Bill Would Extend Forfeiture Actions to Petty Misdemeanors

A bill labelled “Draconian” by Hawaii County’s prosecuting attorney because it could result in government seizure of land for crimes such as harassment is being considered by the state Senate.

Senate Bill 1342 adds petty misdemeanors to the list of crimes that could trigger asset forfeiture, and also removes the current requirement that a felony offense is necessary for the seizure of real property.

Hawaii County Prosecutor Mitch Roth told Big Island Now he believes the bill goes too far.

Roth, whose previous work as a deputy prosecutor included numerous forfeiture cases, said the current law allows the government to go after property that was acquired as a result of a crime or that facilitated the commission of a crime.

He said that usually requires a felony, although forfeiture of some assets is sometimes used in misdemeanors such as sales of small amounts of marijuana.

Besides harassment, another example of a petty misdemeanor is possession of less than one ounce of marijuana.

“I think in this instance (the bill) would be a bit Draconian,” Roth said.

The bill on Thursday passed the second of three required readings and was referred to the Senate Committee on Judiciary and Labor. That committee’s chairman, Sen. Clayton Hee, has not yet scheduled it for a hearing.

On Tuesday it was unanimously approved, without changes, by the Senate Committee on Water and Land.

That committee’s chairperson, Big Island Sen. Malama Solomon, is also one of the co-introducers of the bill.

Neither Solomon nor Hee could be reached for comment.

The bill has the backing of the state Department of Land and Natural Resources.

In written testimony submitted to Water and Land, DLNR Chairman William Aila, Jr. said the bill would give his department a tool to use against those who frequently violate laws protecting natural, cultural, historical and recreational resources. Most of those laws involve only a misdemeanor or petty misdemeanor offense, he said.

“Frequently, these penalties are not a sufficient deterrent, and violations, often committed by the same individuals, continue to occur even after fines or other sanctions are ordered by our courts,” he said.

“The use of asset forfeiture as an enforcement tool will allow the department to take action against incessant violators of our resource laws by depriving violators of the means used to commit or facilitate the violation, or which are the proceeds derived from the violation,” his testimony said. “The use of asset forfeiture in petty misdemeanor cases would give the department further means to protect Hawaii’s precious resources to the fullest extent possible.”

The bill is also supported by the Pacific Alliance to Stop Slavery, which said it would be a deterrent to patronizing prostitutes, which is a petty misdemeanor.

The American Civil Liberties Union of Hawaii submitted testimony against the bill, saying it would unfairly target certain groups such as protestors, street performers and the homeless.

“SB 1342 expands asset forfeiture to petty misdemeanors, which means that individuals who commit minor crimes, such as trespassing on private property or staying in a park after hours, are subject to asset forfeiture,” said Laurie Temple, a staff attorney and legislative program director for the ACLU of Hawaii.

Another Big Island legislator, Sen. Russell Ruderman, called the measure “outrageous.”

“I think we should have more safeguards, not less, to protect people from forfeiture abuses,” he said, adding that he believed forfeiture should require at least a felony.

Ruderman (D-Puna, Pahala) is a member of the Committee on Water and Land but was unable to attend Tuesday’s hearing because its timing conflicted with that of another committee, Energy and Environment, of which he is vice-chair.

Ruderman said he intends to vote against the bill when it comes up for third reading.