This is a question we get a lot. We have debated this question with other prosecutors and the good news is that most agree with this answer. There are a lot of things to take in before deciding the appropriate answers.

In general, the title has the provision to allow early forfeiture of animal PRIOR to the criminal case. The animal is more so "evidence" than anything else. Preserving evidence is the key to any successful prosecution. The immediately and proper procurement of evidence versus the failure secure and keep evidence can make or break a case. In a case where seizure was under title 4 and the owner fails to take his due process by failing to claim or respond to notice, the appropriate action is to apply to the court for dispose of animal (a fancy of saying early forfeiture of an animal). Keep in mind, you must get the approval of the prosecuting attorney first because he or she must make sure enough photos and/or video is collected of the dog i.e. evidence, before the evidence is "disposed". Disposal can be euthanasia but not always. Most states and municipalities dare not adopt out animals that have been involved in fighting for liability reasons (public threat, danger to children, etc.). Some cities have a total ban on adoption out, for example, any pit bull regardless of how it came into the shelter. Chicago is one of them.

· 4-11-9.3.

(a) It shall be the duty of any person impounding an animal under Code Section 4-11-9.2 to make reasonable and proper arrangements to provide the impounded animal with humane care and adequate and necessary veterinary services. Such arrangements may include, but shall not be limited to, providing shelter and care for the animal at any state, federal, county, municipal, or governmental facility or shelter; contracting with a private individual, partnership, corporation, association, or other entity to provide humane care and adequate and necessary veterinary services for a reasonable fee; or allowing a private individual, partnership, corporation, association, or other entity to provide humane care and adequate and necessary veterinary services as a volunteer and at no cost. (b) Any person impounding an animal under this article or providing care for an impounded animal shall have a lien on such animal for the reasonable costs of caring for such animal. Such lien may be foreclosed in any court that is competent to hear civil cases, including, but not limited to, magistrate courts. Liens shall be foreclosed in magistrate courts only when the amount of the lien does not exceed the jurisdictional limits established by law for such courts. (c) Any person impounding an animal under this article is authorized to return the animal to its owner,upon payment by the owner of all costs of impoundment and care andupon the entry of a consent order , unless such owner was, in a prior administrative or legal action in this state or any other state, found to have failed to provide humane care to an animal, committed cruelty to animals, or engaged in dog fighting in violation of the laws of this state or of the United States or any of the several states. Such consent order shall provide conditions relating to the care and treatment of such animal, including, but not limited to, the following, that: (1) Such animal will be given humane care and adequate and necessary veterinary services; (2) Such animal will not be subjected to cruelty; and (3) The owner will comply with this article. (d) The provisions of subsection (c) of this Code section shall not apply to an animal that was an object or instrumentality of a crime nor shall any such animal be returned to the owner without the approval of the prosecuting attorney. An agency having custody of an animal that was seized as an object or instrumentality of a crime may, with the consent of the prosecuting attorney, apply to the court having jurisdiction over the offense for an order authorizing such agency to dispose of the animal prior to trial of the criminal case as provided by law.

The whole concept of not having animal victims of crime languishing in impound for months and months while waiting for trial of a potential criminal case was the moving force behind the Title 4 part of the Animal Protection Act of 2000. Assuming that an animal is properly impounded pursuant to the procedures outlined in Title 4, then the impounding agency has the following options for disposing of the animal:

Option A (Return to owner under consent order): Under 4-11-9.3 ©, the agency impounding an animal other than an animal which would be considered an "object or instrumentality of a crime" can return the animal to the owner under a consent order (unless the owner has been previously convicted of cruelty in a criminal case or found to have not imparted humane care in an administrative hearing). This is a unilateral decision that can be made by the impounding agency UNLESS the animal was an object or instrumentality of a crime. If the animal was an object/instrumentality of a crime, then the animal cannot be returned to the owner under a consent order without the prosecutor's approval and a disposal order from the court having jurisdiction over the criminal case. The prosecutor has to maintain control of his/her evidence. Keep in mind, the animal is considered "evidence" first and foremost and the ownership of animal is secondary when dealing with a crime.

Option C (Hearing): If a consent order isn't entered, and owner still wants the animal back, (s)he has to request his/her hearing, and follow the procedures for that. If the hearing officer finds the impound was improper, then (s)he enters an order that the owner gets the animal back. If the hearing officer finds that the impound was proper, then the hearing officer can give the animal back to the owner (again assuming no prior cruelty/inhumane findings) or may order the impounding agency to dispose of the animal according to 4-11-9.6. This hearing procedure does not apply to an "object/instrumentality of a crime animal." An "OIC animal" cannot be returned to the owner or disposed of without the prosecutor's approval. This would prevent the prosecutor from potentially losing his/her evidence due to a lame decision by some hearing officer.

So to answer the question, yes..where an animal has been the object of cruelty or the instrumentality of fighting, the impounding agency can, with the prosecutor's approval, apply for a court order allowing the disposal of the animal, by either return to the owner (we could imagine a situation where the owner was not the perpetrator of the crime against the animal, and in that situation, owner and animal probably need to be reunited ASAP), or disposed of according to 4-11-9.6, prior to trial. The prosecutor can decide not to give consent of early forfeiture and the animal can be in the cage till case is adjudicated. Many states do not have a provision for early forfeiture. Ours is a bit convoluted and clandestine to so many in the field (prosecutors & judges too), but at least we have it.

You do not have to, but you may mention these reasons if your judge is reluctant

1) Prosecutor has sufficient documentation and photo/video of animal, therefore, does not need to keep the animal;

2) animal may stay in cage for an unreasonable amount of time (we have seen cases take more than 2 years);

3) animal will go "cage crazy" (of course we would use the medical terminology to explain the psychological phenomenon known as "cage crazy". There is plenty out there on this subject);

5) animal may loose it's ability to be rehabilitated (cage crazy) for possible adoption in the future;

6) animal's care and boarding will be paid by the taxpayers (granted, title 4 seizure makes it so the defendant has to cover the cost, but in reality it is doubtful that the perpetrator would have the money to cover the cost of care (which could be for months or years in some cruelty cases) and pay a fine.

7) animal will be occupying a "cage" which is primarily used for adoption purposes. Thus, the shelter will not only loose that cage, but it may affect the numbers in euthanasia (euthanasia numbers are a big deal to shelter managers for public opinion and to their commissioners for funding);

8) if the criminal case involves numerous animals (as in the case of hoarders, dog fighting ring, breeders, etc.), The shelters cages could potentially be used to board OIC animals in many cages for a very long time and disrupt the shelter's purpose of adopting animals. In the case for fighting dogs, they must be kept separated;

9) animal kept in cage will only prolong animal's suffering, it is inhumane. This is a victim as well as evidence.

10) Shelter virus outbreaks are common, and the animal waiting for trial could be affected by any shelter virus outbreak.

11) tax payers may foot the bill for the housing and care of animal.

12) The animal poses a public threat and is too aggressive to stay in shelter (poses threat to employees) or can not be adopted due to shelter policy or aggressive nature (liability issues).