Hold On to Your Assets

The Supreme Court reviews Illinois' awful asset forfeiture law.

Radley Balko | September 8, 2009

This fall, the U.S. Supreme Court will hear oral arguments in Alvarez v. Smith, a challenge to the state of Illinois' Drug Asset Forfeiture Procedure Act (DAFPA). (Disclosure: the Reason Foundation, publisher of Reason.com, joined in an amicus brief in the case.) The six petitioners in Alvarez each had property seized by police who suspected the property had been involved in a drug crime. Three had their cars seized, three had cash taken. None of the six were served with a warrant, none of the six were charged with the crime. All perfectly legal, at least until now.

Under DAFPA, incredibly, the government can delay for up to 187 days before an aggrieved property owner can get even a preliminary hearing on warrantless seizures of less than $20,000. The three car owners, for example, had to go without their cars for more than a year.

Civil asset forfeiture is a particularly odious outgrowth of the drug war. While few would argue that criminals ought to be able to keep the proceeds of their crimes, civil forfeiture allows the government to seize and keep property without actually having to prove a crime was committed in the first place. Hence, forfeiture cases tend to have names like U.S. v. Eight Thousand Eight Hundred and Fifty Dollars, or U.S. v. One 1987 Jeep Wrangler. Proceeds from civil forfeiture at the state and local level usually go back to the police departments and prosecutors' offices, giving them a clear and unmistakeable incentive to seize as much property as often as possible.

Fittingly, the Supreme Court is hearing arguments in Alvarez on the 25th anniversary of the Comprehensive Crime Control Act of 1984, the federal legislation that gave us the modern abomination that is drug forfeiture. That law made it easier for federal prosecutors to seize the assets of drug suspects, regardless of whether they were ever charged with a crime. It allowed the government to use hearsay evidence in forfeiture proceedings, and required a showing of only probable cause that the property was tied to a drug crime in order for the government to keep it. That meant, for example, that federal agents could testify to something an informant had told them even if the informant was unavailable to the defense for cross examination.

After a series of particularly outrageous forfeiture cases made national headlines throughout the 1990s, the late Rep. Henry Hyde (R-Ill.) was able to push through some reforms in 2000. The Civil Asset Forfeiture Reform Act (CAFRA) bumped the government's standard of proof to "a preponderance of the evidence," prevented the use of hearsay, and provided for defendants who won in court to be compensated for attorney's fees.

But the CAFRA reforms applied only to federal law, not to the states, and after 1984 many states passed forfeiture bills similar to the new federal law. Illinois' law is one of the worst in the country. DAFPA still allows the state to use hearsay evidence, for example, and still sets the state's evidentiary burden at probable cause. Conversely, if property owners want to use the "innocent owner" defense, they can't use hearsay, and their burden is the higher "preponderance of the evidence" standard. Property owners must post a bond on the seized property just to get a hearing, which again can take up to six months. And even if they prevail in court, they still forfeit 10 percent of the bond. The government isn't required to reimburse them for attorney's fees, court costs, or interest, nor is the state liable for any loss of time or income caused by the pilfered property.

The Supreme Court will likely rule only on the provision of the Illinois law that allows the government to hold property for six months before an owner gets his first day in court. The U.S. Court of Appeals for the 7th Circuit struck down that particular portion of the law, though its opinon indicated only that expected property owners be given notice of the seizure and that they be given at least a bare-bones hearing. The opinion amounted to a light rebuke of one poriton of an unconscionable law.

Even here, there's cause for pessimism. Generally, the U.S. Supreme Court takes up cases where there's either disagreement between federal districts (that isn't the case here) or where a significant number of justices have problems with the appellate court's decision. It's possible that the Court agreed to an appeal of the 7th Circuit ruling to affirm it, but it isn't likely.

In sum, we have a law that allows the state to seize someone's car without a warrant on the grounds that the car may have been connected to drug activity. Even if he's innocent, the car's owner may have to wait six months before he's even granted a hearing, and more than a year before the state returns his property. Under the 14th Amendment's Due Process clause, a state may not "deprive any person of life, liberty, or property, without due process of law." If Illinois' forfeiture law isn't a violation of the property portion of the Due Process clause, it's hard to fathom what would be. As George Mason University law professor Ilya Somin wrote at the Volokh Conspiracy earlier this year, "The fact that such minimal enforcement of constitutional property rights remains controversial is a strong indication of the second-class status of property rights under current jurisprudence."

