By Carey Wedler
States across America are reforming policies on civil asset forfeiture, the controversial practice by which police seize property from citizens, often without even charging them with a crime.
According to the National Conference of State Legislatures, at least 11 states — California, Connecticut, Iowa, Minnesota, Missouri, Montana, Nevada, New Hampshire, Ohio, Oregon, and Vermont — have passed laws banning law enforcement from seizing property from people who have not been convicted of a crime, while three states — North Carolina, New Mexico, and Nebraska — have abolished civil forfeiture entirely.
Civil Asset Forfeiture in Hawaii
Hawaii’s lawmakers attempted to join the trend, but this week were met with a veto from Democratic Governor David Ige.
House Bill 748, introduced by Democratic representatives, would have limited police to seizing property only in cases where a felony conviction has been issued (within the practice of civil asset forfeiture, it is actually the property that is “convicted”). As the bill’s authors wrote in their introduction to the legislation:
The legislature finds that civil asset forfeiture frequently leaves innocent citizens deprived of personal property without having ever been charged or convicted of any crime. This amounts to government-sponsored theft.
According to the Institute for Justice (IJ), Hawaii is one of the worst-ranked states for civil asset forfeiture practices. In the second edition of its “Policing for Profit” report, the organization gave the state a grade of “D−” for its “low standard of proof,” which requires “only that the government show by a preponderance of the evidence that property is tied to a crime.” IJ also cited the heavy burden placed on citizens to prove they are not connected to the alleged crime tied to the forfeiture.
Hawaii’s current policy gives 100% of the funds and seized property to law enforcement, including state and local police, as well as prosecuting attorneys and the attorney general. HB 748 would have shifted some of the confiscated money and income generated from the sale of forfeited property to a general state fund to reduce the financial incentives police and prosecutors have to seize property and pursue convictions.
Very Profitable Practice for Law Enforcement
Indeed, Hawaiian law enforcement profits immensely from the practice. According to IJ’s report, between 2000 and 2013, law enforcement seized a total of $17,244,129 worth of currency, automobiles, and other property. Hawaii News Now reported in 2015 that the Honolulu Police Department was sitting on $15 million of extra funds thanks to the practice, either from cash seizures or the profit they generate from selling confiscated property. Despite this surplus, by April of that year, the department had spent only $37,000 of their holdings, instead petitioning the Honolulu City Council for $2.6 million to pay for new police cars, motorcycles, and surveillance cameras.
Considering how lucrative civil asset forfeiture is, it should come as no surprise that, as the Hawaii Civil Beat reported, the Honolulu Police Department, the Honolulu Prosecutor’s Office, and the Department of the Attorney General all opposed the reform bill. “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 Honolulu Prosecutor’s Office told the legislature.
In his veto explanation, Governor Ige echoed a similar refrain, claiming the state already has enough safeguards to prevent abuse. But supporters of the now-rejected bill disagree.
Addressing Ige’s perspective, which he also expressed last month prior to his official veto, Carl Bergquist, executive director of the Drug Policy Forum of Hawai’i, said:
The notion that there is no abuse of civil asset forfeiture here in Hawai’i is quaint. Last year’s audit reveals that there have been neither oversight nor rules in place to protect property owners from such abuse when it does occur.
According to data from a 2018 state audit analyzing seizures in 2015, in 26% of cases, no criminal charges were filed. In 4%, the charges were dismissed, meaning nearly one-third of civil asset forfeitures were conducted against people who had not been convicted or charged with a crime.
“They took a whole bunch of assets from legally innocent people,” said Rep. Joy San Buenaventura, who sponsored HB 748. “It’s basically legalized theft by the police, and that’s wrong.”
A [felony] conviction requirement would give police pause before going after low-hanging fruit, and it should be a bare minimum to uphold another notion, one eternal rather than quaint, due process.
That same audit also found the Attorney General had mismanaged forfeiture funds and failed to allocate a portion of them to drug prevention problems as required by law.
It is well-documented that civil asset forfeiture disproportionately affects minorities and the poor. Data from cities around the country from San Diego and Las Vegas to Chicago reflect that, as a 2018 research paperpublished in the Journal of Criminology and Public Policy noted, “civil forfeitures are disproportionately used against minorities and individuals with limited financial resources to challenge forfeiture actions.”
With Ige’s veto of the legislation, which Bergquist says mirrors reform enacted in other states, Hawaii will continue to deny its citizens due process and make a profit in the process.
In the 2018 Supreme Court case Timbs v. Indiana, justices ruled unanimously that the Eighth Amendment’s ban on excessive fines applies to states, as well, which will likely have implications for practices such as asset forfeiture. Further, as IJ notes, since 2014, 33 states and Washington, D.C., have implemented reforms.