Report shows the high cost of innocence in Hawaii

by Daryl James, Institute for Justice

Crime does not pay, but innocence can cost more when police conduct searches and seize property in Hawaii. Even if a person has done nothing wrong—and can prove it in court—the expenses associated with recovering assets quickly add up. Many people calculate the costs and simply walk away.

Policing for Profit, a nationwide report released Dec. 14 from the nonprofit Institute for Justice, shows that 84% of government property grabs go uncontested when local agencies initiate administrative cases with the Hawaii Department of the Attorney General. Regardless of a person’s guilt or innocence, giving up is often the most fiscally prudent response to a process called civil forfeiture.

The moneymaking scheme, which operates with few checks in Hawaii, allows the government to seize and take title to cars, cash and other valuables without ever convicting anyone of a crime. Some forfeiture targets never even face arrest.

The law does not care. Civil forfeiture puts property on trial, not people. Prosecutors in Hawaii merely must prove by a “preponderance of the evidence” that assets are associated with criminal conduct. The language sounds fancy, but it basically means a coin flip. The government barely must show a 50% likelihood that the evidence weighs in its favor.

Once agencies transfer ownership to themselves, they do not have to share the windfall with anyone. Hawaii allows police, prosecutors and the attorney general to split 100% of the proceeds among themselves—up to $3 million per year. The result is a system of perverse incentives, which invites cash-strapped agencies to confiscate as much property as possible and then overwhelm people who dare to resist in a costly and confusing maze of bureaucracy.

Those who fight back must choose their defense strategy up front. They can demand their day in court, which requires a cash bond and other expenses, or they can file a petition with the attorney general—the same person with a financial stake in the outcome. Property owners who go this route can have their claim rejected without ever speaking to a neutral judge.

Either way, property owners must navigate strict deadlines and filing requirements, something difficult to do without help from an attorney. Hiring someone might cost $3,000 or more, and property owners must pay out of their own pockets because the entire process is civil, which means nobody has a right to counsel.

A person does not need an accounting degree to run the cost-benefit analysis. Although Hawaii does not report data necessary to calculate average forfeiture amounts, the median value in states that share information is $1,276. The math is sobering. Innocent people who fight back and win might end up paying double or triple what a guilty person pays by simply doing nothing.

The skewed system is one reason Hawaii earns a D- in the nationwide Institute for Justice report, which evaluates federal and state civil forfeiture laws in three main areas: The standard of proof the government must meet to forfeit assets, the protections provided to innocent owners, and the share of revenue that flows to law enforcement coffers.

A 2018 report from Hawaii’s state auditor reveals additional problems with civil forfeiture. Lawmakers approved legislation in 2019 to eliminate the perverse financial incentives and improve procedural protections for property owners, but Gov. David Ige responded to pressure from local prosecutors and vetoed the bill.

As the lobbying shows, local agencies like the moneymaking scheme too much. When cash runs low, all they have to do is step up their patrols until they find vulnerable targets. After that, proving guilt or innocence is optional. Money flows into their coffers either way.

Daryl James is a writer at the nonprofit Institute for Justice in Arlington, Va.

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