Unfortunately, the best outcome from Alvarez is likely to be little more than a requirement that states grant a bare-bones hearing in forfeiture cases within a reasonable amount of time—a marginal improvement. At worst, the Court will uphold the state's power to hold seized property essentially indefinitely, and other states will see yet another odious opportunity.

Radley Balko is a senior editor at Reason magazine.

Comments

|9.8.09 @ 12:17PM|#

All perfectly legal, at least until now.

Not legal, under the constitution. Of course, government (including the legislature) routinely ignores the constitution, but that's not the same as it being legal. Even if the Supreme Court fucks this up the way they fucked up Kelo, taking someone's property like this will never be legal.

-jcr

Tomcat1066|9.8.09 @ 12:37PM|#

Honestly, I still don't see how anyone can see this as something other than bullshit. Taking property without cause can't be anything BUT wrong.

Ska|9.8.09 @ 12:44PM|#

Tomcat, why do you love the criminals so much? ;p

rob sama|9.8.09 @ 12:45PM|#

Typo:

"The opinion amounted to a light rebuke of one poriton of an unconscionable law."

BlueBook|9.8.09 @ 12:55PM|#

...on warrantless seizures of less than $20,000

Let me guess: the government, not the owner, decides what the seized property is worth? I don't suppose Illinoisians could get around this by putting lots of those little garage sale price stickers on everything, and writing in "$20,000.01" for each item?

|9.8.09 @ 1:12PM|#

"""U.S. v. One 1987 Jeep Wrangler."""

How do they expect the jeep to respond? Does the jeep get an appointed lawyer if it can't afford one?

Fluffy|9.8.09 @ 1:15PM|#

Forget the 14th Amendment, what about the 6th?

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The real problem is that we allow the pretense that the state can take property it claims is the proceeds of a crime without satisfying the requirements of the 6th Amendment first. The entire term "civil asset forfeiture" is a lie and a scam and a pretense. If the state says, "You committed a crime so we are taking your money!" that is a criminal proceeding, no if's and's or but's about it.

Anomalous|9.8.09 @ 1:29PM|#

Civil asset forfeiture absent a conviction is theft.

|9.8.09 @ 2:27PM|#

Perhaps the first thought is do we need a war on drugs? Why not just allow people to obtain durgs or medications as they desire? Our government has been trying to control our lives since 1910 when these stupid drug laws were passed. In Spain and India it is possible to by medication without prescription and I have not seen problems with those populations form a freely flowing drug situation. As a physician I know that those that desire to get hooked on narcotics will do so with or without the government supervision. Also, I have seen the real cost of this "war" with the numberous AIDS, hep C cases and the endocarditis caused by bad drugs and needles. Then there are the reactions to bad product. Our government is doing nothing to reduce this situation as they don't understand it is a personality problem and not one associated with the free flow of product.

|10.3.09 @ 11:35PM|#

David you have the most common sense approach to this problem that I have ever seen. Basically I totally agree with you the government should just leave people alone and allow them to deal with pain or the freedom to use drugs any way they want to.

|9.8.09 @ 2:35PM|#

Nice try, but this writer and the posters are living in some ivory tower fantasy land. I lived for many years in Venice CA. There were crack dealers all around us. I have children and I was forced to move. Drugs and sex were available at merely a whisper. People, yeah that's right ordinary citizens, were furious and demanded that something be done. As an irony I didn't live too far from the Reason headquarters. I'll bet they didn't go out alone at night. But I guess you don't care about children or personal safety. Have you ever been mugged and shot? I have. It is absolutely not that government is doing too much or abusing its power. They are not doing enough. Children should feel safe walking to school. I should have been able to walk a few blocks to the store without feeling the need to carry a gun, which I did. And that is what the State is trying to rectify. Restore public safety. This is a democracy and the majority are demanding it.

|10.3.09 @ 11:41PM|#

I understand your concerns about crack dealers being around you and your children, so why don't you and your neighbors that don't like these crack dealers in your neighborhoods go after these crack dealers together and make the crack dealers leave your neighborhood. Take a stand against these people and run them out of town, or at least your neighborhood. That would be a much better way of protecting both your children and your neighborhood. Instead of allowing the government to control every little aspect and freedom of our life, take responsibility for your own life and the lives of the people you love, as well as your neighborhood.

|10.14.09 @ 4:33PM|#

Your point is well made, but it is built on the notion that the police and government can be trusted to not abuse their authority.

