To most of us, it comes as no surprise that law enforcement has the authority to engage in criminal forfeiture to seize property that was used to commit a crime; for example, the car used to transport cocaine.1 What perhaps does come as a surprise is that law enforcement also uses a lesser-known device called "civil asset forfeiture" to seize property involved in the commission of a crime.2 Civil asset forfeiture is not new to the United States; Union authorities used civil asset forfeiture during the Civil War to seize confederate resources and the Arlington home of General Robert E. Lee.3 But like Civil War, civil asset forfeiture is civil in name only.
Take, for example, the Drug Asset Forfeiture Procedure Act of Illinois [hereinafter DAFPA], which allows prosecutors to bring civil forfeiture actions in rem.4 In rem proceedings distinguish the identity of an object from the identity of the individual who holds an interest in that object.5 As such, the guilt or innocence of the property owner is not an issue in civil asset forfeiture proceedings under DAFPA,6 and "the State never need show any connection between the property and a particular person."7
DAFPA permits the forfeiture of8 assets that have facilitated a violation of the Illinois Controlled Substances Act,9 the Cannabis Control Act,10 or the Methamphetamine Control and Community Protection Act.11 In rem actions, such as forfeitures under DAFPA, are brought to prosecute things, and unlike people, things have no constitutional rights.12 Thus, for purposes of DAFPA, there exists no jury trial right, nor a right to an attorney, and "all relevant hearsay evidence and information"13 must be considered without regard to the right to cross-examine.14
Another significant safeguard typically afforded to the criminally accused but absent in forfeiture proceedings is the proof beyond a reasonable doubt standard, which for DAFPA purposes, has been replaced with a probable cause standard.15 And to demonstrate probable cause under DAFPA, the State must show "only some nexus, not a substantial connection" between the property seized and the illegal activity in violation of the given offense.16
Most states have statutes similar to DAFPA, and most of these statutes impose a heavier burden on the prosecution than probable cause.17 Approximately 15 states require proof beyond a reasonable doubt and more than 20 states require proof based on a preponderance of evidence.18 Fewer than 15 states require only probable cause to execute a civil asset forfeiture.19 Unfortunately, Illinois is among these states.20 DAFPA is also atypical in that it permits civil asset forfeiture without a warrant21 and without a judicial determination.22
If and when the State convinces the court of probable cause, the burden of proof shifts from the State to the property owner and raises from a probable cause standard to a preponderance of evidence standard. 23 From here, the property owner claimant must prove based on a preponderance of the evidence that claimant’s property was not subject to forfeiture under DAFPA to retrieve any seized assets.24
Property owners should not bare the burden of DAFPA, but instead challenge DAFPA forfeitures under the proportionate penalties clause of the Illinois Constitution, because as an Illinois Court of Appeals articulated, civil asset forfeiture "may technically be civil in form, but courts have long recognized it is criminal in nature; its only objective, like a criminal action, is to penalize unlawful activity."25
Article I, Section 11 of the Illinois Constitution states, "All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship."26 The first hurdle of the proportionate penalties analysis is to establish the existence of a penalty, in other words a "direct action[ ] by government to inflict punishment."27
Forfeitures under DAFPA should be considered penalties for purposes of the proportionate penalties clause because Illinois courts have consistently agreed that civil asset forfeitures are not typical civil actions.28 The U.S. Supreme Court, as well, has dispelled the notion that the consequences of civil actions are necessarily non-punitive: "The term ‘penalty’ involves the idea of punishment, and its character is not changed by the mode in which it is inflicted, whether by a civil action or a criminal prosecution"29 The fact that prosecutorial actions under DAFPA are considered civil rather than criminal should not detract from the punitive character of forfeitures under the authority of DAFPA.
DAFPA does not create any substantive law, but adds teeth30 to drug criminalizing statutes that are designed to punish.31 The legislative intent of the Illinois Controlled Substance Act is to "penalize most heavily the illicit traffickers or profiteers of controlled substances, who propagate and perpetuate the abuse of such substances."32 As well, the Illinois legislature means "to establish a reasonable penalty system" with the Cannabis Control Act.33
At the most basic level, DAFPA intends to deter34 criminal violations and provides the possibility of forfeiture as an additional punitive consequence for acting in violation of criminal statutes.35 In short, to divorce DAFPA from the concept of punishment is to divorce DAFPA from reality. As such, the Illinois Supreme Court should consider DAFPA forfeitures punishment for purposes of the proportionate penalties clause of Article I, Section 11 of the Illinois Constitution.
