Civil asset forfeiture was thrust in the media spotlight last month when President Donald Trump told an audience of sheriffs from around the country he would “destroy” the career of an unnamed Texas legislator.

The lawmaker was reportedly backing a bill limiting the ability of police to confiscate and sell personal property of people who have not been convicted or even charged with a criminal offense. Trump’s comment was taken as a joke by his audience, but the issue is no laughing matter.

Asset forfeiture laws have been around for a long time, but their use increased as the federal government ramped up the war on drugs in the 1970s. Money, cars and other property seized during drug busts was later sold, with the proceeds then shared by the law enforcement agencies involved.

In many cases, property seized in crime investigations doesn’t have to be returned even if no conviction occurs.

Flickr.com/Tex Texin

As time passed, states got into the game, and forfeiture laws have been applied to a growing number of additional offenses, proven or suspected. The procedures have expanded to include not just criminal forfeiture, where a criminal conviction is necessary to trigger the loss of personal property, but also civil and administrative processes that can sweep up the property of people who have not been charged or convicted.

Proponents of the forfeiture process say it deters criminal activity even where criminal convictions can’t be obtained, and it provides funds for additional policing, leading to safer communities.

But critics, ranging from the conservative-leaning Heritage Foundation and the Grassroot Institute of Hawaii to the American Civil Liberties Union, say there’s no evidence of a deterrent effect on crime. They argue “policing for profit” creates a perverse set of financial incentives that encourage police to abuse their discretion through a system that fails to provide normal due process and forces property owners to try to prove they were not involved in criminal activity.

Missing The Point

Asset forfeiture received a different kind of attention in Hawaii this week when a local television station, touting its investigative prowess and on the lookout for stumbles by the beleaguered Honolulu Police Department, jumped on what it saw as a city budget story.

The “investigative” broadcast Monday by Hawaii News Now portrayed the Police Department as talking “poor mouth” while sitting on millions of dollars in a little-known fund that “can be used for almost anything.”

The headline underscored the story’s main point: “HPD says it doesn’t have the money for key programs, despite having more than $13M in the bank.”

Honolulu Police Dept shoulder patch1

The Honolulu Police Department has more than $13 million in a fund built up through the sale of forfeited property.

Cory Lum/Civil Beat

The fund contains HPD’s share of the proceeds from property confiscated and sold as the result of seizures made in cooperation with the FBI and other Department of Justice agencies.

According to the story, an HPD spokesman told the Police Commission earlier this month the department would have to curtail other law enforcement programs or services in order to find resources in its budget to cover a $250,000 settlement negotiated with former Chief Louis Kealoha. But at the same time, the station reported, a single fund controlled by the department holds nearly $12 million that wasn’t tapped at all during the first six months of this fiscal year.

When combined with similar but smaller forfeiture accounts from the Treasury Department and the state, the total held in reserve by HPD is over $13 million, according to a required report filed by HPD in January and available online through the city’s Docushare system.

The clear implication of the story was that the cost of the Kealoha settlement could easily have been covered by the millions sitting unused in those accounts, and the department’s attempt to avoid responsibility for paying should be investigated.

A public agency asking for more from taxpayers while still sitting on plenty of unspent money? It sounds a lot like a scandal in the making, doesn’t it?

But the reality, it seems, is quite different.

There are several layers of federal rules and policies that appear to block asset forfeitures funds from being used for the settlement with the chief, or to be transferred from the Police Department budget to other city needs.

Funds can only be used be used for legitimate law enforcement purposes and, according to federal guidelines, cannot be used “to pay attorney fees, settlement payments, or any other related costs of lawsuits involving the agency or its employees.”

By these rules, payment of the $250,000 settlement with the chief from forfeiture funds would have to be disallowed.

And the forfeiture funds can’t be used to “replace or supplant” money that would otherwise have to be part of the city-funded HPD budget. So the idea that the large pending balance in that forfeiture account can be easily tapped by the city to help ease its budget woes is an illusion.

Reforms Gain Momentum Elsewhere

At least 17 states have reformed their asset forfeiture laws in the past few years. New Mexico abolished civil forfeiture in 2015 and requires that a person be convicted before property can be forfeited. Last year, Nebraska changed its law to require a criminal conviction on drug, child pornography illegal gambling charges before authorities can seek forfeiture. Maryland, Washington, D.C., Florida and Minnesota are among the other states that have amended their laws to better protect due process rights.

Meanwhile, Hawaii has to date rejected similar proposals, instead making only a few small moves.

Last year, the House passed a bill that would have eliminated administrative forfeitures conducted by the attorney general and limited civil asset forfeitures to cases where the property owner had been convicted of the underlying offense. Prosecutors and police testified against the bill, and it died in the Senate without getting a hearing.

Meanwhile, the Senate passed its own bill calling for the creation of a working group to review Hawaii’s asset forfeiture laws and recommend improvements. That measure died in the House during the final days of the 2016 session when it was bottled up in the Finance Committee.

As something of a compromise, perhaps, the House and Senate agreed on a concurrent resolution requesting a management audit of the asset forfeiture program administered by the Department of the Attorney General and compilation of data on how the process has been used. Although the resolution called for the audit to be completed before the beginning of the 2017 session, it has not appeared in the lists of reports submitted to the Legislature this year.

Several reform measures introduced this year have all died without hearings.

Reform Is Long Overdue

The last time the state auditor looked at the asset forfeiture program was for a 1995 sunset evaluation of the law. At that time, the report noted several concerns. It cited media reports of forfeiture laws “causing major disruptions in the lives of individuals who face the loss of a home or other property under questionable circumstances, such as a friend bringing marijuana plants on a visit.”

Hawaii has certainly had its share of such cases, which need to be examined.

The report also cited an observer who commented “that law enforcement agencies could become ‘addicted’ to forfeiture as a source of revenue and other assets.”

And it noted the paradoxical situation in which “the government may pursue civil forfeiture … even after acquittal or dismissal in a criminal proceeding,” even though “the supposed purpose of forfeiture is to reduce criminal activity.”

State-level reform efforts unfortunately don’t address federal asset forfeitures, which provide the bulk of the funds HPD and most other law enforcement agencies receive from the sale of seized property.

But it appears this is one of the matters where change is occurring first at the state level, which should eventually create cumulative pressure for reforms at the federal level. Once the requested management audit has been completed and reviewed, our Legislature should join those states that have taken steps to limit the reach of forfeiture laws, especially by eliminating or restricting civil asset forfeitures in the absence of criminal convictions.

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