Most people expect law enforcement to protect private property – not to be among the largest violators of property rights.
But too often, that’s not the case.
In 2014 the federal government took in more money through asset forfeiture – seizing private property – than thieves stole through burglary, according to a new research report by the Institute for Justice.
But this is not just a federal problem – millions are also taken in by Illinois and other states every year, with little to no oversight, and with few due process protections for property owners. In the same report from the Institute for Justice, Illinois received a D- for its civil asset forfeiture laws.
There are two types of asset forfeiture. Criminal asset forfeiture occurs when government seizes private property after someone has been convicted or pleads guilty to a crime, and the property was either gained through or closely involved with the commission of the offense.
But under civil asset forfeiture, charges against a person aren’t required. Police can take property they suspect is related to criminal activity without having to prove a connection in court. Under federal and many states’ civil asset forfeiture laws, such property – cash, vehicles, computers, real estate, etc., – can be taken without a criminal conviction or a warrant, and sometimes without formally charging the property owner with a crime. Civil asset forfeiture places the burden on property owners to contest the seizure in court. Eighty-seven percent of all federal forfeitures are civil, not criminal, meaning that criminal charges and a conviction are not involved in the overwhelming majority of these seizures.
Contesting the seizures can be expensive and time-consuming. In Illinois, a property owner who challenges a property seizure must pay a bond worth $100 or 10 percent of the value of the property (whichever is the greater amount) just to contest the seizure. If the owner loses, he or she forfeits the bond.
When police departments are allowed to use the assets they take as revenue for themselves – as they often can and do – incentives for abuse abound.
One way Illinois collects forfeited funds is through the Department of Justice’s equitable sharing program. Equitable sharing allows local and state police to collaborate with federal law enforcement so that any property taken will be forfeited under federal, not state law. Local agencies then get to keep up to 80 percent of these forfeited funds.
Illinois is a major participant in equitable sharing programs, taking in over $186 million from the DOJ’s equitable program between 2000 and 2013, and another $36 million from the Treasury Department’s program.
But outside of equitable sharing, Illinois also takes in millions through its state-level asset forfeiture program. The available information doesn’t distinguish between criminal and civil asset forfeiture, and Illinois does not maintain detailed, publicly available data on how much is seized and what the funds are used for. But information obtained through Freedom of Information Act requests reveals that between 2009 and 2013, Illinois law enforcement took in over $113 million worth of property.
During this same period, Illinois made over 45,000 seizures of personal property in Illinois through asset forfeiture.
The new data regarding the billions of dollars taken through federal forfeiture comes at a time when proposals to limit or ban civil asset forfeiture are gaining traction across the country. New Mexico and Montana, for example, only allow police to seize private property after a criminal conviction. Minnesota enacted significant reforms in 2014 in the wake of scandals involving police using funds from seized property for trips to Hawaii, as well as law enforcement’s inability to account for a large part of the proceeds from seized assets. In October, Michigan took steps to improve police reporting regarding the use of seized assets and also put a higher burden of proof on law enforcement to show the connection of the seized property to a crime.
Illinois needs to rein in the abuses inherent in civil asset forfeiture. Mandating that law enforcement publicly report on how it acquires and uses forfeited funds would be a step forward, but it is not enough. Law enforcement should not be able to take any property without a conviction or admission of guilt – which means ending civil asset forfeiture altogether. Property rights are too important to allow the government to routinely violate them with little oversight or accountability. Illinoisans should demand the General Assembly put a stop to it.
Bryant Jackson-Green is a policy analyst for the Illinois Policy Institute.