22 May When Profit Plays a Role in PolicingPosted in Criminal Defense
Illinois and federal law both allow law enforcement agencies to take cash, land, vehicles and other property they suspect may be involved in illegal activity from people charged with crimes, even if they have not been convicted. This is called asset forfeiture, and it means private property can be permanently confiscated for the benefit of law enforcement without the owner’s even being charged with a crime.
The federal civil asset forfeiture laws were expanded in 1984 as part of the Comprehensive Crime Control Act (CCCA) due to anxiety over increasing crime, especially drug-related crime. While a paper by the National Bureau of Economic Research (NBER) claims these laws contributed to a 17 percent crime decline, it also found the “police for profit” approach created negative unintended consequences. The financial incentives of seizing assets increased the risk of abuse and allowed seizure from innocent people.
If you have been accused of a crime in Illinois that involves property seizure, you should be aware of the potential for forfeiture abuse and discuss it with the attorney who is helping you fight for freedom. The experienced and seasoned Illinois criminal law attorneys at Wolfe & Stec, Ltd., can help. We know the courts and the criminal justice system and how the police operate, and will do everything possible to vigorously fight for you and defend your rights and your property against abusive forfeiture.
We offer a free initial consultation. If you have been accused of any criminal charges or have had property seized, get help today by calling 630-305-0222.
Why the Law
The federal civil asset forfeiture laws expansion allowed many local law enforcement agencies to seize up to 80% of the assets of criminal suspects, which amounted to over $4.5 billion in 2014, according to the National Bureau of Economic Research paper. The amount returned to police subsidized as much as 20 percent of the budgets of local police departments, according to the study. As a result, law enforcement activities since 1984 focused on the War on Drugs and exploited the huge profits made by drug and narcotics traffickers.
In cities like Chicago, forfeitures are mostly in low-income and minority communities. In Illinois, law enforcement agencies receive about $30 million in forfeited property each year, according to a joint study by the American Civil Liberties Union of Illinois and the Illinois Policy Institute. This amounted to more than $319 million in forfeited property over the last decade.
The Chicago Police Department has the most seizures and benefits the most, with more than $79.5 million in forfeited assets between 2005 and 2015, according to the study. And state law does not require law enforcement agencies to account for how property was seized or how proceeds were spent. Authorities are allowed to keep property or auction it and keep the money.
What is the Forfeiture Process?
The forfeiture process usually begins when a police officer seizes property believed to be involved in criminal activity. The property might be seized directly from the owner or from another person having possession, such as a vehicle driven by a family member.
The owner must wait at least 14 days after the seizure for a preliminary hearing to seek the return of the property. If the court finds that the police had probable cause to seize the property, the owner must file a “verified answer” and, in addition to court fees, may even be required to post a cash bond equal to 10 percent of the value of the seized property. If this is not done, the property will be forfeited automatically through a “nonjudicial forfeiture.”
If there is a trial, owners must convince the court not only that they did not commit a crime, but also that they did not and could not have known about the crime. The prosecutor – but not the property owner – can admit hearsay evidence. Even if owners win the case, they will have to pay 10 percent of the bond posted plus attorneys’ fees.
For criminal forfeiture, the forfeiture proceedings are part of a criminal prosecution case and require the defendant to be found guilty of the charged offense before property is forfeited. However, civil forfeiture laws allow forfeiture of property whether or not anyone is criminally prosecuted.
Problems with the System
Having property forfeited can be devastating to the people from whom property is taken. Besides causing financial suffering, losing assets such as a vehicle can mean not being able to get to work or school and lead to losing a job. The negative effects of losing property can also harm the person’s children and family members.
Even if individuals from whom property is seized are never charged with a crime, they have no right to appointed counsel in a forfeiture proceeding. And since property owners must often pay up front for the right to challenge the forfeiture in court, innocent people may be denied access to justice.
What Can Be Done
The following are recommendations for policy reforms to protect the rights of innocent property owners:
- Provide fair legal standards and procedures. Illinois should require criminal conviction before property can be forfeited to the government. A judge should consider the merits of the case. Owners should not have to post a cash bond in order to challenge forfeiture.
- Remove incentives for “policing for profit.” Property gained through forfeiture should be auctioned and the proceeds deposited directly into the general revenue fund instead of being awarded directly to police and prosecutors’ offices.
- Increase transparency. Law enforcement agencies and prosecutors’ offices should publicly report information about property seized, including where and when the seizures took place, and how proceeds are spent.
Put Your Trust In Us — Contact Wolfe & Stec, Ltd. for a Free Consultation.
If you have had property confiscated by law enforcement, you may be able to recover it successfully with help from an attorney. The criminal defense lawyers at Wolfe & Stec, Ltd. are skilled trial lawyers who believe each case is unique, with its own set of circumstances. We will aggressively explore every avenue for your defense and recovery of assets. We examine the facts, the individuals involved, and the evidence available, and work hand in hand with our clients throughout the criminal process. Our goal is always to minimize the negative impact of the situation and to focus on protecting your freedoms, liberties, rights, and any forfeited property.
Don’t delay — contact us for help today at 630-305-0222 or contact us online to schedule your free initial consultation if you have been accused of any criminal charges or had property forfeited.
We represent clients in DuPage County, Naperville, Aurora, Wheaton, Downers Grove and Bolingbrook, Illinois, and the entire Chicagoland area.