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State Rep. Joy San Buenaventura has been waiting for nearly two years on an audit that she hopes will lead to reforming Hawaii’s civil asset forfeiture law, which allows police agencies to seize cash and property suspected to be tied to criminal activity.
The audit was approved by the Legislature in 2016 and was supposed to be completed before the 2017 session so that lawmakers could pursue possible changes to a law that is considered by some to be one of the worst in the country due to the potential for abuse.
But a shakeup in the State Auditor’s Office combined with turnover and other internal policy changes have delayed the release of the asset forfeiture analysis, which could cause delays in passing significant reform.
“It just seems low on the auditor’s priority list,” said San Buenaventura, who represents the Puna district on the Big Island. “I intend to reintroduce my bill so that they know the need for the audit. I’m hoping that one or the other gets done.”
San Buenaventura has been one of the most vocal advocates in the Legislature for asset forfeiture reform. In 2016, she introduced legislation to change to the system to protect the poor and make it less likely that law enforcement agencies profit from property seizures.
That was also when she called for the statewide audit, which would be the first in two decades.
In Hawaii, a person doesn’t need to be convicted of a crime — or even charged — before their property can be seized by law enforcement and sold off at auction.
The resulting revenue — which totals millions of dollars over the years — then gets distributed among the various law enforcement agencies that participated in the seizures so that they can use it to purchase equipment or pay for training expenses.
If someone wants to appeal a seizure it’s up to them to prove that their property wasn’t obtained from criminal activity or used in the commission of a crime. That’s the opposite of a typical criminal proceeding, in which the burden is on the prosecution to prove guilt.
The state program, which was enacted in 1988, is administered by the Hawaii Attorney General’s Office. Since then, officials with law enforcement agencies have defended it from attack, saying its an important tool for taking on organized crime and drug dealers.
They say it hits them where it hurts — the pocketbook.
“Concerns about ‘innocent owners’ being deprived of their property or ‘policing for profit’ are unfounded,” Honolulu Prosecuting Attorney Keith Kaneshiro’s office said in written testimony to the Legislature in 2016.
“Hawaii’s forfeiture laws provide more than adequate protection of property owner’s rights and numerous safeguards are already codified in the statute,” Kaneshiro said. “We are confident that property is being seized and forfeited fairly and equitably and the abuse present in other jurisdictions does not exist here.”
Not everyone agrees. Both the American Civil Liberties Union of Hawaii and the Drug Policy Forum of Hawaii have advocated for changes in the law, saying that the program incentivizes the seizure of someone’s property despite the fact they might not be guilty of a crime.
They also pointed to the fact that states throughout the country have sought to abolish the programs or at least require a conviction before a person’s property could be taken.
Carl Bergquist, executive director of the Drug Policy Forum of Hawaii, said he hopes the state releases its audit in time for legislators to pursue action in 2018. He said if it comes out too late in the session, certain deadlines to keep bills alive may have already passed.
“It could be the year that this happens,” Bergquist said. “It could also be the year that nothing happens.”
He said one of the problems facing those seeking reform is they really don’t know how many people have been victimized. At this point, he said, there are only anecdotes.
For example, in January 2016, Civil Beat reported on a Pearl City woman who lost her Mercury Mountaineer after her son took the keys and got arrested in 2011 for suspected burglary.
Even though her son was never officially charged with a crime she lost her SUV, which she relied on to run her business. She was an elder care provider and used the vehicle to transport her clients, some of whom were wheelchair bound.
In September 2016, the Honolulu Star-Advertiser wrote about a similar case involving a man who had his Honda Accord seized and auctioned off after police suspected it was used during a car break-in at Makapuu Lighthouse.
The problem was the man was in prison at the time of the suspected crime, and police believe someone else had taken his car to commit the break-in. He lost the vehicle anyway.
State Auditor Les Kondo told Civil Beat that he anticipates releasing the asset forfeiture audit during the upcoming session, although he didn’t have a specific date.
He said the delay was caused, in part, by the fact he was appointed to the auditor position in the spring of 2016 and that he wanted to implement different processes within the department. There was also some turnover in the office, he said, which caused further hiccups.
“There is something that is going to get issued,” Kondo said. “We are working on the report.”
Kondo didn’t want to discuss specific findings, however, noting that the audit focused mainly on the way in which the Hawaii Attorney General’s Office administers the civil asset forfeiture program — from approval to appeal.
But he also said it will address how many people had their property seized without a conviction or criminal charges. He said there will also be a category for those who were acquitted.
“We are going to report those numbers because those numbers are very interesting,” he said.