Can Illinois Police Still Seize Assets Used in Crimes?

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Both the state of Illinois and the U.S. Supreme Court have taken action recently to protect citizens from the unreasonable seizure of personal property allegedly used in the commission of or obtained with the profits of criminal activities such as drug possession and sales . The Illinois law took effect July 1, 2018, while the U.S. Supreme Court ruling was handed down on February 20, 2019.

These reforms are a welcome response to widespread concerns that law enforcement agencies have abused the power given to them by civil asset forfeiture laws at both the state and federal levels. These laws permit a law enforcement agency to seize private property involved in a crime even though the owner of the property has not yet been convicted or even charged with a crime. In some cases, the property owner was not even aware that their car or home was in any way associated with the commission of a crime.

In many cases, the assets seized by police are excessive relative to the severity of the crime. Is it fair, for example, for the police to seize a $40,000 car used to transport and sell $400 worth of drugs when the maximum fine for this crime is $10,000? In Illinois alone, asset seizures have reportedly exceeded $30 million per year.

SCOTUS Rules that the Eighth Amendment Prohibition of Excessive Fines Does Apply to State Governments

A 2019 Supreme Court ruling addressed one simple question: Does the Eighth Amendment to the US Constitution apply only to the federal government or also to the states? The Eighth Amendment, in part, reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The court ruled that this prohibition of excessive fines does apply to the states. The majority opinion stated in part: "The protection against excessive fines guards against abuses of government’s punitive or criminal law-enforcement authority." This ruling is expected to cause every state to reexamine their civil asset forfeiture procedures and to significantly decrease forfeitures in the future.

Illinois Makes Asset Seizure and Forfeiture (Fair) and Transparent

Illinois has more than a dozen different laws that allow the police to seize personal assets allegedly involved in crimes, including:

• The Illinois Drug Asset Forfeiture Procedure Act (725 ILCS 150) defines the process by which the police may seize drug-crime assets; and

• Article 36 of the Illinois criminal code (720 ILCS 5/36-1) allows the police to seize any vehicle, watercraft, or aircraft that is used with the knowledge and consent of the owner in the commission of crimes ranging from DUI to theft to unlawful use of guns or other weapons.

A new law, the Seizure and Forfeiture Reporting Act, took effect in Illinois on July 1, 2018. Its key provisions include:

• Forfeitures are now subject to an Eighth Amendment “disproportionate penalties analysis” to ensure that the forfeiture does not constitute an excessive fine;

• Unlawful possession of less than two doses of a controlled substance is no longer sufficient cause for any asset forfeiture;

• In marijuana cases, cash of less than $500 will not be subject to forfeiture. In all other drug cases, cash of less than $100 will not be subject to forfeiture;

• The government now bears the burden of proving the property owner’s criminal guilt; previously, the property owner was forced to prove their own innocence to get their seized property back;

• The government must now show not just “probable cause” but “by the preponderance of the evidence” that the seized property was actually associated with a crime; and

• The Illinois State Police must now collect and publish data on statewide asset seizures by location, date, property description, and value. This reporting was to begin January 1, 2019, but their website now says reporting will begin in 2020.