A unanimous U.S. Supreme Court ruling released Wednesday is expected to have a major effect on Hawaii’s asset forfeiture polices, which critics have long called draconian.
It is also expected to give a strong push to state legislation that would limit civil asset forfeiture in the state.
The nation’s high court ruled that the U.S. Constitution’s ban on excessive fines applies to state and local governments, thus limiting their ability to use fines to raise revenue.
Hawaii’s system has been called one of the worst in the country because it allows police to seize the personal property of people accused of crimes, even if they have not been charged, sell it and use the proceeds for government purposes.
In 2015, Civil Beat reported that Hawaii authorities were seizing an average of $1.2 million in property every year, taking things like cars, boats, guns and even family homes.
A state audit completed last year found that the state Attorney General’s office had failed to account properly for how the money was spent. It also found that in more than a quarter of the cases the auditor reviewed, property was forfeited when no one was even charged with a crime, much less convicted.
The state audit was requested by Rep. Joy San Buenaventura, vice chair of the House Judiciary Committee, who has sponsored House Bill 748, one of the two related measures in the Legislature this session.
The bill would prohibit asset forfeiture unless the property owner has been convicted of a crime. It also would require the attorney general to distribute half of all forfeited property or its sale proceeds to the state general fund.
It has been approved by the Judiciary Committee and is scheduled for a hearing Thursday before the House Finance Committee at 1:30 p.m. in House conference room 308.
San Buenaventura said Wednesday she first became aware of the problems created by civil asset forfeiture in the 1980s when she began to hear of cases near her Big Island home where items valuable to families were taken from them.
She said that she knew of cases where cars were seized because of alleged wrongdoing by one member of the family, leaving the rest of the family unable to commute to work and school, and of power generators taken from people who lived off the grid.
“Civil asset forfeiture hits harder those who are too poor to hire a lawyer,” she said, explaining that poor people who are charged with a criminal offense can get legal help through a public defender but they have no recourse if their possessions are taken in a civil procedure. The possessions are then sold off.
“It’s just being used to enrich the prosecutors and the police department, who get a portion of the profits,” she said. “The poor are further impoverished.”
San Buenaventura said Wednesday’s court ruling “will add momentum to the bill.”
It is mirrored by Senate Bill 1467, sponsored by Sen. Karl Rhoads, chairman of the Senate Judiciary Committee. It has passed his committee and is now before the Ways and Means Committee.
The 9-0 ruling authored by Justice Ruth Bader Ginsburg involved a Land Rover that was seized by police in Indiana from Tyson Timbs, who had pleaded guilty to dealing in a controlled substance and conspiracy to commit theft.
Timbs had bought the car for $42,000 with money he received from an insurance policy when his father died. The maximum fine due to the state in connection with Timbs’ crime was $10,000, but the state still took the vehicle.
Timbs sued, and an appeals court sided with him. But the Indiana Supreme Court ruled in favor of the police.
Officials at the Drug Policy Forum of Hawaii, an advocacy group that has campaigned to change Hawaii’s asset forfeiture policies, were elated by the Supreme Court decision.
“The timing was really fortuitous in showing what many of us have claimed all along — that this civil asset forfeiture policy is flawed in its mechanism and is borderline unconstitutional,” said Carl Bergquist, the group’s executive director.
Bergquist said Hawaii, along with many other states, introduced punitive asset forfeiture policies as part of a policy of getting tough on crime in the 1980s. He said the ruling reflected a growing national awareness that the laws need to be changed.
“It’s a breath of fresh air to see the unanimity, and I hope for a repeat at the state Legislature, and the governor to sign it into law,” Bergquist said.
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A Kailua girl, Kirstin Downey is a special correspondent for Civil Beat. A longtime reporter for The Washington Post, she is the author of "The Woman Behind the New Deal," "Isabella the Warrior Queen" and an upcoming biography of King Kaumualii of Kauai. She can be reached at firstname.lastname@example.org.