Hawaii Bill Would End Civil Asset Forfeiture, Opt State Out of Federal Program
by Mike Maharrey, Tenth Amendment Center, Jan 23, 2022
HONOLULU, Hawaii (Jan. 23, 2022) – A bill filed in the Hawaii Senate would reform the state’s asset forfeiture laws to require a criminal conviction in most cases, and opt the state out of a federal asset forfeiture program known as “equitable sharing.”
A coalition of four Democrats introduced Senate Bill 2004 (SB2004) on Jan. 19. The legislation would restrict asset forfeiture to felony cases and would require a criminal conviction before prosecutors could proceed with the process in most cases. The proposed law would also address the “policing for profit” motive inherent in the forfeiture system by directing all forfeiture proceeds to be transferred to the general fund after the payment of expenses incurred during the forfeiture process. Under current law, 25 percent of forfeiture funds go to police agencies, 25 percent to prosecuting attorneys, and 50 percent go to the attorney general.
Passage of the bill would effectively opt Hawaii out of a federal program that allows state and local police to get around more strict state asset forfeiture laws. This is particularly important in light of a policy directive issued in July 2017 by then-Attorney General Jeff Sessions for the Department of Justice (DOJ) that remains in effect today.
There are several other bills to reform Hawaii’s asset forfeiture laws pending in the legislature, but they do not address this federal program.
While some people believe the Supreme Court “ended asset forfeiture, its opinion in Timbs v. Indiana ended nothing. Without further action, civil asset forfeiture remains. Additionally, as law professor Ilya Somin noted, the Court left an important issue unresolved. What exactly counts as “excessive” in the civil forfeiture context?
“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”
Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts will address this “over the next few years,” or they can do what a number of states have already taken steps to do, end the practice on a state level, and opt out of the federal equitable sharing program as well.
A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. The DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.
Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.
California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.
SB2004 directly addresses the federal equitable sharing program with the following language:
Notwithstanding the provisions of section 712A-7, a seizing agency or prosecuting attorney shall not enter into an agreement to transfer or refer property seized under section 712A-6, unless the seized property includes United States currency in excess of $100,000, to a federal agency directly, indirectly, through adoption, through an intergovernmental joint task force or by other means that circumvent the provisions of this section.
Most forfeiture cases fall well below the $100,000 threshold.
As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.
We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.
SB2004 was referred to the Senate Judiciary Committee where it must receive a hearing and pass by a majority vote before moving forward in the legislative process.
SB2004: Text, Status
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Testimony on HB1965: Yes to civil asset forfeiture reform
from Grassroot Institute of Hawaii, February 3, 2022
The following testimony was submitted by the Grassroot Institute of Hawaii for consideration on Feb. 3, 2022, by the House Committee on Judiciary & Hawaiian Affairs.
To: House Committee on Judiciary & Hawaiian Affairs
Rep. Mark M. Nakashima, Chair
Rep. Scot Z. Matayoshi, Vice Chair
From: Grassroot Institute of Hawaii
Joe Kent, Executive Vice President
Re: HB1965 — RELATING TO PROPERTY FORFEITURE
Dear Chair and Committee Members:
The Grassroot Institute of Hawaii would like to offer its comments on HB1965, which attempts to reform the practice of asset forfeiture in the state.
Civil asset forfeiture in Hawaii has been the subject of criticism and concern. Thus, we commend the Legislature for continuing to address these problems.
In a survey of civil asset forfeiture nationwide by the Institute of Justice, Hawaii earned a D- and the dubious distinction of having some of the worst forfeiture laws in the country.
Singled out for criticism was the state’s low standard of proof for showing how the property is tied to a crime.
In addition, Hawaii places the burden on innocent owners to prove they weren’t tied to the crime resulting in the forfeiture.
The result is a state forfeiture program open to abuse and able to prey on innocent property owners.
As the Hawaii state auditor wrote in a June 2018 report, Hawaii’s asset-forfeiture program lacks clear rules and procedures, inadequately manages funds and is badly in need of greater transparency.
The audit found that:
>> In 26% of asset forfeiture cases closed during fiscal 2015, property was forfeited without a corresponding criminal charge.
>> In another 4% of cases, the property was forfeited even though the charge was dismissed. Of those whose property was forfeited, very few petitioned for remission or mitigation. The state auditor speculated that most people might not know petition is an option because of the lack of transparency surrounding the forfeiture program.
This bill would raise the standard of proof required for forfeiture, from a “preponderance of the evidence” to “clear and convincing evidence.” But while this would be an improvement, the intent to help protect innocent owners is undermined by the fact that the bill would allow for forfeiture when a person is charged with an offense related to the property — not when that person is convicted.
Without the requirement of conviction, innocent owners would remain subject to the threat of an unjust forfeiture.
It is shocking that Hawaii residents can lose their property without being convicted of a crime. Given that many of those subject to forfeiture lack the knowledge, assets or ability to challenge the seizure, this makes the forfeiture program especially threatening to vulnerable populations.
There is one additional concern that should be addressed to mitigate the flaws of Hawaii’s forfeiture program: Currently, it allows a portion of the forfeiture proceeds to go to the agencies that initiated the forfeiture. This gives the local agencies a perverse financial incentive to pursue asset forfeiture.
We suggest amending the bill so that all forfeiture proceeds go to the general fund, thereby eliminating economic incentives associated with pursuing forfeiture.
This bill is a step in the right direction, but it does not go far enough to raise Hawaii’s dismal grade for unjust forfeiture laws. With a few changes, we could become a nationwide model for forfeiture reform.
Thank you for the opportunity to submit our testimony.
Executive Vice President
Grassroot Institute of Hawaii
HB1965: Text, Status