What is Civil Asset Forfeiture in Illinois?
Asset forfeiture is the permanent confiscation of private property by law enforcement agencies at the local, state and federal levels. Illinois and federal law both permit law enforcement agencies to take cash, land, vehicles and other property they suspect is involved in or derived from illegal activity.
From 2005 through 2014, approximately $31 million a year on average was extracted from Illinoisans through forfeiture on the state level – and that number doesn’t even include additional “Article 36” vehicle forfeitures, potentially numbering in the thousands annually, that are never reported. An average of more than $36 million more was seized each year in Illinois under federal law. Illinois stands out among other states for its high seizure rates, ranking among the top 11 in takings through equitable sharing with the federal government.
American forfeiture laws originated from admiralty and customs laws, which allowed seizure of contraband from ships at sea. However, the practice remained relatively obscure until the “War on Drugs” of the 1980s and 1990s. The Comprehensive Crime Control Act of 1984 expanded civil forfeiture at the federal level and inspired states to enact their own forfeiture laws. By “removing the proceeds of crime and other assets relied upon by criminals and their associates to perpetuate their criminal activity against our society,” it’s reasoned, law enforcement would have another tool to “disrupt or dismantle” criminal organizations, including but not limited to drug dealers.[5]
But despite good intentions, asset forfeiture has proved subject to abuse.
Civil asset forfeiture litigation is brought not against a person, but against his or her property when the property is suspected of being involved in illegal activity. But the law offers little protection for property owners. Under Illinois law, a person need never be convicted of any crime – or even arrested or charged – in order to be permanently deprived of cash, a car, or even a home. And regardless of whether the person from whom property is seized is ever charged with a crime, he or she has no right to appointed counsel in a forfeiture proceeding.
Law enforcement agencies have a strong financial incentive to seize property, because they reap almost all of the proceeds from civil asset forfeiture. Once police seize property on the suspicion that it is connected to a crime, the burden of proof is essentially on the owner to prove that the property should not be permanently forfeited to the government – if he or she can afford to challenge the taking at all. Some of Illinois’ laws even force property owners to pay up front for the right to challenge the forfeiture in court. The high cost of challenging a seizure, and the fact that many who face seizure of their property cannot afford private legal representation, means that innocent people can be effectively denied access to justice.
One especially egregious example is one our team is currently defending. In March of 2023, Almeda Cain, then 84 years old, received an unwelcome lesson about Illinois forfeiture laws after her adult daughter borrowed her 2014 Mazda to drive to a local pharmacy. Unbeknownst to Almeda, her daughter’s driving privileges were suspended. The New Lenox Police stopped her car for having an expired tag, and the vehicle was seized. Subsequently, the prosecutor’s office instituted a forfeiture action to take the vehicle away permanently. Our office exposed this wrong and is fighting for Almeda, and many others facing a wrongful seizure.
A May 2016 poll of Illinois registered voters commissioned by the Illinois Policy Institute showed an overwhelming majority of poll respondents are skeptical of civil asset forfeiture.
One question asked, “In Illinois, civil asset forfeiture laws let law enforcement seize a person’s cash or property if they suspect it has been involved in criminal activity. Under these laws, the property owner does not have to be convicted or even be charged with a crime to lose their property. In your opinion, should police be allowed to seize and permanently take away property from people who have not been convicted of a crime?”
The response was negative across all political affiliations: 89 percent of registered voters opposed property seizures without a conviction. This includes 93 percent of Democrats, 86 percent of Republicans and 89 percent of Independents.
If you have any questions about an Illinois forfeiture call us for a free, no obligation consultation or use our Free consultation form.
