COUNTERPOINT: Is asset forfeiture a proper means of enforcing the law?

Reform is necessary to protect the rights of innocent parties

By STEVEN M. WALLACE
    Asset seizure and forfeiture is a powerful tool available to federal and state law enforcement officials. The applicable laws permit seizure and retention of assets by law enforcement if they suspect those assets are connected to criminal activity. Those laws are designed to deter crimes and punish lawbreakers by depriving them of property related to crimes. However, the enabling statutes are broad enough to sweep up assets owned by innocent third parties, who bear the ultimate burden of proving they had no knowledge or reason to know their property was used in connection with a crime. As applied, and in light of the less stringent standard of proof applied to the government, the laws can unduly tread on the due process rights of innocent third parties, and, therefore, must be reformed.
    Historically, asset seizure and forfeiture has roots in maritime law, which permitted seizure of vessels and cargo for customs and similar violations. The laws at the time permitted the government to proceed against the asset, not the owner, as though the property had committed a crime. Over time, forfeiture laws, at both the federal and state levels, expanded to encompass more and more assets connected to criminal activity, including assets owned by innocent third parties. Without question, forfeiture laws are punitive in nature, and are by no means designed for the purpose of compensating the government for loss or harm. However, under existing state and federal law, forfeiture proceedings are civil, not criminal, cases, and, therefore, the government is not required to prove its case “beyond a reasonable doubt.” Instead, the government must only prove it is more likely than not the property was used in connection with criminal activity.
    Several Illinois statutes describe the circumstances under which assets connected with criminal activity may be seized by law enforcement. For example, “[a]ny vessel or watercraft, vehicle, or aircraft, may be seized and impounded by [law enforcement] if the [it] is used with the knowledge of the owner in the commission of or in the attempt to commit [certain criminal activities] . . .” Within 14 days following seizure of the property, the state’s attorney is required to “seek a preliminary determination from the circuit court as to whether there is probable cause that the property may be subject to forfeiture.” Once the court makes a finding of probable cause, it is required to “order [the seized property] held until the conclusion of [the] forfeiture proceeding.” The statute offers temporary relief from the forfeiture if the owner of the property can demonstrate the existence of a substantial hardship. See 720 ILCS 5/36-1 et seq.
    Once probable cause is established, the state is required to bring a civil action for forfeiture in which it is required to establish by only a preponderance of the evidence that the asset seized was used in the commission of a crime. An innocent owner of the property may show, by a preponderance of the evidence, that he or she did not know and had no reason to know his or her property was used in connection with commission of a crime. In other words, the state is only required to prove it is more likely than not the property was used in the commission of a crime – it is not required to prove it “beyond a reasonable doubt” as would be the case in criminal proceedings. The ability of an innocent owner to present his or her case is cold comfort because in order to prevail, an innocent owner is required to prove a negative: either lack of knowledge or lack of reason to know. In most cases, it is nearly impossible to prove, even by a mere preponderance of the evidence, lack of knowledge or lack of reason to know. Furthermore, an innocent owner may have scant funds and, therefore, be unable to retain counsel in order effectively participate (since forfeiture proceedings are civil cases, the Constitution does not require appointment of counsel). Thus, once an asset is seized, the deck is effectively stacked against an innocent property owner.
    Recently, the United States Supreme Court had occasion to address a particularly compelling example of forfeiture law at work. Leonard v. Texas involved a routine traffic stop, during which the police found a safe that contained $201,100 and a bill of sale for a home in Pennsylvania. The mother of one of the occupants of the vehicle claimed ownership of the money and bill of sale. Nonetheless, the trial court issued a forfeiture order, from which the mother appealed. The case ultimately made its way to the Supreme Court, where the mother urged her due process rights were violated. The Supreme Court did not hear the case since the mother failed to raise the issue of due process in the lower court. Justice Clarence Thomas, however, set his sights of forfeiture laws in a written statement: “Civil proceedings often lack certain procedural protections that accompany criminal proceedings, such as the right to a jury trial and a heightened standard of proof . . . Partially as a result of this distinct legal regime, civil forfeiture has in recent decades become widespread and highly profitable . . . These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings . . .”
    The bottom line is that the forfeiture laws must be reformed in order to afford those affected by them due process and the protections typically offered defendants in criminal proceedings. For starters, forfeiture proceedings, which are punitive in nature, must be treated as criminal cases in which the government is required to prove its case beyond a reasonable doubt. Moreover, the burden of proving lack of knowledge or lack of reason to know should not be foisted on those who had no part to play in any alleged criminal activity. Finally, since forfeiture proceedings are in the nature of criminal cases, in all instances property owners should have the right to a trial by jury.
    Steven M. Wallace is an attorney in the Edwardsville office of HeplerBroom, LLC.