Illinois Legislature Overwhelmingly Approves Bill Requiring Transparency and Accountability in Civil Forfeiture Practices

Posted on June 29, 2017

UPDATE (7/21/17): According to a new report from The Intercept, the US Department of Justice has announced that it will scrap reforms made under President Obama to rein in the practice of civil asset forfeiture by federal law enforcement, reintroducing a legal loophole that would allow state and local law enforcement to defeat measures in their jurisdictions regulating forfeiture. The reinstated policy, known as adoptive forfeiture, or alternatively as the “Equitable Sharing Program,” permits local law enforcement which would otherwise be bound by local or state legislation restricting forfeiture procedures to refer the property seizure to federal law enforcement, essentially arbitrarily transferring the matter to federal jurisdiction, which would then keep 20% of the forfeiture’s value and return the remaining 80% back to the agency which originally seized it. This development could potentially render the Illinois state legislature’s efforts, along with similar reforms undertaken by state and local legislatures across the country, partly or entirely ineffectual in stemming the abusive policing practice by providing law enforcement with a means of sidestepping them.

According to a report from Reason, both houses of the Illinois state legislature have voted by a wide margin in favor of a bill which would reform civil forfeiture practices in the state. The legislation, which increases the threshold that law enforcement must reach to confiscate property and mandates oversight of expenditures made with funding acquired through civil forfeiture, is now bound for Governor Bruce Rauner’s desk after unanimous approval in the Illinois Senate and approval with only one “nay” vote in the Illinois House.

Civil forfeiture is a practice legal in much of the country and, critically, in Cook County and the city of Chicago, which permits law enforcement officials to confiscate an individual’s property identified in the process of a legal search, such as a traffic stop, if the officials reasonably believe that the property was or could be involved in criminal activity or a related transaction. Property seized in this way may be retained indefinitely, regardless of whether criminal charges are pursued against its owner, and can then be liquidated by auction to supplement law enforcement budgets. In recent years civil forfeiture has gotten significantly more mainstream media attention, one notable example of which is comedian Jon Oliver’s apt and witty summation of the practice. This increased scrutiny has culminated in recent investigations into civil forfeiture revealing that police departments frequently employ civil forfeiture to prey on low-income individuals, who lack the financial means or time to pursue court proceedings to secure the return of their property, often for the purpose of augmenting their budget to provide for the purchase of expensive military-grade or surveillance equipment. In fact, a joint investigation by the Chicago Reader and Chicago digital rights organization Lucy Parsons Labs found that the Chicago Police Department used the funds derived from civil forfeiture, which are exempt from the department’s financial disclosure requirements, to purchase stingray cell phone interception devices and other surveillance equipment.  

If enacted into law, the bill (HB303) would raise the bar which prosecutors must meet to retain seized property from its current requirement of “probable cause” to “a preponderance of evidence” that the seized property was or will be involved in criminal activity. The legislation would also eliminate the bond fee, which amounts to 10% of the property’s estimated worth, required for an individual to initiate court proceedings to compel law enforcement to return their property, and would even exempt property of value under $500 from a number of drug-related civil forfeiture actions.  Finally, the new measure would require law enforcement t9 disclose the amount of funding it accumulated through the liquidation of civil forfeiture property and the purchases made with this funding.

While by no means an ideal solution, this bill represents a crucial first step in bringing regulation and transparency to an easily abused law enforcement practice, and one with a particularly harmful impact on citizens of a low-income background. Not only does this group stand to lose the most from civil forfeiture, but innocent low-income citizens are the least likely to be able to ensure the return of their property, yet are the most likely to be the target of civil forfeiture. Moreover, the bill would critically shed light on an opaque stream of revenue funneling into law enforcement agencies’ budgets, CPD’s in particular, which is frequently utilized to surreptitiously acquire surveillance or military-grade equipment, both of which profoundly impact the rights of citizens.

You can read the full report from Reason here

Jonathan Terrasi has been a Research Assistant with the Chicago Committee to Defend the Bill of Rights since January 2017. His interests include computer security, encryption, history, and philosophy. In his writing, he regularly covers topics on current affairs and political developments, as well as technical analyses and guides on security issues, published on his blog, Cymatic Scanning, and Linux Insider.