Illinois legislature passes civil asset forfeiture reform

Civil asset forfeiture reform has now cleared the Illinois General Assembly.

Illinois lawmakers passed civil asset forfeiture reform June 23.

This is an important step toward protecting property rights and more fully honoring the concept of “innocent until proven guilty.”

The Illinois House of Representatives voted 100-1 in favor of an amendment to House Bill 303, meaning the bill ultimately passed. If the governor signs the bill into law, it will take effect July 1, 2018.

So what is civil asset forfeiture, and why does it matter in Illinois?

Law enforcement uses a tool called asset forfeiture, which breaks down into two categories. Criminal asset forfeiture allows government agencies to take property the government has proved was involved in criminal activity. Civil asset forfeiture allows law enforcement officials to seize property they suspect was involved in criminal activity; no conviction is required for officials to take property under civil asset forfeiture laws.

Eighty-seven percent of all federal property seizures are civil, not criminal – meaning that most often, property is taken from people not convicted of a crime, according to a report from the Institute for Justice.

Since 2005, while federal law enforcement took in more than $404 million through asset forfeiture in Illinois, state and local law enforcement took $319 million from private citizens over the same time period.

The most important reform in the amended version of HB 303 is that the legislation shifts the burden of proof from the property owner to the government. In simple terms, that means that when law enforcement decides to take property under forfeiture laws, the state must be able to show a court that law enforcement was entitled to seize the property. Today, that burden falls on property owners, who must make the case to keep their property.

“The burden shifting to the state is the most important thing,” said Ben Ruddell, staff attorney at the American Civil Liberties Union of Illinois, one of the main advocates of the reform legislation. “You’re talking about folks who don’t have legal representation. To take the burden of proving something off of them and put it on the folks who have all the resources, that’s certainly the biggest shift in fairness.”

The legislation also eliminates the requirement that property owners must pay a “cost bond” equal to 10 percent of the value of the seized property before their case can be heard by a judge. Currently, some of Illinois’ forfeiture laws require property owners to post a “cost bond” of 10 percent of the property’s value and to agree to pay all costs and expenses of forfeiture proceedings in the event the government prevails, in order to have the case heard by a judge. Failure to post the bond will result in nonjudicial forfeiture of the property. Even if the claimant prevails in the forfeiture case, the law provides that the circuit court clerk shall retain 10 percent of the bond amount as “costs.”

HB 303 also requires the government to do more to ensure that property owners receive notice of the forfeiture proceedings and understand the steps they must take to argue for the return of their property.

The legislation also provides for new data collection around seizures of property by police departments and forfeitures by prosecutors around the state, which will be reported to the Illinois State Police and published on the agency’s website.

This legislation differs from House Bill 689, a previous iteration of civil asset forfeiture reform. HB 689 would have required a criminal conviction for any asset forfeiture, and would have changed the way the proceeds from asset forfeiture are distributed, minimizing financial incentives for law enforcement agencies to take property.