Further, Illinois courts have held that forfeiture constitutes punishment in contexts outside of civil asset forfeiture. When one Illinois court was presented with the question of whether withholding a firefighter’s salary for disciplinary reasons constituted a penalty, the court interpreted the word penalty "to include fines, forfeiture and other forms of punishment."36 The Illinois Supreme Court held that37 "a forfeiture is defined as a punishment annexed by law to some illegal act or negligence in the owner of lands, tenements, etc., whereby he loses all his interest therein and they become vested in the party injured as a recompense for the wrong which he alone hath sustained."38 And Black’s Law Dictionary defines forfeiture as the "loss of some right or property as a penalty for some illegal act."39 Because civil asset forfeiture by its very definition is considered a punishment, DAFPA should implicate the "proportionate penalties" clause in Section 11 of the Illinois Constitution.
Although the "proportionate penalties" clause is not well used in Illinois jurisprudence, Illinois courts have held several statutes unconstitutional pursuant to the "proportionate penalties" clause of the Illinois Bill of Rights.40 A penalty for failure to hold a firearms owners identification card by a felon violated the "proportionate penalties" clause, because it carried a more severe penalty than unlawful use of a weapon by a felon. 41 As well, a theft by deception penalty violated the "proportionate penalties" clause because an individual caught stealing $5,000 (from the elderly) faced a maximum of seven years in prison, while an individual caught stealing $301 (from the elderly) faced a maximum of ten years in prison.42
The policy underlying the "proportionate penalties" clause is violated "if the penalty prescribed for an offense were not as great or greater than the penalty prescribed for a less serious offense."43 However, DAFPA prescribes penalties with no consideration of the seriousness of the offense; as the U.S. Supreme Court articulated, "[f]orfeiture of property . . . [is] a penalty that ha[s] absolutely no correlation to any damages sustained by society or to the cost of enforcing the law."44 Further, the U.S. Supreme Court explained that property that is subject to forfeiture "can vary so dramatically that any relationship between the Government’s actual costs and the amount of the sanction is merely coincidental."45
Punishment pursuant to DAFPA is unique in that virtually every forfeiture carries a different degree of severity, because the value of the goods forfeited is not correlated to the severity of offense (as constitutionally required).46 The structure of DAFPA opens the door to greater punishments for less serious offenses (as well as lesser punishments for more serious offenses). Therefore, DAFPA contradicts the proportionate penalties clause of the Illinois Constitution. Article I, Section 11 commands that "all penalties shall be determined by the seriousness of the offense,"47 but the penalties prescribed by DAFPA cannot possibly be proportional because DAFPA forfeitures are often based on fortuitous circumstances.48
Compare, for example, the case of People v. 1988 Mercury Cougar with People v. 1946 Buick, VIN 34423520. 1988 Mercury involved a traffic stop of the owner and driver of the vehicle Kenneth McGowan.49 As police approached the 1988 Mercury Cougar, McGowan attempted to hide four tenths of a gram of cocaine beneath the passenger side rear floor mat.50 The Illinois Supreme Court upheld the forfeiture of McGowan’s 1988 Mercury, because the vehicle "facilitated" in McGowan’s criminal possession of cocaine.51
As the 1988 Cougar Court admitted, "[t]he facts of this case are remarkably similar to the facts of 1946 Buick."52 In 1946 Buick, Samuel Smith was also pulled over in a routine traffic stop.53 As two police officers approached the 1946 Buick Samuel Smith, in the driver’s seat, emptied one third of a gram of cocaine on the floor of the vehicle.54 Here too, the Illinois Supreme Court held Smith’s Buick must be forfeited, as it facilitated in Smith’s unlawful possession of cocaine.55
Samuel Smith and Kenneth McGowan committed actions in violation of the same offense of the Illinois Control Substance Act: possession of less than one gram of cocaine.56 However, the penalty that followed the same conduct was far from equal.57
Mr. McGowan and Mr. Smith were alleged to violate the same offense, but their respective punishments were not determined by the severity of their offense, because DAFPA does not recognize that each asset is distinct in value or that the values of assets vary widely. The mechanics of DAFPA necessarily result in disproportionate penalties, because penalties are based on fortuitous circumstances. To pretend that seizing cars that facilitated drug possession is not punishment requires an unnecessary suspension of disbelief. Illinois courts should consider civil asset forfeiture punishment for proportionate penalties purposes or lay to rest the falsity of "civil" forfeiture entirely.
