Illinois Senate Committee Passes Bill Taking on Asset Forfeiture, Closing Federal Loophole

SPRINGFIELD, Ill. (April 10, 2017) – Last week, an important Illinois Senate committee passed a bill that would reform the state’s asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most cases. The legislation also takes on federal forfeiture programs by banning prosecutors from circumventing state laws by passing cases off to the feds.

A bipartisan coalition of five senators introduced Senate Bill 1578 (SB1578) in February. The legislation would reform Illinois law by requiring a criminal conviction before prosecutors could proceed with asset forfeiture in most situations. Under current law, Illinois law enforcement can take property even if a person is never found guilt of a crime, or even charged.

The legislation would also establish an asset forfeiture proceeds fund for collection and distribution of asset forfeiture proceeds. Currently Illinois law enforcement agencies can keep up to 90 percent of forfeiture money. This change would reduce the perverse policing for profit incentives in the current law.

SB1578 includes extensive reporting requirements law enforcement agencies engaged in asset forfeiture would have to follow.

The Senate Judiciary Committee passed SB1578 by a 7-2 vote.

ADDRESSES FEDERAL PROGRAMS

SB1578 also closes a loophole that allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government under its Equitable Sharing forfeiture program. The proposed law would specifically prohibit this practice in most cases.

"No State, county, municipal law enforcement agency, or prosecuting authority may enter into an agreement to transfer or refer seized property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint taskforce, or by any other means for the purposes of forfeiture litigation, and instead shall refer the seized property to appropriate local or State prosecuting authorities for forfeiture litigation under this Article, unless the seized property includes U.S. currency in excess of $100,000."

The proposed law would also require equitable sharing funds to be deposited in the asset forfeiture proceeds fund.

The inclusion of provisions barring state and local law enforcement agencies from passing off cases to the feds is particularly important. In several states with strict asset forfeiture laws, prosecutors have done just that. By placing the case under federal jurisdiction, law enforcement can bypass the need for a conviction under state law and collect up to 80 percent of the proceeds from forfeited assets via the federal Equitable Sharing Program.

For example, California previously had some of the strongest state-level restrictions on civil asset forfeiture in the country, but law enforcement would often bypass the state restrictions by partnering with a federal asset forfeiture program known as “equitable sharing.” Under these arrangements, state officials would simply hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law banned or limited the practice. According to a report by the Institute for Justice, Policing for Profit, California ranked dead last of all states in the country between 2000 and 2013 as the worst offender. During the 2016 legislative session, the state closed the loophole.

As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its deplorable “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

WHAT’S NEXT

SB1578 now moves to the full Senate for further consideration. A similar bill is working its way through the Illinois House.