A measure to reform the state’s heavily criticized civil asset forfeiture program has cleared the Legislature, but now sits on the governor’s desk with no apparent signs of whether it will become law.
Supporters are urging Gov. David Ige to sign it while police and prosecutors, who would lose substantial amounts of money, want him to veto it.
The bill would change whose property can be forfeited and redirect the proceeds of forfeited property from the state Attorney General’s office to the general fund.
In fiscal year 2017, the estimated value of forfeitures ordered by law enforcement agencies across the state was about $661,000, according to the program’s latest annual report. Honolulu and Maui County police departments were two of the biggest law enforcement beneficiaries that year.
Civil asset forfeiture, a practice used by law enforcement agencies to seize property they suspect has been used to commit crime, has drawn widespread criticism nationwide from across the political spectrum for what critics say is a lack of due process.
In February, the U.S. Supreme Court ruled that the Constitution sets limits on states’ and municipalities’ ability to seize property allegedly involved in crimes under the Eighth Amendment, which bars excessive fines.
One of the biggest changes the reform bill for Hawaii’s program would bring about, if signed into law, is to require a felony conviction before law enforcement officials can seize property. As it stands, state law allows agencies to take property without a court hearing or any criminal charges filed.
A June 2018 state audit of the current civil asset forfeiture program found that in 26% of the cases in fiscal year 2015, property was forfeited without a corresponding criminal charge. In another 4% of cases, charges were dismissed.
“They took a whole bunch of assets from legally innocent people,” said Rep. Joy San Buenaventura, a main sponsor of the bill. “It’s basically legalized theft by the police, and that’s wrong.”
The audit makes it evident that the program needs reform, she said. It also pointed out a slew of other problems, including failing to account for forfeited property, mismanaging program funds, failing to allocate 20% of the proceeds for drug prevention as is required by law, and failing to establish administrative rules.
“The audit shows that the attorney general was lackadaisical in handling assets,” San Buenaventura said.
Another major change would require the Attorney General’s office to use half of the forfeited property and proceeds from its sale on drug diversion programs, and the other half to go to the state general fund. Currently, half of the proceeds go to the AG’s office and the other half is split by police departments and prosecutors offices.
The AG’s office funds, in part, the program’s costs and the salaries of staff members with its 50% allocation. In February, the department testified at the Legislature that the reform would “gut the revolving criminal forfeiture funds.”
The Attorney General’s office did not respond to requests for an interview, but a spokesman told Civil Beat the department remains in opposition.
Law enforcement agencies can use the money to pay for such things as equipment and training. For example, the Honolulu Police Department, which opposed the bill, uses it to pay for partial tuition reimbursement and for officers who take police-related classes and training, according to Michelle Yu, an HPD spokeswoman.
“If House Bill 748 passes, this program will be discontinued,” she said in an emailed statement. “HPD supports the veto of this bill.”
Opponents of the program say it motivates law enforcement agencies to “police for profit.”
“If they’re relying on this in any way, then that’s a good reason for reform,” said Mandy Fernandes, policy director for the American Civil Liberties Union of Hawaii. These funds are unstable by nature and vary year to year, and the fact that agencies stand to gain 25 percent of the proceeds might influence how the law is enforced.
Redirecting the proceeds to the state’s general fund would “dilute the profit incentive,” she said.
The Honolulu Prosecutor’s Office declined to comment, but previously told the Legislature in testimony that “concerns about ‘innocent owners’ being deprived of their property or ‘policing for profit’ are unfounded.”
“We are confident that property is being seized and forfeited fairly and equitably and the abuse present in other jurisdictions simply does not exist here,” the prosecutor’s office added.
The department plans on sending a letter to the governor urging him to veto the bill, spokesman Brooks Baehr said.
The governor has not indicated whether he intends to sign or veto the bill, his spokeswoman said. Ige has plenty of time to decide; if he plans to veto it, he just needs to let the Legislature know by June 24.
This is San Buenaventura’s second crack at getting an asset forfeiture reform bill passed. An attorney herself, she tried unsuccessfully in 2015, and she said she’s not surprised that prosecutors want to see the latest effort vetoed.
But she said she’s pushing on because it continues to be a problem in her district on the Big Island. She’s heard from families having their generators and vehicles seized, both of which they depend on for daily life, because someone in the family was suspected of a crime.
“We’re not saying to remove asset forfeiture altogether,” she said. “We’re just saying let’s make sure you’re taking them away from criminals and not innocent people.”
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