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Hawaii’s asset forfeiture law has long been criticized for what seems to some like a patently unjust policy: it allows government officials to seize and destroy or sell private property without a court proceeding – or, in some cases, even without even charging anyone with a crime.
On Thursday, the Hawaii State Auditor issued a report that raises even more concerns about the controversial program.
According to the audit, the Office of the Attorney General, which administers the program, has failed to account for property obtained by forfeiture, inadequately managed program funds and failed to allocate some $2 million for drug prevention as required by law.
In addition, the audit said, the AG’s office has failed to promulgate administrative rules needed to provide guidance to law enforcement and county prosecutors, who initiate forfeitures, and the public, who might have their assets seized.
“With the bar to seize and forfeit private property in Hawai‘i so low, the department must manage the program with a heightened degree of transparency and accountability,” State Auditor Les Kondo said in a statement. “We found that not to be the case.”
State law generally gives police the power to take property for civil forfeiture when the property is illegal to own, like illegal drugs or illegal gambling machines.
But police can also take property used in the commission of certain crimes, such as cars or guns used by alleged drug dealers. Proceeds of the alleged crime, such as money, can also be seized.
The Attorney General’s office presides over the asset forfeiture cases, which are civil administrative proceedings separate from the underlying criminal cases. That means the burden of proof is lower; all county prosecutors need to show is probable cause to bring an asset forfeiture case.
The auditor’s report showed some of the implications of the relaxed standards. Although property owners have the right to contest the civil forfeiture, either by petitioning to get the property back or having a court decide the case, the auditor found that the vast majority of property owners don’t exercise these rights.
From 2006 to 2015, the report said, 85 percent of cases went uncontested.
In addition, the report showed that in more than a quarter of the cases in 2015, property was forfeited even though no one was ever even charged with a crime, much less convicted. In another 4 percent of cases, property was forfeited even though the underlying charge was dismissed.
Rep. Joy San Buenaventura, who sponsored the measure calling for the audit, noted that, because forfeiture cases are civil matters, people facing asset forfeiture can’t turn to public defenders to represent them. The low percentage of contested cases, she said, shows that the program unfairly targets people who can’t afford private attorneys.
“They pick on people who don’t have the financial resources to fight them,” she said.
The report did not reach that conclusion.
However, it did criticize the Attorney General’s office for not promulgating rules that would give the public clearer guidance on how to petition the AG to get their property back, a process known as filing a petition for remission or mitigation.
The report generally covered the program from 2005-2017, under several attorneys general: Mark Bennett, David Louie, Russell Suzuki and Doug Chin, who is now the lieutenant governor and a candidate for Congress.
Suzuki, who was acting attorney general from 2014-2015 before succeeding Chin this year, did not return a call for comment. However, in a response published with the audit, Suzuki said the department has drafted rules and is giving them a final review. Suzuki said the program manager is “progressing in the right direction” to better oversee the program’s operations and finances.
Given what’s at stake and the state’s power to take property, Kondo said in an interview that the Attorney General’s office should do a better job of making clear the process for the public.
“The statute provides for remission or mitigation, but nobody really knows what it is,” he said.
Hawaii isn’t the only state with an asset forfeiture law.
But the state gets low marks for how it runs the program. A report last year by the Institute for Justice, a civil rights law firm, gave Hawaii a grade of D+ for its civil asset forfeiture program overall and an F on its accounting for how seized cash and property proceeds are later spent by law enforcement agencies.
“Hawaii’s failure to account for spending from forfeiture funds is particularly troubling,” Jennifer McDonald, a co-author of the report, said in a statement last year. “With forfeiture, law enforcement agencies can keep some or all of the proceeds from the property they take. This enables them to generate and spend funds outside of the normal appropriations process, which undermines the legislature’s power of the purse.”
Will Espero, a former state senator now running for lieutenant governor, has long been critical of the program. He commended the audit but said a wider debate needs to take place about amending or eliminating the statute.
“There’s a lot more discussion that needs to happen,” he said. “Just about everybody I talk to says, ‘You’re right, if you don’t have a conviction, government should not be taking your property.’”