Excerpt from 2017 Robert Novak Journalism Fellowship
One April night last year, Sylvia Smith asked her son to drive her car to the store and pick up some sinus medication. He brought a friend and nephew along for the ride, and they were soon pulled over by Chicago police, who found marijuana in the car. Three days later, police dropped the charges against Smith’s son. But they kept her car, and it took more than 10 months for her to get it back. “I guess they wanted me to give up and say, forget it,” she says. “I truly don’t know.”
Chicago police had seized Smith’s car and sent it to state prosecutors for permanent forfeiture. Civil forfeiture laws allow state and federal law enforcement to take possession of property seized in connection with a crime — regardless of whether the property owner herself has been charged or convicted of anything. Typically, property owners can try to reclaim seized property by showing in court that they did not know about the alleged criminal activity. But in Chicago, a series of complicated procedures, unusual statutes, and parallel jurisdictions mean that challenging a forfeiture can be an especially long, expensive, and daunting prospect.
After police seized Sylvia Smith’s car, they sent her a notice telling her that to challenge the pending forfeiture, she had to appear in court at the Richard J. Daley Center in downtown Chicago. Four afternoons a week, Courtroom 1707 in the Daley Center hears forfeiture cases from people like Smith whose cars, cash, or other property has been seized by local police.
Most days, the modestly-sized courtroom is filled with a few defense attorneys, several prosecutors from the Cook County State’s Attorney’s Office, and as many as a dozen people — typically low-income and minority — hoping to challenge civil forfeitures. When city police seize someone’s property in Chicago, they are the first to decide whether to send the property to the State’s Attorneys Office for forfeiture proceedings. If prosecutors decide to pursue ownership of the property under one of those laws, the seizure becomes a forfeiture case, triggering a complex process that can cost thousands of dollars, and last for months or years.
“The biggest complaints that I get from clients are, number one, the cases just take so long,” says Andrew Hemmer, a legal aid attorney who works on civil forfeiture cases at Cabrini Green Legal Aid, an organization providing free legal services for low-income Chicagoans. "From the time you have your vehicle seized or cash seized, it can be six or seven months before you have your first court date,” he says. “And then from there, it takes months or years to have your forfeiture trial. So for most people, it costs them so much time and money to travel back and forth to court and navigate these proceedings — by the time the case is over, they’ve spent more time and money than the case is even worth.”
Sylvia Smith met Hemmer when she first showed up in court to challenge the seizure. He soon volunteered to take her case. “We get more calls from people that fit that exact fact pattern than we could ever handle alone,” says Hemmer. Working under a two-year fellowship from Equal Justice Works, a public interest law nonprofit, Hemmer has established a civil asset forfeiture program at Cabrini Green Legal Aid specifically to help low-income claimants with their cases. “It was a long process, and I just had to wait it out,” says Smith, who is disabled and counts on others to transport her in her car. “But the way the city does things, I’m just glad I had the patience – and Andrew.”
Critics of how civil forfeiture laws are employed argue that getting property back from the government can be a complicated and expensive uphill battle, especially for a layperson acting without a lawyer. That’s often the case in many civil forfeiture proceedings, especially when the value of the cash or property being seized is less than it would cost to hire an attorney.
In recent years, some states have enacted reforms to raise the burden of proof prosecutors have to meet, or make it easier for innocent owners to make their case. Some states, like New Mexico, have gone further, requiring that law enforcement first secure a criminal conviction before they permanently take away any property — essentially taking the “civil” out of civil forfeiture.
But Chicago is one of the most expensive and time-consuming places in the country to challenge a forfeiture. Within 14 days of the seizure, property owners are entitled to a hearing called a “preliminary review,” during which state prosecutors must show that the police had probable cause to take the property. On a given day, most of the people in Courtroom 1707 are there for a preliminary review. Normal rules of evidence don’t apply in preliminary review hearings; among other things, that means that prosecutors (but not property owners) can introduce hearsay evidence, which is typically inadmissible. Probable cause is a low bar for state prosecutors to clear, and they usually do.
If the judge finds probable cause at a preliminary review, property owners receive what’s called a Notice of Pending Forfeiture, and they have 45 days from when they receive the notice to challenge the forfeiture, by filing a claim with the State’s Attorney’s Office. Then, they’ll get another notice — a Complaint for Forfeiture, which comes with a court date that begins the formal trial over their car, cash, or other property.
Almost all of Andrew Hemmer’s clients are so-called “innocent owners,” people who are owner of record for a seized car but aren’t the people facing the related criminal charges that led to the car’s seizure in the first place. “One of the most common cases I’ve seen is that it’s a parent or a grandparent who owns the car, lets their kid or grandparent take the car, and the parent receives a call the next day saying that their kid is in jail.” says Hemmer. “They think they can just get the car back when they show up for the court date, but they quickly find out that’s not the case.”
In many of their cases, like in Sylvia Smith’s, the criminal case is dismissed relatively early on, but the forfeiture case keeps going for months or years. Claimants in that situation without lawyers, says Hemmer, frequently give up. “At first I started to say, well, forget it,” says Smith. “But then I said, I just have to try to fight for it, whether I can get it back or not.” When a vehicle is worth $10,000 or more, it triggers a discovery process, in which state’s attorneys ask claimants to provide tax returns, records relating to the ownership of the car or lease agreements, and a number of other documents. For Hemmer’s clients, it’s often the most time-consuming part of the case, and the most invasive. “It’s hard to explain to people why it’s taking so long” to get to trial, he says.