Sadly, this is not the case in real life. Cops lie, governments manufacture evidence and throw roadblocks in the way of due process.

You want safer neighborhoods? Step away from the computer and get out to meet your neighbors. Find out who does and does not belong in the area. Organize a neighborhood watch program. Get properly trained and exercise your right to carry. In other words, take responsibility. By relying on government for help you are inviting abuse and incompetence.

Tomcat1066|9.8.09 @ 2:49PM|#

If laws stop people from committing crimes, then why don't the laws against shooting, mugging and raping people stop shootings, muggings, and rapes?

Those things are against the law, and should be against the law. Ingesting of a substance that doesn't to shit to anyone but yourself though? THAT escalated the drug war to the place where people get hurt.

Of course, the government's been spinning you that line of bullshit for so long, you're convinced it's cotton candy.

|9.8.09 @ 2:58PM|#

I should have been able to walk a few blocks to the store without feeling the need to carry a gun, which I did. And that is what the State is trying to rectify. Restore public safety.

The threat to public safety comes from the large and lucrative black market. A black market that has laughed off the most draconian attempts to crush it.

Perhaps, Erick, its time for Plan B? Black markets can't compete with legal markets, after all. The mob got out of the booze business when prohibition ended, and the violence associated with the booze business came to an end.

|10.3.09 @ 11:45PM|#

RC Dean you are correct, Prohibition stopped the killing and turf wars of the mobsters Alcohol trade in the 1920's and ending the prohibition on Marijuana and other drugs would also do the same with the gangs and weapons sales now.

|9.8.09 @ 3:17PM|#

This is a democracy and the majority are demanding it.

No, this is a republic you stupid fuck. Please don't procreate.

|9.8.09 @ 4:58PM|#

Trust me, the Illinois government sucks.

And this is the kind of environment our president learned how to be a politician. Why should be believe that he should behave any differently in respect to out Constitutional and basic civil and human rights?

|9.8.09 @ 6:07PM|#

My stupid son (stupid because he was careless) had a warrant served on his home. He had three pot plants growing in a little home-brewed grow-room in his closet.

He has never been charged with any crime, yet three months after the fact, the police still hold "as evidence" a collection of things from his home.

Unfortunately for me, this includes some things that I had loaned him: a couple of firearms, my good digital camera, etc.

The other day, he received this in the mail:

NOTICE OF PENDING FORFEITURE PURSUANT TO KSA 60-4109

STATE OF KANSAS
INDEPENDENCE POLICE DEPARTMENT

vs

$55.00 IN U.S. CURRENCY

I would have thought that since the currency was backed by the full faith and credit of the USA, that it's Federal power would have trumped that of the State ;^)

|10.3.09 @ 11:50PM|#

No actually you are wrong there the states power actually trumps the federal governments authority. That is the reason for the 10th Amendment. Another probably little known fact also is that the local County Sheriff is the highest law enforcement office in the land. The County Sheriff has more authority than the FBI IRS DEA or any little acronym these agencies wish to use.

|9.8.09 @ 7:54PM|#

This is one sick, twisted, criminal friggin system we got here. Any idea that this is okay, is warped. I don't care what they call it, it's blatant stealing, period. And no one has the right to take someone else s property, not even the government, that's sick. Is this what Amerika has become? Botched swat raids kill hundreds of innocent people each year, the government steals your property, and think it's legal, they lock up more people than the rest of the world combined, "land of the free" my ass. They send our armies to kill millions over sea's. They spray herbicide all over Columbia. What the hell have we become? This is a terrorist nation.

|10.3.09 @ 11:52PM|#

You are correct and the true terrorists is our own government.

robc|9.8.09 @ 9:33PM|#

Kant,

Is the $55 allowed to spend itself towards hiring a lawyer to defend itself?

jk|9.9.09 @ 6:57AM|#

Right and wrong have become meaningless.
The initiation of force or is wrong. Period.
Laws should only react to the initiation of force or fraud.
Laws like these allow people within the government to initiate force and fraud against the citizens, which in effect turns the government into a criminal enterprise, hiding behind The Law.

|9.9.09 @ 10:01PM|#

And that is what the State is trying to rectify. Restore public safety. This is a democracy and the majority are demanding it.

I'm sorry, Erick, by the time I got to the end of your comment I couldn't figure out what policy you were advocating to restore public safety. Was it cops shooting people without a warrant, or locking up all the people of the wrong race?

