Illinois Issues: Civil Asset Forfeiture Critics Complain Innocent People Pay

Feb 16, 2017

Disparate entities say laws in this area need to change at the state and national levels.

The police took away a 70-year-old Moline woman’s car when her grandson drove it with a revoked license. “Why am I being punished?” Judy Wiese asked a reporter last year at the Rock Island County courthouse. After the story made headlines, a lawyer stepped forward and helped her out, pro bono — and the grandmother got her Jeep back.

“There’s no way you can’t hear those stories and think something’s wrong with the system,” says Rep. Will Guzzardi, a Chicago Democrat, who has introduced a bill in the Illinois House that would overhaul the state’s civil asset forfeiture laws.

State Rep. Will Guzzardi, a Chicago Democrat, introduced legislative aimed at reducing the forfeiture of assets belonging to innocent people.
Credit Office of Rep. Will Guzzardi

Those laws let police confiscate people’s vehicles, cash and other property when those assets are suspected of being used in crimes. The assets are then used to fund law enforcement. But critics say the laws often end up taking property away from innocent people.

“There should be some sort of conviction before you take somebody’s car away from them,” says Larry Vandersnick, the lawyer who helped Wiese recover her car from authorities in Rock County. “It’s a money-maker for these police and the state’s attorney’s office. And to me, that’s the wrong incentive.”

A 2016 poll showed strong support for changing the laws: 89 percent of 500 registered voters polled in Illinois said the police should not be allowed to seize and permanently take away property from people who haven’t been convicted of a crime. “The response was negative across all political affiliations,” wrote the Illinois Policy Institute, which commissioned the poll.

That conservative group teamed up with the American Civil Liberties Union of Illinois to push for changes. Their campaign is part of a national movement to reform asset forfeiture laws, which police agencies across the U.S. began using extensively in the 1980s. A 2015 report by the Institute for Justice gave Illinois a grade of D minus on civil forfeiture, ranking the state 40th in the nation, based on the threat that its laws pose to property rights.

“The image of police using these laws to seize expensive cars and large amounts of cash from high-level drug traffickers just does not reflect the reality of what is actually happening,” says Andrew Hemmer, a lawyer for Cabrini Green Legal Aid who represents people trying to get back their property at the Cook County Circuit Court in Chicago. “It really hits low-income individuals the hardest, and police seize a lot of property from people who can’t afford to challenge it.”

Attorney Andrew Hemmer represents people trying to get back their property at the Cook County Circuit Court in Chicago.
Credit Chicago-Kent College of Law

But that’s not how some law enforcement officials see the issue. “We don’t seize cars for minor amounts of marijuana,” says Lockport Police Chief Terry Lemming, who’s president of the Illinois Drug Enforcement Officers Association. “Pounds of marijuana? Yes,” he says, emphasizing that police use the law to target drug dealers. “If this tool is taken away, the crime rate and the overdose rate will go up significantly,” Lemming warns.

President Donald Trump weighed in on the topic February 7, when he met at the White House with sheriffs from around the country. A video of the event shows John Aubrey, the sheriff of Jefferson County in Kentucky, raising the issue. “People want to say we’re taking money and without due process,” he tells Trump. “That’s not true.” Aubrey complained about efforts to curtail the power of police to seize assets — efforts such as the reform bill in Illinois.

“I’d like to look into that, OK?” Trump said. “There’s no reason for that.” The president continued: “They have a huge stash of drugs. So in the old days, you take it. Now we’re criticized if we take it.”

Aubrey told Trump about the police using such laws to “take money from dope dealers,” but he didn’t explain why the laws face criticism — for taking property from  innocent people. Urging a tough line, Trump predicted that “Congress is going to get beat up really badly by the voters” if it weakens these laws. And he said he couldn’t understand why anyone would pressure police to stop seizing criminals’ assets. “Who would want that pressure, other than, like, bad people, right?” Trump said.

