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Chapter 725 - Criminal Procedure
Question My car got towed from a parking lot at an apartment complex. Finally, anybody who tows must be licensed. More information about text formats. Web page addresses and e-mail addresses turn into links automatically. Leave this field blank.
Thank you for taking the time to respond so thoroughly. I did return after paying to get my car back. I slowly drove through taking pictures and filming every possibly route that I could take to reach my friends apartment building. I Still have all of my video files, reports, pictures and other documentations, but I have run into a lot of extra bad luck in other aspects of my life since and have never taken any action.
I really do appreciate your information and you time in helping me. I guess this will have to be another thing I just have to let go and get over. The response was negative across all political affiliations: 89 percent of registered voters opposed property seizures without a conviction. This includes 93 percent of Democrats, 86 percent of Republicans and 89 percent of Independents.
Having heard about instances of forfeiture abuse in Illinois and nationally, voters are ready for reform. This paper examines the state of forfeiture law in Illinois, how much property Illinois law enforcement agencies seize through asset forfeiture and where, and suggests a path to reform. Practically any type of property may be forfeited, including cash, a vehicle, personal property, or even real estate. Seizure of property occurs when the police or another arm of state or local government takes custody of private property, and is generally authorized whenever an officer has probable cause to believe that the property was derived from, or used in the commission of, a crime.
After seizure, the government may seek forfeiture of the assets; in a judicial or quasi-judicial forfeiture proceeding, the government seeks to permanently deprive a person of the property. If the government succeeds in the forfeiture action, then legal title to the property will be transferred from the property owner to the government.
Criminal forfeiture laws provide that forfeiture proceedings are part of, or ancillary to, a criminal prosecution, often before the same judge and jury, and require the defendant to be found guilty of the charged offense beyond a reasonable doubt before the court orders the forfeiture of property. Some states, but not Illinois, have adopted a hybrid approach, allowing property to be forfeited in a civil rather than a criminal proceeding, but requiring that, before property can be permanently forfeited to the state in the civil proceeding, the owner or another person must have been convicted of a criminal offense.
Outside of forfeiture cases, most civil actions in American courts are in personam : lawsuits filed against a specific person or persons, who must be joined as parties and served with a summons and complaint to give the court jurisdiction to try the case. A judgment in rem operates directly on the property itself and is enforceable against the world at large.
Federal forfeiture law provides a narrow exception, under which the court has discretion to appoint counsel for a property owner if there is a related criminal matter in which that person is represented by the federal defender. The federal system also gives a person the right to have counsel appointed if he or she is using the property as a primary residence.
Judicial forfeiture proceedings, whether civil or criminal, involve the determination by a judge that the government has met, or has failed to meet, its evidentiary burden of proving that the property is subject to forfeiture under the relevant law. Forfeiture statutes generally provide that, in order to prevail in a forfeiture action, the government has the burden of proving that the property at issue either derived from the proceeds of a crime or was used in the commission of the crime.
Different forfeiture laws require different standards of proof for the government to meet its burden in a forfeiture case. A commonly used standard in forfeiture cases is preponderance of the evidence  the claim is more probably true than not , which is the usual standard for a plaintiff to meet his or her burden in a civil lawsuit. But some laws require only that the government show probable cause that the property in question is subject to forfeiture. Forfeiture laws also vary as to what becomes of property after it is declared forfeited by a court.
Usually the property is to be sold at auction, after which the proceeds may be deposited into law enforcement budgets as in most states, including Illinois ,  general revenue funds,  or diverted to one or more special-purpose funds,  depending on the requirements of the relevant statutes.
State and local law enforcement authorities also seize property in cooperation with the federal government, through a process called equitable sharing. Local agencies may keep up to 80 percent of these forfeited funds. Property may be subject to equitable sharing if it is seized by a joint task force that includes both federal and state or local officers, or if it is seized as part of a joint investigation by federal and state or local authorities.
Currently, there are numerous laws throughout the Illinois Compiled Statutes that pertain to forfeiture. These include:.
Forfeiture is authorized for property derived from or used in the commission of any violation of the Illinois Controlled Substances Act or the Methamphetamine Control and Community Protection Act, including the simple possession no intent to deliver of any quantity of a controlled substance  or methamphetamine. The Drug Asset Forfeiture Procedure Act sets forth the procedures for civil forfeitures authorized under the above-mentioned drug statutes. Article 36 of the Illinois Criminal Code  authorizes seizure and forfeiture of a vehicle, vessel or aircraft on the basis of the property allegedly having been used in the commission of any of a long list of assorted crimes, including driving offenses such as DUI or driving on a suspended license, violent crimes such as murder and rape, certain firearms offenses, and several property crimes.
The statute also sets forth the procedures for seizures and forfeitures of property under Article Several other statutes that authorize seizure and forfeiture of property including, in some cases, other types of property besides vehicles, vessels and aircraft explicitly provide that forfeiture under those statutes shall happen in accordance with the procedures set forth in Article While the statute authorizes forfeiture proceedings instituted in connection with a criminal prosecution for money laundering, it also authorizes a civil in rem forfeiture action to be instituted independent of, or even in the absence of, any criminal prosecution.
The RICO law provides that a violation may subject property to seizure and forfeiture, in accordance with the procedures provided under the money laundering law. This statute provides for criminal forfeiture when a person is convicted of narcotics racketeering. It provides for the forfeiture of any property, profits or proceeds or property interest he or she has acquired or maintained through the violation, and property used to facilitate a narcotics racketeering violation.