Seriously, you've identified a problem, but failed to elucidate why asset forfeiture without due process is the way to deal with the problem.

|9.11.09 @ 12:17AM|#

Ok, Erick let me try to understand your argument. Things are really bad because of criminals, so you want to arbitrarily deny people rights regardless of whether there is any evidence that they are criminals. In fact you want to deny them their property even if the evidence undeniably points to their innocence. As for the majority demanding it, if they demanded we kill the Indians would that be OK too?

Oh and if you really want to be safe, ending the WO(S)D would be a lot more effective than locking up some pothead's (or non-pothead's nobody will no for 6 months) El Camino.

|9.14.09 @ 4:28PM|#

Erick wrote:
"Drugs and sex were available at merely a whisper."

Yes, after prohibition, and the resultant criminal involvement.

You realize in the 1800s it was not illegal, and people who did these drugs were NOT surrounded by organized crime? Your experience is the very evidence against making vices into crimes. It 1. does not stop anyone at all, and 2. pushes people into the arms of organized crime, creating dangerous situations and threats to life and property.

It didn't work for alcohol, once we banned that suddenly gangsters were all over shooting each other, police agencies became corrupted. Crime and violence increased. Once it was legal those problems related to alcohol prohibition went away. Yet, drug prohibition is still creating those same problems. If it were not illegal, those problems would also go away.

These laws punish people with problems. I used to think drugs should be illegal too, until I had a close family member struggle with them, and I saw how the law did nothing but harm her and push her to the edges of society, making it impossible for her to get help. The law is hurting people, not helping them.

|9.15.09 @ 1:24PM|#

Erick's' comment remained me of living in the St Louis, Mo area across from IL. The police on either side of the river took the cars of many teenagers and held them for ransome. The police may have found some pot in the ashtray, could you prove they did not was the position many parents were placed in. The police did not go after criminals, drug lords, or any who could fight back. So many criminal used rental cars that the rental car companies had the laws amended to exclude their property from forfeiture. I always wondered at the silence of the ACLU to this violation of civil rights but since the victim was a generally clueless white teenager they could not have been less interested.

|10.5.09 @ 12:19PM|#

Joe O, I have to agree about the ACLU. I wonder if the ACLU and ACRON are tied in some how? In WA. state the tow compaies get to keep the vehicles seized by the police. It is very costly to get a vehilce out of impoundment. The police keep some vehilces but do not have the storage to keep alot of them.
Thanks for the thoughts.

Pingback| 10.1.09 @ 11:05AM

Hold On to Your Assets links to this page. Here’s an excerpt:

…true); Ultra Member   Join Date: Jan 2007 Location: Amarillo, TX Posts: 1,096 Hold On to Your Assets This month the Supreme Court will hear Alvarez v. Smith, " a challenge to the state of Illinois' Drug Asset Forfeiture Procedure Act (DAFPA)" which allows police to seize property and cash suspected to be involved in a drug crime. Such laws mean your property and cash can be taken and held unless you…

|10.5.09 @ 12:09PM|#

I am a retired peace officer and have never seen assests sized with out P/C. Of course I live in the state of Washington and that may make a difference? As far as I remember the amount of drugs would have to reach the felony stage. Of course the way to stop this program is YOUR VOTE and who you put into office. Now their is many times more Demo's then Repub's. If you voted them in vote them out. Prettry simple.

|10.14.09 @ 11:17AM|#

It would be nice if the Republicans were any more willing to speak out against this than the Democrats.

Tax levels and religious BS, etc, are all marginal. The worst excesses of government are completely bipartisan.

Pingback| 10.14.09 @ 9:32AM

The Agitator » Blog Archive » Morning Links links to this page. Here’s an excerpt:

…innocent after serving nine years for a robbery and shooting. The Supreme Court will hear oral arguments today in Alvarez v. Smith, a challenge to Illinois’ asset forfeiture law. My take on Alvarez here. Digg it  |  reddit |  del.icio.us  |  Fark This entry was posted on Wednesday, October 14th, 2009 at 9:31 am by Radley Balko and is filed under General Criminal Justice, General…

|10.14.09 @ 4:27PM|#

Legalized theft. That's all it is. How the hell did this EVER pass constitutional muster?

Yeah, I know all about the 'drug exception' to the bill of rights, but this is just flat out wrong. Bad enough the state gets to steal property for no reason at all, but then they make it nearly impossible to get it back.

How the hell is this legal?