The moment that captured the media’s attention came when Harold Eavenson, the sheriff of Rockwall County in Texas, told Trump: “There’s a state senator in Texas that was talking about legislation to require conviction before we could receive that forfeiture money.” Trump replied: “Who is the state senator? Do you want to give his name? We’ll destroy his career.” The White House later said Trump had been “joking,” the Dallas Morning News reported.

Guzzardi hopes the issue won’t be contentious in Illinois. “What we’re hearing from the law enforcement community is a willingness to sit and speak with us about this,” he says. “Certainly, they’ve traditionally opposed these kind of changes, but I think that there’s a tremendous amount of bipartisan momentum.” Guzzardi’s legislation, House Bill 689, has two Republicans as its chief co-sponsors: Steven Andersson of Geneva and Tom Demmer of Rochelle. Meanwhile, Oak Park Democrat Sen. Don Harmon has introduced identical legislation in the Illinois Senate, Senate Bill 1578.

Money seized by the Illinois State Police in a 2014 drug conspiracy investigation
Credit Illinois State Police

The debate over government’s authority to seize private property stretches back to America’s colonial era, when British redcoats snatched “any kind of Goods & Merchandize” that violated custom laws, sparking outrage. After the United States became independent, the Fourth Amendment enshrined the right against unreasonable searches and seizures. In addition, the Constitution’s Fifth Amendment prohibited the government from taking "private property ... for public use, without just compensation.”

The federal government began using asset forfeiture after 1819, when Congress passed a law authorizing the seizure of pirate vessels. After a U.S. warship captured the Palmyra, a private vessel commissioned by Spain, in 1825, the owner objected. Shouldn’t he be convicted of piracy before the government took his boat? The U.S. Supreme Court said no. “The thing is here primarily considered as the offender,” Justice Joseph Story wrote in the ruling — emphasizing the thing, not the person.

A century later, the government used asset forfeiture during Prohibition, taking motor vehicles from bootleggers. “But it was not until 1984, with the passage of the Comprehensive Crime Control Act and the war on drugs, that civil forfeiture really began to grow dramatically,” John Malcolm, director of the Edwin Meese III Center for Legal and Judicial Studies, wrote in a 2015 Heritage Foundation article.

That federal law inspired many similar state laws, including those in Illinois. In the 1996 case Bennis v. Michigan, the Supreme Court upheld a key concept of asset forfeiture. In the majority opinion, Chief Justice William Rehnquist said a state can seize property used in a crime — even if the property’s owner isn’t convicted of a crime or didn’t know about the crime.

The ACLU and other critics say that’s unjust. “Never is anybody required to be convicted or even charged before this process can work its way all the way to the end, permanently depriving a person of their property,” says Ben Ruddell, an attorney for the ACLU of Illinois. Indeed, as Ruddell points out, police in Illinois only need to show they have probable cause that a property was used in a crime.

ACLU attorney Ben Ruddell.
Credit ACLU of Illinois

Getting back a seized asset is a difficult legal process in Illinois, Ruddell says. “There is no right to appointed counsel. You are truly on your own if you can’t afford an attorney,” he says. In addition, property owners must pay a bond worth 10 percent of a property’s value to challenge a forfeiture. And the burden of proof falls on them.

“They have to prove not only that they’re innocent,” Ruddell says. “They have to prove a negative: ‘I did not know that my grandson was going to have drugs when he took my car.’ …  Not only do they have to prove that they didn’t know that, but furthermore, they have to prove that they couldn’t possibly have known.”

Sylvia Smith, a disabled Chicago grandmother, says the legal process baffled her when she tried to recover her car. Smith’s son was charged with possession of marijuana when he was driving her car in April 2016, she says, but the case against him was dismissed a short time later. In spite of that, “it took me about 10 months to get the car back,” Smith says. “I really do feel it was unfair. I shouldn’t have had to go to court those many times. If he won his case, why couldn’t I just get the car back? Why did I have to go through all that?”

