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Marilou Chin was asleep March 5, 2011, when her 30-year-old son Brandon took the keys to her 2004 Mercury Mountaineer so he could go out with a friend to Olivia’s Lounge in Pearl City.
Honolulu police officers arrested Brandon that night for felony burglary, saying a witness on the street saw him trying to break into the bar, which was already closed for the night.
Brandon, who had a prior conviction for burglary in 2005, says it was a misunderstanding and that he was only trying to go to the bathroom. Officers said they found lock-picking tools sticking out of the keyhole of the door and a crowbar inside a duffle bag on the passenger seat of the SUV.
Brandon spent the night in jail and was released pending an investigation. He was never charged with a crime, much less convicted.
Authorities, however, kept his mother’s car. They wanted to sell it using the state’s civil asset forfeiture law and keep the money for themselves. The Mountaineer had an estimated value of $8,000.
Marilou fought to keep her vehicle. She was an elder care provider and needed the SUV to transport her clients — some of whom were wheelchair-bound — to doctors’ appointments and to run errands. The car was registered in her name.
But officials with the Hawaii Attorney General’s Office, which oversees the state’s asset forfeiture program, were unconvinced. There was enough evidence, they said, for them to take the vehicle.
“It’s not fair that they took the car for nothing,” Marilou said. “It was hard on us. I almost lost my business because I had no transportation.”
Her case is not unique. There are stories from around the country of people losing cash, homes and vehicles to civil asset forfeiture even if they’ve never been charged or convicted of a crime.
The practice is supposed to target criminals, such as drug dealers and others involved in organized crime, and has become an increasingly popular tool of law enforcement.
“We’re really cognizant of the abuse. But we don’t really see that here. We’re really careful with the things that come through our offices.” — Mike Vincent, deputy attorney general
Nationally, billions of dollars worth of property has been seized. Hawaii authorities have been collecting about $3 million a year through forfeitures.
Civil asset forfeiture has been criticized as an unjust way for law enforcement agencies to fatten their coffers.
Much of the concern stems from the fact that police agencies have a profit motive to seize as much property as they can since they ultimately will benefit from the proceeds.
“We’re aware of the problems nationally,” said Hawaii Deputy Attorney General Mike Vincent, who heads the state’s asset forfeiture program. “We’re really cognizant of the abuse. But we don’t really see that here. We’re really careful with the things that come through our offices.”
Hawaii has been criticized for having some of the worst civil asset forfeiture laws in the country, leaving open the possibility of abuse.
The Institute for Justice, national nonprofit organization, recently gave the Aloha State a grade of D-minus for its forfeiture procedures, highlighting the low standard of proof that law enforcement must meet before it can seize someone’s property.
Another problem, the organization found, is that it’s up to property owners to prove they were not involved in a crime in order to keep their belongings.
The Institute for Justice’s report points out that local law enforcement agencies also have a financial interest in taking property because proceeds are split among police, prosecutors and the Hawaii Attorney General’s Office.
And while the nonprofit lauds the state for issuing annual reports that detail how much property is seized and forfeited each year, and how that money is spent, there’s no accounting of whether those actions were tied to criminal charges or convictions.
Several state lawmakers are hoping to change that in the coming Legislative session, which kicks off Jan. 20.
State Sen. Will Espero, vice chair of the Senate Public Safety Committee, plans to introduce a bill that would require a conviction before a person’s property can be taken.
The bill would also allow individuals contesting forfeiture to recover attorneys’ fees if they’re successful, something that’s not allowed under current law.
Two Big Island legislators — Sen. Russell Ruderman and Rep. Joy San Buenaventura — are considering similar measures, as well as the possibility of auditing the entire asset forfeiture program.
“It’s a basic policy call on whether one believes that the government has the right to take a citizen’s property or belongings without a conviction,” Espero said. “It’s as simple as that and from my perspective they should not.”
But Espero and his colleagues are expected to get significant pushback from law enforcement officials, many of whom believe that asset forfeiture is a way to deter crime, and in particular, drug dealing.
“Although they say there’s no abuse one can argue that taking a person’s property with no conviction is abuse.” — State Sen. Will Espero
The idea is that if criminals know they can have their cars, cash and homes taken away, they will be less likely to commit crimes in the first place.
Espero says he’s already met with top officials from county police departments and prosecuting attorney’s offices, as well as those from the Hawaii Attorney General’s Office.
A common refrain, he said, is that there’s no proof that the laws are being implemented inequitably or are being abused to bolster bottom lines.
“Although they say there’s no abuse one can argue that taking a person’s property with no conviction is abuse,” Espero said. “They’ll say ‘what we’re doing is fighting crime’ — and that’s absolutely correct — but that’s not saying that this is the best way to fight crime.”
The local chapter of the American Civil Liberties Union and the Drug Policy Forum of Hawaii, a nonprofit advocating for expanded drug treatment options for offenders over punitive measures, are expected to support lawmakers’ reform bills.
Both organizations hope to piggyback on a national trend to rein in or abolish civil asset forfeiture laws.
For instance, in Pennsylvania the ACLU launched a months-long investigation into the practice, finding what it called rampant abuse and a system designed to discourage people from fighting for their property.
