POLICE FOR PROFIT

A big property seizure case hits the Supreme Court.

With states and cities struggling with deficits, one fertile source
of revenue has been money or property seized by police in possible
connection with crimes. Not to be left behind, Illinois has pursued
this tactic aggressively, using a law which encourages both police
departments and prosecutors to take property for forfeiture, long
before the accused ever get their day in court.

This practice was challenged at the Supreme Court recently in Alvarez
v. Smith, where six people allege that police use of the Illinois
Drug Asset Forfeiture Procedure Act violated their right to due
process under the Fourteenth Amendment. Though forfeiture laws are
designed to strip criminals of ill-gotten gains, three of the six
were never charged with a crime. All six had their property or money
taken without a warrant and had to wait for months or years without a
hearing on the legitimacy of the forfeiture.

By now, the individual cases in Illinois have been resolved with
either a forfeiture or a return of the property, leading the Justices
to question during oral argument whether the case should be dismissed
as moot. Whether the court considers the details in Alvarez, the
court will soon need to resolve when detention of property violates
due process.

Under Illinois law, the state has 187 days after property is seized
to file forfeiture proceedings. Meanwhile, of forfeited funds seized,
25% lands in the lap of the prosecutor's office. Another 65% goes to
the department that seized the property, giving police added
incentive to take the property to pad their budgets. Justice Sonia
Sotomayor noted this police incentive with concern.

The numbers can be hefty. In 2008, the Chicago Police Department
bragged it took in some $13.5 million in asset forfeitures, nearly
double what it had seized the previous year. Golly. Inquiring minds
will wonder if there were actually double the situations that called
for asset forfeiture last year, or if the Chicago PD is simply more
assertive about detaining property when the city is short of money.

The case comes from the Seventh Circuit Court of Appeals, which
vindicated the citizens when it ruled that the time between
forfeiture and judicial hearing presented an unconstitutional delay.
The court required the state to provide property owners with an
informal hearing to establish whether there is probable cause to
continue to keep the property in custody.

The question for the Supreme Court is whether to uphold what's known
as the "Mathews standard," a well-worn method by which courts
determine how individuals may challenge government "takings." The
standard requires courts to take into account the individual harm
caused by a property seizure as well as the risk of mistakes and the
cost of additional hearings or other procedures. Illinois prefers a
looser standard, allowing the state to continue to delay due process.

The Illinois law compares awkwardly with the federal Civil Asset
Forfeiture Reform Act of 2000. As the Cato Institute details in an
amicus brief, while the two laws may establish comparable time
frames, federal civil forfeiture actions can often run into the
hundreds of millions of dollars, a level of cost and complexity well
beyond the property at issue under the Illinois drug law. The better
match-up is with other state forfeiture laws, and here Illinois
performs miserably, taking many times as long to provide a hearing as
the likes of Florida, Iowa, Arizona, Missouri and Texas.

We're all for relieving criminals of illegal profits, but civil
forfeiture laws must be used with caution and oversight lest they
infringe on fundamental rights. Alvarez v. Smith provides an
opportunity to restore the balance of justice to citizens.