Smith says she relies on her son and other family members to drive her around in her car. “I do ride with Pace (buses) from time to time, but you have to ride around sometimes a couple of hours before you get home. So yeah, it’s been rough,” she says.

Hemmer represented Smith pro bono, helping her get her car back in January. “If I didn’t have him to stand up there and talk for me, I probably wouldn’t have my car now,” Smith says. (Hemmer is an Equal Justice Works Fellow at Cabrini Green Legal Aid, with a salary underwritten by United Airlines and the Seyfarth Shaw law firm.)

“Once you actually get to trial, you have a good chance of winning,” Hemmer says. “But it’s getting to trial that’s the hard part — jumping over all these hurdles … in the statute.”

If the Guzzardi and Harmon bills become law, people would have to be convicted of crimes before their property could be forfeited. And the burden of proving a property’s role in a crime would fall on the state instead of the property owner.

Another key issue is what happens with the money resulting from asset forfeitures — and the lack of any public accounting about where it goes.

In most cases, the proceeds are divvied up among law enforcement agencies. The police force or agency that seized the property gets 65 percent, while the Illinois State Police gets 10 percent. In Cook County, the remaining 25 percent goes to the Cook County state’s attorney’s office. Elsewhere in Illinois, that chunk is divided equally between the county prosecutor and the Office of the State’s Attorneys Appellate Prosecutor.

Lemming, the Lockport police chief, says it’s only fair that police and prosecutors get these funds, because it helps to cover towing and storage fees for seized vehicles and other expenses related to the cases. Lemming also stresses the importance of using criminals’ assets to fight crime. “The law was put in place … so that those assets could be used against them,” he says. 

Lockport Police Chief Terry Lemming is
Credit Terry Lemming / Lockport Police

But Ruddell says the laws give police a “perverse incentive” to seize assets, whether doing so is justified or not. Under Guzzardi and Harmon’s bills, the money would go to the Illinois Criminal Justice Information Authority. Local law enforcement agencies could then receive the money by applying for grants. 

According to a report by the ACLU and the Illinois Policy Institute released in November, Illinois had more than $319 million in private asset seizures from 2005 to 2015 — and that figure doesn’t even include vehicle seizures under a provision called Article 36, which could number in the thousands every year. Over the same period, federal authorities took an additional $404 million in assets from Illinois residents. The report was based on Freedom of Information Act requests.

Not surprisingly, the Chicago Police Department seized more property from 2005 to 2015 than any other agency in Illinois — assets worth $79.5 million. The Illinois State Police ranked second, with $57.6 million. Rock Island police seized the most assets per capita, followed by the Decatur, Peoria, Chicago and Moline police departments, according to the report.

Credit Illinois Policy Institute/ACLU of Illinois

In an investigation last September, the Chicago Reader reported that Chicago police’s Bureau of Organized Crime oversees a forfeiture fund “in what amounts to a secret budget — an off-the-books stream of income used to supplement the bureau’s public budget. The Reader found that CPD uses civil forfeiture funds to finance many of the day-to-day operations of its narcotics unit and to secretly purchase controversial surveillance equipment without public scrutiny or City Council oversight.”

Guzzardi says his bill would add that public scrutiny. “One important piece of the reform that we’re talking about … is ensuring there’s transparency and accountability through this process,” he says, “so the taxpayers can have a sense of just how much of this property is being taken and by whom.”

Lemming acknowledges that Illinois’ asset forfeiture laws could be improved. “I’m not saying it’s perfect, and maybe we should make some changes,” he says, “but I do think it works well.” However, he opposes a major overhaul. “If we lose the ability to seize and use that money against the people that are creating this violence, the violence level throughout the state will do nothing but rise,” he says.

On the other hand, Guzzardi says reforms would improve the relationship between Illinois citizens and police. “Reforming this practice so that it is more fair and just to citizens is going to go a long way toward restoring some of that trust.”