Illinois citizens should also turn to the Illinois Constitution, because in the setting of civil forfeiture, federal courts are reluctant to provide relief (as illustrated by a recent DAFPA challenge, which the U.S. Supreme Court dismissed on mootness grounds).58 Article I, Section 11 is especially fitting for challenges to DAFPA authorized forfeitures, because in rem civil asset forfeiture is for all intents and purposes punishment. In the context of the proportionate penalties clause, the central question is whether forfeitures under DAFPA have been set by the legislature according to the seriousness of the offense.59 Because DAFPA prescribes punishment without regard to the seriousness of the offense, DAFPA is inconsistent with the spirit and the letter of the proportionate penalties clause of the Illinois Constitution.
1 People v. 1988 Mercury Cougar, 607 N.E.2d 217, 219 (Ill. 1992).
2 Dee R. Edgeworth, Asset Forfeiture Practice and Procedure in State and Federal Courts, 8 (2d ed. 2008).
3 See United States v. Lee, U.S. 196 (1882)(addressing the seizure of the Arlington home of General Robert E. Lee).
4725 Ill. Comp. Stat. 150/1 (2007).
5With respect to in rem forfeitures, "[t]he subject of the lawsuit is the property itself and becomes the party of litigation." Dee R. Edgeworth, Asset Forfeiture Practice and Procedure in State and Federal Courts, 2 (2d ed. 2008).
6 "Guilt or innocence is not at issue, only whether the forfeitable property was used in the commission of an offense." In re Twenty-Seven Thousand Four Hundred Forty Dollars, 517 N.E.2d 704, 706 (Ill.App. Ct., 3d Dist. 1987).
7 See People v. One 1979 Chevrolet Camaro, 420 N.E.2d 770 (Ill. App. Ct., 3d Dist. 1981)(upholding the forfeiture to the state of Illinois a vehicle belonging to Mitchell Francoeur although the state of Illinois abandoned prosecution of Francoeur).
8 725 Ill. Comp. Stat.150/3 (2007)(DAFPA is triggered by the violation of the Illinois Controlled Substance Act, Cannabis Control Act, and Methamphetamine Control and Community Protection Act.).
9 720 Ill Comp. Stat. 570/100 (2008).
10 720 Ill. Comp. Stat. 550/1 (2007).
11 720 Ill. Comp. Stat. 646/70 (2008).
13 725 Ill. Comp. Stat. 150/9(B) (2007); People v. $280,020 U.S. Currency, 866 N.E.2d 1232, 1243. (Ill. App. Ct., 1st Dist. 2007)..
14 William J. Haddad, Challenging Property Seizures Under Illinois Civil Asset Forfeiture Law 92 Ill. Bar J. 365, 368.
16 People v. $1,124,905 U.S. Currency & One 1988 Chevrolet Astro Van, 685 N.E.2d 1370, 1381 (Ill. 1997); see also People v. 1991 Dodge Ram Charger, 620 N.E.2d 448, 452 (Ill. App. Ct., 2d Dist. 1993)().
17 Dee R. Edgeworth, Asset Forfeiture Practice and Procedure in State and Federal Courts, 245 (2d ed. 2008).
18 Dee R. Edgeworth, Asset Forfeiture Practice and Procedure in State and Federal Courts, 245 (2d ed. 2008);.
19Several states require an elevated standard of proof for forfeitures of real property. Dee R. Edgeworth, Asset Forfeiture Practice and Procedure in State and Federal Courts, 245 (2d ed. 2008).
20 725 Ill. Comp. Stat. 150/9(G) (2007).
21 725 Ill. Comp. Stat. 150/1 (2007).
