Reforms To State Civil Forfeiture Laws Still Lag, Critics Say
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Increasing lawsuits and allegations of civil right violations prompted the Illinois legislature to pass reforms of civil asset forfeitures that went into effect last year.
Both federal and state civil asset forfeiture laws allow the seizure of property without a criminal charge being filed or case being filed in court.
Illinois reforms limited seizures by requiring police to have a slightly higher burden of proof to seize the property.
For example, drug residue found in a person’s pocket is no longer grounds for Illinois police to take a car, said Ben Ruddell, criminal justice policy attorney at the American Civil Liberties Union of Illinois in Chicago.
The reform required data collection and reports on seizures to more create transparency. It also eliminated the requirement that citizens needed to post a 10 percent bond of the value of the property that was seized before their case to retrieve their property was even heard.
“We’re proud of it and it made of a lot of different changes in different areas, all of which are good, some of which are significant but none of which are transformational,” Ruddell said.
But reforms to Illinois law such as requiring a conviction to keep seized property and removing the financial incentives from police departments were not adopted, he said.
“We were not able to achieve what we see as absolutely essential to truly transformational reform to this system,” he said.
Iowa’s 2017 reform to its state civil asset forfeiture law now requires a criminal conviction before police can permanently keep seized property valued below $5,000 – the lowest among the dozen states that require a criminal conviction as part of state forfeiture laws, according to the Institute for Justice, a nonprofit libertarian law firm.
A 2018 Iowa Supreme Court decision ruled that citizens did not have to answer a string of questions about the property before getting their case heard to claim their property back, said Dean Stowers, a Des Moines-based attorney who argued the case before the Supreme Court.
Previously, a person had to answer questions under oath and under penalty of perjury about where and how they acquired the property or else automatically lose the property, he said.
“Nobody is saying there aren’t situations where forfeiture of property would be an appropriate thing to do,” Stowers said. “If somebody uses or acquires a bunch of money from illegal activity, they shouldn’t be able to profit. At the same time, people who are enforcing the law shouldn’t be taking the ill-gotten proceeds.”
Between 2016 and 2017, Indiana state agencies seized 236 cars, 21 firearms and 97 pieces of real estate in addition to the 289 other items – for a total of $3.4 million.
Just $44,000 was returned to defendants, according to the state report provided through the Freedom of Information Act request.
A recent U.S. Supreme Court ruling on an Indiana civil forfeiture case found that states are prohibited from imposing excessive fines, but the case does not directly impact how states conduct civil asset forfeitures because it’s up to the state courts to decide what is excessive, said Dan Miller, an attorney with the Indiana Prosecuting Attorneys Council.
“Reform came about because of pressure nationwide on forfeiture,” Miller said. “Some pressure is legitimate, some criticism is legitimate, some, in my opinion, is overblown.”
Miller said one such criticism is that state police seized automobiles used in crime but the owners are those who are not involved in the crimes.
Still, he said, “Even if it’s happening once, it’s happening too many times.”
If a court orders a vehicle to be returned to the owner, then the owner became responsible for the towing and storage fees – and often, those fees would exceed the value of the car, Miller said. Police contract with private companies to tow and store seized vehicles.
Under Indiana’s reform efforts, which were implemented two years ago, if a property is returned to its owner without any forfeiture action filed, then the owner is not responsible for the towing and storage fees.
Other reforms in Indiana require prosecutors to file an affidavit of probable cause within seven days of the seizure. If a court does not find probable cause, the property is immediately returned.
Officials have three months to file a case against the seized property rather than six months. Owners of seized houses and cars can petition for the return of their property while the forfeiture case is pending. Once they do however, officials then have 21 days to file their case.
The reforms, Miller said, “make it safer for all of us if we involve the courts earlier in the process.”
Additional research by Marium Kureishy