department has been loathe to analyze why these initiatives failed, to develop new strategies based on what it has learned, and then to commit to specific actions it will take to meet the service and resource needs of high-end youth in care.

At present, the Department does have a pilot program focusing on delivery of intensive, post-hospitalization services to youth who have been hospitalized beyond medical necessity and then are returned to community-based placements (rather than residential treatment facilities). There are some early signs that this program may have positive outcomes for these youth.  

From our perspective, the Department should also be focusing its efforts on supporting children with significant needs in a more comprehensive and realistic way. Children who end up hospitalized beyond medical necessity are children for whom crises were to be expected, and may well require hospitalization in the future. We believe the Department should be building a system that recognizes that reality, provides individualized clinical services to youth in their community-based placement, identifies in advance where the youth will be cared for if hospitalization becomes necessary, and contemplates return to the youth’s prior placement when a crisis passes. The court-appointed experts in B.H. already have recommended that the Department move in that direction by, for example, building Intensive Placement Stabilization (“IPS”) around specialized foster homes. IPS provides intensive support to high-risk children in foster care to stabilize placements and prevent entry into higher levels of care.

Specifically, we are urging the Department to build a robust and meaningful crisis response system that enables youth’s providers to work with particular hospitals to help prevent disruptions in placement. The Department should be thinking about where a child’s clinical home will be not if, but whenintensive services are needed and build those into its array of services at a sufficient capacity. To do that, however, the Department in our view must focus on an additional task -- rebuilding good relationships with psychiatric facilities within the state, many of which have deteriorated, either due to the State’s budget crisis, the Department’s inability to move youth out when they are ready, or both.

It also is clear, in our view, that the Department must do far more to identify what resources it needs to develop throughout the State. We have asked repeatedly for the Department to prepare and provide such an analysis, but if that has been done, it certainly has not been shared with us. Does the Department know how many times youth service plans called for a service that they did not receive? Have those unmet needs been identified and tracked? Was the Department unable to provide what was needed because it did not exist? Was transportation an issue? Which children are on waitlists, where are they, and what are they waiting for? We cannot conceive of a way in which the Department can make meaningful progress toward developing what youth in care need, or securing a budget sufficient to allow development of those resources, if it does not know the answers to these questions.  

Finally, it is our view that the Department’s success depends on genuine collaboration between and across state agencies. That need is especially acute as between DCFS and the Department of Healthcare and Families Services (HFS), given their shared ownership of responsibility for youth who rely on the State for their care. A child’s care – particularly in an acute behavioral crisis—should not be impeded or delayed because one agency thinks the other is responsible for finding services, developing services, or paying for them.  Clear definition of authority and responsibility for youth in care must be established before, not after, the impending and anticipated move to the Illinicare MCO.