J. Justin Wilson
J. Justin Wilson · September 19, 2017

Today, Illinois Gov. Bruce Rauner signed a bill that bolsters transparency for civil forfeiture and strengthens due process protections for innocent property owners. Under civil forfeiture, law enforcement agencies can seize and then take title to cash, cars and other valuables without charging anyone with—let alone convicting them of—a crime.

“Civil forfeiture is one of the greatest threats to private property rights and civil liberties,” said Institute for Justice Senior Legislative Counsel Lee McGrath. “It’s a welcome sight to see that half the nation has now enacted reforms to curb this inherently abusive practice.”

The bill, HB 303, received broad, bipartisan support, passing the Senate unanimously and with only one vote against it in the House. HB 303 will:

  • Oblige agencies to report their forfeiture expenditures, including spending on salaries, overtime, compensation for crime victims, drug abuse programs, travel, meals and operating expenses;
  • Require that all forfeiture reporting be posted to a public, searchable database on the Department of State Police’s website.
  • Allow the Department to adopt rules that require withholding forfeiture funds from noncompliant agencies;
  • Mandate regular, independent audits for the State Asset Forfeiture Fund;
  • Institute new notice requirements; and
  • Shift the burden of proof from the property owner onto the state—where it belongs.

“Shining a light on forfeiture fund spending is particularly important because Illinois law lets agencies keep 90 percent of what they confiscate,” noted Jennifer McDonald, an IJ research analyst who co-authored a report on forfeiture transparency and accountability. “This self-financing outside of the legislature’s power of the purse has long enabled law enforcement to escape public scrutiny and accountability.”

Illinois police and prosecutors have earned notoriety for their forfeiture practices. A joint study by the ACLU of Illinois and the Illinois Policy Institute reported that agencies collected more than $319 million in forfeiture funding over the past decade. In June, the Illinois Supreme Court ruled against the LaSalle County State’s Attorney, who created his own drug squad that seized over $1.7 million by patrolling highways. And a recent investigation by Reason found that Chicago police seizures were “heaviest in low-income neighborhoods.” 

In addition, HB 303 repeals the state’s “cost bond” requirement, which forces owners to pay the greater of $100 or 10 percent of their property’s value, all before they can even challenge a civil forfeiture case in court. Now only three states have that requirement.

Further protecting the poor, the bill sets a confiscation floor by exempting cash seizures under $500 from forfeiture, if they relate to a drug possession offense. (For all other offenses, the threshold would be $100.) According to a report by the Institute for Justice, half of all forfeitures conducted in Illinois in 2012 were under $530.

“For too long, Illinois’s cost bond has kept the courthouse doors shut for innocent owners desperate to regain their property,” McGrath said. “No one should be denied justice simply because they cannot afford their day in court.”

However, Illinois’ new law does not address “equitable sharing,” a federal forfeiture program that allows local and state agencies to bypass state protections, forfeit property federally, and collect up to 80 percent of the proceeds. In July, Attorney General Jeff Sessions announced a new policy that partially revitalized equitable sharing, in order to “increase forfeitures.”

“The Attorney General’s plans give a fierce urgency for states to resist this egregious form of federal interference,” noted McGrath. “In the next session, Illinois lawmakers must close the equitable-sharing loophole once and for all, and should follow recent reforms enacted in Arizona, Colorado and Ohio.”

Nationwide, 25 states and Washington, D.C. have tightened their forfeiture laws since 2014, including Nebraska and New Mexico, which outright abolished the practice of civil forfeiture and replaced it with criminal forfeiture. On the federal level, the House of Representatives recently passed a bill by Illinois Congressman Peter Roskam that would curb civil forfeitures by the IRS.