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How Civil Asset Forfeiture Works in Illinois

How you can lose your private property even without a conviction

One of the most controversial practices in the criminal justice system is civil asset forfeiture. Every year, Illinois law enforcement officials are allowed to take hundreds of millions of dollars in property from private citizens—without having to prove the property holders committed any crime. Most of the seizures occur in the context of drug cases, where police seize cash, cars and even houses.

Making Life Difficult for Property Owners

State law authorizes the “civil forfeiture of property which is used or intended to be used in” illegal drug activity. Unlike a traditional fine or criminal penalty assessed following a trial, civil asset forfeiture allows the police to immediately take a suspect’s property. While a criminal conviction requires proof of a defendant’s guilt “beyond a reasonable doubt,” the Illinois civil asset forfeiture law sets an easier standard. Police must simply demonstrate by a “preponderance of the evidence” that an asset may somehow be connected to drug activity. (In 2017, part of the House Bill 303, which intended to reform forfeiture law in Illinois, increased the burden of proof beyond probable cause.)

This means that even if a person is never formally charged with a crime, he or she may still lose their assets to civil forfeiture. This is because the law presumes an asset is connected to illegal drug activity if it is “found in close proximity” to drugs or materials used in drug manufacturing. Thanks to HB303, which was supported by ACLU and went into effect July 1, 2018, a few items have made life slightly easier for property owners:

  • There is no longer a requirement that property owners pay a bond of 10% of the seized property’s value before their forfeiture case is heard
  • Possession of small amounts of drugs are no longer a basis for forfeiture
  • Property seizures by police departments and forfeitures by prosecutors are now publicly reported on the Illinois State Police website to hold law enforcement agencies accountable and prevent “policing for profit”

Forfeiture Is Big Business for Illinois Police

So what happens to assets seized through civil asset forfeiture? Most of it goes to the law enforcement agency that made the actual seizure, creating a financial incentive for local police to be aggressive in their use of forfeiture. According to the Illinois Policy Institute, Illinois seized over 45,000 pieces of personal property between 2009 and 2013, resulting in a windfall of over $113 million for the state and its law enforcement agencies. Additionally, Illinois also benefits from an “equitable sharing” deal with the U.S. Justice Department, which conducts its own civil asset forfeiture. Altogether, Illinois has made more than $300 million over a four-year period.

While the Illinois Policy Institute and other groups have called for an end to civil asset forfeiture, the practice is unlikely to end anytime soon. That is why if you are suspected of a drug crime it is a good idea to consult with a qualified Illinois criminal defense lawyer who can advise you of the potential risks of civil asset forfeiture and guide you through your forfeiture proceedings.

For more information on this area of law, see our overview of criminal defense.

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