If you have ever heard someone in central Illinois complain about the State dismissing a criminal complaint against them and then still seizing their property on basis that the property was illegally obtained – believe them. It happens, or it used to happen, with some regularity before the law was changed. As of July 1 of this year hopefully this scenario will be a far less common occurrence.
One of the biggest changes is that the new law does away with cost bonds. Prior to this change, in order to assert and preserve an interest in the seized property, individuals had to come up with a 10% cost bond. This meant that in addition to (potentially) having to bond themselves out and find and hire an attorney, our clients were also having to come up with additional funds to preserve their right to their own money which the State may or may not have rightfully taken. Obviously, this was even more of a burden if our clients could not afford to bond themselves out or lost their employment due to their temporary pre-trial incarceration. Under the new law, no more. You file your claim and answer and that is sufficient to assert your interest. Additionally, the new law precludes the seizure of small amounts of currency, less than $500.00, in drug cases and less than $100.00 in all other cases. And property may no longer be seized in a case when less than 2 “single unit doses” of a controlled substance are the source of the felony offense. Finally, the burden is on the State to obtain a forfeiture when there is a not guilty verdict or no information/indictment are filed has been raised to clear an convincing evidence.
The new statute also codifies the 8th Amendment to the United States’ Constitution in that the Illinois Legislature has added that any forfeiture under the new law is subject to the “disproportionate penalties analysis” as provided in Section 9.5 of the Drug Asset Forfeiture Procedure Act.