Among the ACLU’s findings were that many people who were never convicted of a crime lost their belongings in asset forfeiture proceedings because it was too burdensome and costly to appeal to the courts. That’s if they were even notified before the property was sold.
The ACLU also found that asset forfeiture cases involving cash disproportionately targeted black communities, in part because they were more likely to be arrested and have their property seized in the first place.
According to the ACLU, these abuses occurred despite well-publicized assurances from top law enforcement officials that asset forfeiture was a fair and equitable means of combatting organized crime and discouraging the drug trade.
Those same officials often said that any cases in which people were unfairly targeted — such as when an 87-year-old grandmother lost $2,000 in pension funds because authorities found that her husband had two joints — were merely outliers, according to the ACLU.
Mandy Finlay, advocacy coordinator with the ACLU of Hawaii, says she would like to perform a similar analysis here, and is certain it would find similar abuses.
“The state is basically seizing property without having to meet any sort of standard of proof,” Finlay said. “This can easily destroy somebody’s livelihood if they seize a large amount of cash, the car they take to work and even their house in certain circumstances.”
A chief concern for the ACLU, she said, is raising the burden of proof for law enforcement before it can take a person’s property. State law currently says prosecutors must show by a preponderance of evidence that the property is linked to a crime for it to be forfeited.
At a minimum, Finlay says prosecutors should be forced to show there’s clear and convincing evidence of a crime before a forfeiture can proceed. But like Espero and others, she would prefer that the law to require a conviction.
The ACLU would also like to dilute the profit incentive by funneling money from forfeited property into the state’s general fund instead of directly to the law enforcement agencies making the seizures.
Finlay said her organization supports any changes to state law that would allow property owners to appeal the state attorney general’s rulings, which currently are considered binding.
There are also financial burdens that should be removed for citizens challenging a forfeiture, Finlay said, such as the requirement that an individual pay an upfront bond of $2,500 or 10 percent of the estimated value of the property.
She also supports allowing citizens who challenge the forfeiture in court to have the opportunity to recover attorneys’ fees.
“Right now the whole concept is pretty absurd; it’s legalized theft,” Finlay said. “I think a lot of people don’t know this is going on or that our law left so much room for abuse. As people are educated on the topic I think it’s definitely something a lot of folks are going to want to take on and to change.”
Civil asset forfeiture can be lucrative for Hawaii law enforcement agencies. Statistics from the Hawaii Attorney General’s Office show that from fiscal years 1997 to 2014, state and county police agencies seized more than $26 million worth of property, mostly in the form of cash and cars.
Local agencies have seized and collected millions more in Hawaii using federal forfeiture laws. For example, Hawaii law enforcement organizations received more than $22.5 million via the U.S. Department of Justice and U.S. Treasury’s “equitable-sharing” program from 2000 to 2013 , according to data from the Institute for Justice.
“If you got rid of the asset forfeiture law, it’s my opinion that you would have a lot more problems than you have currently.” — Hawaii County Prosecuting Attorney Mitch Roth
Much of that federal money, however, is expected to go away for the foreseeable future after the DOJ announced it will be suspending its equitable sharing program, which could make money procured by local police agencies through state law that much more important to them.
Neither the Honolulu Police Department nor the Honolulu Prosecuting Attorney’s Office would comment about the state’s civil asset forfeiture program, despite reaping the most benefit.
But Hawaii County Prosecutor Mitch Roth was not shy about praising the program. He dismisses any claims of abuse as little more than conjecture, and encourages the state to audit the program to prove that he’s right.
The last time the civil asset forfeiture program was audited was in 1995, seven years after the law authorizing it was passed by the Legislature. At that time, the auditor noted the potential for abuse and the low threshold police and prosecutors had to prove before taking someone’s property.
Then-Attorney General Margery Bronster blasted the auditor for having a “anti-law enforcement agenda” and pointed out that any examples of abuse came from the mainland, not Hawaii.
Roth said that’s still the case today. He believes the program acts as a deterrent to criminals, particularly drug dealers.
“If you got rid of the asset forfeiture law, it’s my opinion that you would have a lot more problems than you have currently,” Roth said. “The way the program is being used, it is protecting our community and making it safer and healthier.”
Officials at the Hawaii Attorney General’s Office similarly defend the state’s asset forfeiture program, saying it’s a strong deterrent for certain types of crime and rarely abused by overzealous police and prosecutors.
Vincent, the deputy attorney general, said one concern he has if lawmakers pass a bill that requires a conviction is what to do with all the seized property. Often forfeiture proceedings are completed before the criminal process plays out, he said. If that changes, law enforcement officials might find themselves in cramped quarters.
“The problem you’re going to have is you’re going to have that property sitting somewhere,” Vincent said. “Who’s going to take care of it and maintain it during the criminal process, because in some cases the criminal process can take awhile.”
That matters little to Marilou Chin and her son Brandon. Even if the law is changed to require a conviction before a person’s property is sold, they have no recourse to get their car back.
The Mountaineer, which was seized in 2011, has already been sold and they said they had to spend another $14,000 on a replacement.
“It’s kind of weird that the car got convicted for burglary and not me,” Brandon Chin said while standing in a Kalihi carport with his mother. “The law doesn’t need to go away. It just shouldn’t be abused.”