Research & Commentary: Illinois Needs to Reform Its Civil Asset Forfeiture Laws

Published July 13, 2016

Analysts at the nonpartisan Institute for Justice (IJ) have given the State of Illinois’ civil asset forfeiture laws a grade of D-, one of the lowest grades in the country. Civil asset forfeiture, also known as civil judicial forfeiture, is a controversial legal process through which law enforcement agencies take personal assets from individuals or groups merely suspected of a crime or illegal activity. Three states have essentially abolished the practice of asset forfeiture, including North Carolina, Nebraska, and New Mexico, and more than a dozen other states have made significant forfeiture reforms.

The standard of proof required for seizure differs from state to state. In Illinois, the government is typically required to demonstrate, by a preponderance of the evidence, the property to be seized was related to a crime. Where Illinois’ forfeiture laws truly fail property owners are in their forfeiture procedures. According to the Chicago Sun-Times, the authors from IJ argue Illinois has a “low threshold for permitting forfeitures, has weak protections for innocent third-party property owners and allows an excessive share of forfeiture proceeds to go to law enforcement, incentivizing yet more seizures.”

According the IJ, Illinois, unlike any other state, requires property owners to a pay bond worth $100 or 10 percent of the value of the property, whichever is greater, for the mere opportunity to challenge a seizure in court. The only exception to this bond is in cases where real property is seized, such as a house or land, worth more than $150,000. If a challenger loses the case, they forfeit their entire bond and pay full court costs. Even if a challenger wins his or her case, the challenger still loses 10 percent of the bond.

Proponents of forfeiture argue it allows law enforcement agencies to use seized assets toward their enforcement efforts, transforming property illicitly gained by criminals into resources to be used for public benefit. Critics of the process note it gives law enforcement agencies economic incentives to seize property, corrupting them and penalizing innocent property owners.

According to the American Civil Liberties Union, Illinois residents forfeit more than $20 million in property each year to agencies within the state, which doesn’t include seizures in Illinois made by the federal government. Law enforcement agencies are able to retain 90 percent of all forfeiture revenue, creating a strong incentive to seize.

One glaring problem with Illinois’ civil asset forfeiture program is a lack of transparency. Illinois agencies seizing property are only required to report the bare minimum about each incident to the state’s attorney handling the case, such as the inventory and value of seized property. The only way to access this data is through the Illinois Freedom of Information Act. In one FOIA request made by the Institute for Justice, IJ found law enforcement agencies took in more than $113 million between 2009 and 2013.

Scott Bullock, senior attorney at the Institute for Justice, advocates eliminating forfeitures altogether except in cases of maritime and customs law. He also offers five recommendations for states not willing to halt all forfeitures: place seized revenues in neutral funds, increase the standard of proof for seizure to require “clear and convincing evidence” of a crime, move the burden of proof to the government, make the tracking of seized assets more transparent, and eliminate “equitable sharing” arrangements, which allow law enforcement agencies to evade state restrictions on the use of forfeited funds. Equitable sharing is an agreement between state and federal agencies to split proceeds from seizures. When equitable sharing is utilized, the lower federal standard is used, rather than the local state standard. The Institute for Justice ranked Illinois 40th on equitable sharing.

Assets should be seized only for criminal reasons, and law enforcement should not have incentives to seize any more property than is necessary and justified.

The following documents provide additional information about civil asset forfeiture.

Policing for Profit: The Abuse of Civil Asset Forfeiture
Marian Williams, Jefferson Holcomb, Tomislav Kovandzic, and Scott Bullock argue civil asset forfeiture laws constitute one of the most serious assaults on private property rights in the nation today. “Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent,” they write. 

Police in Illinois Can Seize Your Property Without Convicting You of a Crime
Austin Berg of the Illinois Policy Institute examines civil asset forfeiture laws in Illinois and argues reform is needed. “One of the most concerning aspects of civil asset forfeiture in Illinois is that residents don’t know how prevalent the practice is. That’s because police departments don’t distinguish between criminal and civil asset forfeiture. Criminal asset forfeiture happens after a conviction has been secured against a criminal.” 

Civil Asset Forfeiture, Equitable Sharing, and Policing for Profit in the United States
Jefferson E. Holcomb and Marian R. Williams, professors in the department of Government and Justice Studies at Appalachian State University, and Tomislav V. Kovandzic, a professor in the University of Texas–Dallas School of Economic, Political, and Policy Studies, identify the effects of civil asset forfeiture reform on law enforcement activities. They write, “There is substantial anecdotal evidence that law enforcement [agencies] utilize a variety of tactics to generate the greatest revenue from their forfeiture operations,” a hypothesis their analysis of U.S. Department of Justice statistics confirms.  

Seize First, Question Later: The IRS and Civil Forfeiture
Institute for Justice researcher Dick M. Carpenter II and attorney Larry Salzman examine the use and abuse of civil asset forfeiture laws by the Internal Revenue Service. “Federal civil forfeiture laws give the Internal Revenue Service the power to clean out bank accounts without charging their owners with any crime,” they write. 

Civil Asset Forfeiture: 7 Things You Should Know
This Heritage Foundation Factsheet outlines several important things people should know about civil asset forfeiture.  

Civil Asset Forfeiture Reform Goes Mainstream
Jordan Richardson of The Heritage Foundation discusses how the growing number of civil asset forfeiture abuses has drawn the attention of news media and suggests the increased attention may lead to real reform. 

The Civil Asset Forfeiture Racket
A. Barton Hinkle of the Reason Foundation examines the growing problems created by civil asset forfeiture and argues for repeal of such laws. 

Inequitable Justice: How Federal ‘Equitable Sharing’ Encourages Local Police and Prosecutors to Evade State Civil Forfeiture Law for Financial Gain
The Institute for Justice examines the federal law enforcement practice known as equitable sharing, which enables and indeed encourages state and local police and prosecutors to circumvent the civil forfeiture laws of their states for financial gain.


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