Some question the drug-asset forfeiture law

Ariel Cheung, GateHouse Media
Macomb K-9 officer Lindsey May watches as K-9 officer Kappes, a German Shepherd mix breed, who sniffs and locates one ounce of cocaine in a suitcase during a training exercise Wednesday, Sept. 19, at the Maytag facility in Galesburg. Seven of the 38 regions analyzed by Gatehouse Media use a large portion of their drug forfeiture funds for the purchase and upkeep of K-9 units. Ten percent of funds in the region was used for K-9 units, which totaled $15,600 out of about $157,000 making it the fourth highest category of use of funds. JAKE MAY/The Register-Mail

Editor's note: This is the final part of a package on drug-forfeiture funds, which began yesterday.

Since the Institute for Justice's report was published, the Drug Asset Forfeiture Procedure Act underwent further scrutiny in a 2009 case that went before the U.S. Supreme Court.

Craig Futterman, a clinical professor of law at the University of Chicago Law School, and Thomas Peters filed a class action lawsuit against Chicago police and prosecutors, alleging that law enforcement officials were denying seized property owners due process by not allowing them the right to have a judge hear their case within a reasonable amount of time.

"There was no opportunity for a hearing after police took your property," Futterman said. "It would typically take a year or more — often three years — before the owner could say there's no probable cause to seize my car, or I need access to my car while this is pending."

In May 2008, the 7th U.S. Circuit Court of Appeals ruled that Illinois's drug forfeiture law denied owners their due process after their property was seized.

By the time the case reached the Supreme Court, however, all cases had been settled, and so the justices dismissed the case as moot.

Still, lawmakers opted to amend the law as a result of the case. In January, an amendment went into effect that requires a probable cause hearing to be held within 14 days of the seizure. A second amendment that allows for a hardship hearing within the following seven days went into effect in March.

The amendments addressed the situation in terms of providing at least constitutional due process, Futterman said. "Governments are not supposed to be able to take a person's property without due process of law."

Low standard of proof

While the amendments resulting from the Supreme Court case put an end to some of the controversy of the law, there are other aspects that still remain troublesome, Futterman said.

"It still hasn't removed the strong incentive for police and prosecutors," he said. "The obvious thing would be to remove the monetary incentives altogether. Remove the appearance of conflict of interest."

There is also a question of whether the standard of proof should be higher. In the Institute for Justice's report, Illinois is listed as one of 10 states with the lowest standard of proof in forfeiture laws.

"That's not high enough when you're talking about permanently depriving someone of their property," Futterman said.

Only Nebraska, North Carolina and Wisconsin require there to be proof beyond a reasonable doubt for forfeiture. The majority of states require preponderance of the evidence.

Still, the funds to further drug enforcement mean a lot to the law enforcement agencies.

"My philosophy is that people doing drugs are doing other things — burglaries, robberies — to get the money for their drugs," Barker said. "So by going after the drugs, we're lowering crime in other areas."

See drug seizure spending in 11-county data base

Newspapers in an 11-county area that make up GateHouse's Western Illinois Division have completed an in-depth news project looking at spending of money seized in drug busts. The project includes an 11-county searchable data base Each city police department, sheriff's office and state's attorney's office gets a share of the seized money. The project gathered itemized expenditures from 38 agencies in the 11 counties between Aug. 1, 2011, and July 31, 2012. The counties include Fulton, Henderson, Henry, Knox, Livingston, McDonough, Mercer, Peoria, Tazewell, Warren and Woodford. (Chillicothe Police Department is the only agency included from Peoria County.)