22A judicial determination is not mandatory when the property owner or interest holder does not file a claim and a cost bond within 45 days of the effective date of notice or when seized assets constitute real property or are valued greater than $20,000. 725 Ill Comp. Stat. 150/9 (2007).
23The property owner’s burden is more rigorous than the state’s burden. 725 Ill Comp. Stat. 150/9(G) (2007)
24725 Ill Comp. Stat. 150/9(G) (2007); 725 Ill Comp. Stat.150/8 (2007).
25 People v. Mudd, 370 N.E.2d 37, 39 (Ill. App. Ct., 1st Dist. 1977). Property subject to forfeiture under DAFPA is almost exclusively derivative contraband. 725 Ill. Comp. Stat. 150/2 (2007).
26 Ill. Const. art. I § 11.
27 In re Rodney H., 861 N.E.2d 623, 628 (Ill. 2006).
28 See, e.g., People v. Earl, 459 N.E.2d 342, 345 (Ill. App. Ct., 3d Dist. 1984) also see People v. Mudd 370 N.E.2d 37, 39 (Ill. App. Ct., 1st Dist. 1977).
29 U.S. v. Chouteau, 102 U.S. 603, 611 (1880).
30 There must exist a violation of a substantive criminal statute to trigger the Drug Asset Forfeiture Procedure Act. 725 Ill. Comp. Stat. 150/2 (2007).
31 720 Ill Comp. Stat. 550/1 (2007); 725 Ill Comp. Stat 150/1 (2007).
32 720 Ill Comp. Stat. 570/100 (2008).
33 720 Ill Comp. Stat. 550/1 (2007).
34 725 Ill. Comp. Stat. 150/2 (2007). (permitting the forfeiture of assets that facilitated the violation of the Controlled Substance Act, the Cannabis Control Act, and the Methamphetamine Community Protection Act).
36 Wilkes v. Deerfield-Bannockburn Fire Protection Dist., 399 N.E.2d 617 (Ill. App. Ct. 2d Dist. 1979).
37 Patterson v. Northern Trust Co., 132 Ill.App. 208, (Ill. App. Ct., 1st Dist. 1907 (WL 1692) (defining forfeiture in the context of a mortgagor-mortgagee relationship).
39 Black’s Law Dictionary 650 (6th ed. 1990).
40 See, e.g. People v. Davis 687 N.E.2d 24 (Ill.1997).
41 People v. Davis 687 N.E.2d 24 (Ill.1997).
43 People v. Tooley, 766 N.E.2d 305 (Ill. App. Ct., 3d Dist., 2002).
44 U.S. v. Ward, 448 U.S. 242, 254 (1980).
45 Austin v. United States, 509 U.S. 602, 622, n.14 (1993).
46 People v. 1988 Mercury Cougar, 607 N.E.2d 217, 219 (Ill. 1992). People v. 1946 Buick, VIN 34423520, 537 N.E.2d 748, 749 (Ill. 1989).
47 The change in language perhaps suggests a harder look is warranted. Ill. Const. of 1969, art.1, § 11 (1970).
48 People v. 1988 Mercury Cougar, 607 N.E.2d 217, 219 (Ill. 1992). People v. 1946 Buick, VIN 34423520, 537 N.E.2d 748, 749 (Ill. 1989).
49Compare People v. 1988 Mercury Cougar, 607 N.E.2d 217, 219 (Ill. 1992) with People v. 1946 Buick, VIN 34423520, 537 N.E.2d 748, 749 (Ill. 1989).
53 People v. 1946 Buick, VIN 34423520, 537 N.E.2d 748, 749 (Ill. 1989).
55 Id, at 750.
56 People v. 1988 Mercury Cougar, 607 N.E. 217, 219 (Ill. 1992); People v. 1946 Buick, VIN 34423520, 537 N.E.2d 748, 749 (Ill. 1989).
58 E.g., Alvarez v. Smith, 130 S.Ct. 576, 580-81 (2009).
59People v. Moss, 206 Ill. 2d 503, 522 (Ill. 2003).
Zachary Townsend is a Juris Doctor candidate at Northern Illinois University College of Law and currently clerks for the 15th judicial circuit of Illinois. He also serves as a research assistant to Professor Jeffrey Parness.