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Former Texas Republican Congressman and presidential candidate Ron Paul used to infamously have a motto on his desk that read, “Don’t steal, the government hates competition.” Funny as that may seem, that saying holds especially true for the State of Hawaii, whose civil asset forfeiture laws rank among the worst in the nation by the independent Institute for Justice’s “Policing for Profit” scorecard.
Rated a D-minus for “Low bar to forfeit and no conviction required,” “Poor protections for innocent third-party property owners,” and “100% of forfeiture proceeds go to law enforcement,” the Institute for Justice estimated that between the years 2000 and 2013 alone, the State of Hawaii confiscated some $17.2 million dollars in civil assets.
Last session, due to mounting public outrage and the State Auditor’s revelations that the Attorney General’s office mismanaged forfeiture funds, the Legislature passed House Bill 748, which would reform the process of civil asset forfeiture.
So important was the measure that its preamble included a reference to the late Dr. Martin Luther King that, “An injustice anywhere is a threat to justice everywhere, and the purpose of this Act is to end civil asset forfeiture without conviction, which undermines the fair administration of justice and the rule of law.”
Surprisingly, Gov. David Ige vetoed the measure, proclaiming in Governor’s Message 1377 “This bill is objectionable because it eliminates civil forfeiture as an effective and critically important law enforcement tool.”
Invoking the precedent of U.S. v. Usery, Ige’s Statement of Objections went on to say the forfeiture statute “is designed to ensure that the economic benefits of committing a crime do not outweigh the consequential criminal penalties; otherwise, without the forfeiture statute, an individual might determine that the money gained from gambling activities outweighs the costs associated with criminal convictions.”
Ige’s ultimate rationale for rejecting HB 748 was to assure residents that “the concerns referenced in the bill are misleading because they identify abuses that occur in other jurisdictions but do not happen in Hawaii, where we presently have significant safeguards against abuse”; this theory seems invalidated by the State Auditor’s review, which characterized the asset forfeiture program in June 2018 as one that “lacks policies and procedures, and has a program manager who did not guide and oversee day-to-day activities and financial management during our audit period.”
Ige’s failure to pass HB 748 sent shockwaves both in Hawaii and around the nation, and he was characterized by many observers as being irrational and unreasonable. Ige, however, may have another chance to redeem himself.
This session, Rep. San Buenaventura has introduced House Bill 2069, which again seeks to address the ongoing public concerns over civil asset forfeiture, and is a more streamlined version of last session’s HB 748. Still, there are hidden reefs that can shipwreck well-intentioned efforts to reform the process.
Mike Maharrey, communications director for the Tenth Amendment Center, an organization which promotes state’s rights and upholding constitutional principles, is monitoring HB 2069 and has concerns about the practice of civil asset forfeiture, in general.
“It’s hard to fathom that getting a conviction and punishing somebody by taking their stuff is remotely controversial. I don’t think it is to your average person,” Maharrey said, when asked about Ige potentially vetoing HB 2069, should it pass the Legislature. “But sadly, police departments have come to rely on the funding. I get it. Budgets are tight. But we shouldn’t be throwing basic due process out the window, just because local cops need a new police car.”
Maharrey points out that states are reforming civil asset forfeiture laws, “but many are leaving a loophole that state and local police can use to circumvent more strict state asset forfeiture processes.”
“We shouldn’t be throwing basic due process out the window, just because local cops need a new police car.” — Mike Maharrey, Tenth Amendment Center
This involves passing cases to federal agencies and letting the feds proceed with forfeiture under a looser federal process that doesn’t require a conviction, Maharrey says.
The feds give up to 80% of the proceeds back to the local department.
“So, the local cops can avoid that pesky need for conviction and still cash in on forfeiture,” he says. “State reforms should always include provisions that simply prohibit state and local police from passing cases to the feds.”
HB 2069 is presently referred to the House Judiciary and Finance committees, but has not yet been scheduled for a hearing.
Civil asset forfeiture hurts us all, but it is especially oppressive to a population that is already overburdened by so many other economic and regulatory factors. In approaching reform of this matter, both the Legislature and Ige should make the moral choice to side with the U.S. Constitution’s protection of private property and due process.
Hawaii leaders need to restore credibility in local government and trust in our legal system. The way they can do this is to pass civil asset forfeiture reform.
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