In addition to the laws enumerated above, there are numerous other Illinois statutes authorizing the seizure and forfeiture of property on the basis that the property is connected to some violation of the law.
The Illinois Compiled Statutes
The forfeiture process usually begins when property is seized by a police officer who believes the property is involved in criminal activity. The property might be seized directly from the owner, but may just as easily be seized from another person having possession e. After the property is seized, the owner has no legal recourse to seek the return of the property until a preliminary hearing at least 14 days after the seizure.
At trial, the government is supposed to prove that the property was involved in a crime — although at no point must it be proved that the owner committed the crime, or even knew about it. Despite the usual rule barring admission of hearsay testimony, the prosecutor — but not the property owner — can admit hearsay evidence in the case.
If the court finds that the state has met its low burden, then the owner is placed in the untenable position of having to prove his or her innocence. No additional compensation is available for having been wrongfully deprived of possession of the property, however long it was in the custody of the authorities. Criminal forfeiture in Illinois is the exception rather than the rule. However, other Illinois forfeiture laws, including the Drug Asset Forfeiture Procedure Act, money laundering statute and Article 36 of the Criminal Code, do not require a criminal conviction as a prerequisite to forfeiture; in fact, there is no requirement that any person ever be arrested or charged with any offense before the state can take away property through civil asset forfeiture under those statutes and others.
The Drug Asset Forfeiture Procedure Act and money laundering law each authorize nonjudicial forfeiture. Under those statutes, seized property will be automatically forfeited without judicial involvement unless the owner has, within 45 days of the state sending him or her notice of the proceeding, filed a verified answer with the court and posted a cost bond equal to 10 percent of the value of the seized property.
In those cases, a hearing is required at which the state must prove its case in order to prevail. Vehicles, vessels and aircraft are excluded and may be the subject of nonjudicial forfeiture irrespective of their value. In , precipitated by a due process challenge to Illinois drug forfeiture laws,  a new law was enacted requiring that seizures under the Drug Asset Forfeiture Procedure Act and under Article 36 shall trigger a preliminary hearing, required to take place within 14 days of the seizure, at which the state must make a showing of probable cause for the seizure to a judge before the case can proceed to a nonjudicial forfeiture.
The rules of evidence do not apply in these preliminary hearings. The money laundering statute, however, was not amended as part of the reform; no preliminary hearing is currently required by statute in forfeiture proceedings brought under that law. Failure to post the bond will result in nonjudicial forfeiture of the property. Most Illinois forfeiture laws at least ostensibly place the burden of proof on the state to prevail in its case in order to prevail in a forfeiture action. While most Illinois forfeiture laws purport to require the state to prove its case to prevail in a forfeiture action, the reality is that, in order to avoid forfeiture of his or her property, an owner who protests that he or she is innocent of any criminal wrongdoing actually has the burden of proving that he or she was innocent.
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Astonishingly, in some cases, the owner must even prove that he or she could not possibly have known about the alleged wrongdoing. The laws of evidence relating to civil actions shall apply to all other portions of the judicial in rem proceeding. In some cases, the law requires a portion of the proceeds to be set aside for a special purpose.
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For instance, under Section B of the Code of Criminal Procedure, 50 percent of the proceeds of assets forfeited in connection with a prosecution for involuntary servitude, human trafficking or a related offense must be deposited into the Specialized Services for Survivors of Human Trafficking Fund. Unlike other Illinois forfeiture statutes, Article 36 provides no fixed formula for dividing proceeds of property forfeited under that law. Law enforcement agencies that seize property under the drug statutes,  the money laundering law,  and select provisions of Article B of the Code of Criminal Procedure  are required to report to the Illinois State Police certain basic information about the seized property.
There is, however, no requirement that these data be made public or reported to state lawmakers and executive branch officials. Nor does the law require that the scant amount of information that is collected be aggregated or sorted in any particular form, nor that it be kept for any particular length of time. While a member of the public can access the information by issuing records requests to the State Police under the Freedom of Information Act, the available data paint an incomplete and somewhat confusing picture.
No data about these seizures or forfeitures are available through the State Police, with the exception of property seized by the department itself. Furthermore, law enforcement agencies are not required under any law to report or account for their expenditures of monies received from distributions of forfeiture proceeds. Exactly how much private property has been taken from Illinois residents? The data below give a broad overview of both asset seizures and forfeitures that have taken place in Illinois. The data were provided in response to a Freedom of Information Act request to the Illinois State Police for state seizure and forfeiture information and the United States Department of Justice for federal seizures and forfeitures that have taken place in the state of Illinois.
These data have limits. For one, many seizures and forfeitures of property, such as those authorized under Article 36 of the Criminal Code, are not required to be reported by the seizing law enforcement agency to the State Police at all, and therefore are not included here. On the federal level, between and , just 13 percent of forfeitures were criminal, while the overwhelming majority, 87 percent, were civil forfeitures.
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These data also do not tell how many of the seizures were contested by property owners, or how many were nonjudicial forfeitures. The totals below describe the number of reported seizures — discrete interactions where law enforcement physically took private property under state or federal law — and the value of the property seized values are exact for seized cash but estimated for vehicles and other forms of property.
This report also includes data on forfeitures — assets that a court has adjudicated can be permanently kept by the government following seizure.