Bill Would Reform Civil Asset Forfeiture Program

The Hawai‘i State Legislature has sent HB748 HD2 SD2—a bill that would significantly reform the state’s civil asset forfeiture program—to Gov. Ige for his signature. The American Civil Liberties Union of Hawai‘i (ACLU of Hawai‘i) and Drug Policy Forum of Hawai‘i (DPFH), both of which supported HB748, have long championed policies to end the use of forfeiture, which is a relic of the failed War on Drugs.

Asset forfeiture is a law based on the idea that property can be charged with a crime independently of its owner. Administered in Hawai‘i by the Department of the Attorney General, funds are generated when law enforcement agencies seize a person’s property and sell it—often without a criminal conviction or even a criminal charge.

Although HB748 doesn’t stop law enforcement from initially seizing property, it will require a felony conviction before property is forfeited to the government. Moreover, it will dilute the “policing for profit” incentive for law enforcement by directing proceeds to the state’s general fund instead of earmarking funds back to the police and prosecutors.

As the Hawai‘i State Auditor’s bombshell audit revealed in 2018, in 26% of civil asset forfeiture cases no charges were even filed, let alone any conviction obtained. This underscored the legal absurdity of asset forfeiture: the owners were innocent, but the property somehow remained guilty. From 2006-2015, the average value of a vehicle forfeiture was $2,200 and $4,100. Such modest numbers indicate that asset forfeiture is used against average community members rather than drug kingpins. Finally, 85% of individuals whose property was seized did not even try to get it back. This is because people who do file a suit get stuck with costs for court bonds, attorney fees and missed days of work—and even after all that, they still might not win their property back.

The writing is on the wall that civil asset forfeiture must be reined in. Hawai‘i’s move to reform asset forfeiture policies comes as many other states have done the same, in 2019 alone those states include Michigan, North Dakota and Alabama.

“Thankfully the legislature saw the clear need for remedial action,” said Drug Policy Forum Hawai‘i Board President Nikos Leverenz. “Hopefully it will continue to closely monitor the program after this measure is signed into law. The baseline is simple: property should not be forfeited in the absence of a conviction and forfeiture proceeds belong to the public. Further, local law enforcement should not circumvent state protections through federal collaboration. Last year the State Auditor underscored how three decades of administrative neglect precipitated systemic abuse that resulted in a disregard for the rights of the innocent and misallocation of millions of dollars. This measure is a quiet yet important triumph for civil liberties.”

ACLU of Hawai‘i Policy Director Mandy Fernandes added: “Policing should have nothing to do with profit. The ACLU of Hawai‘i applauds the sponsors of this legislation for addressing this problem head-on, and we hope that the Governor signs this important reform into law. The auditor’s report from 2018 verified what we’ve long suspected—that this practice is being abused in Hawai‘i. The consequences of this are devastating—innocent people lose their jobs because their only means of transportation was forfeited, or their housing because their rent money was taken. It is unacceptable to maintain a system that so clearly incentivizes police and prosecutors to selectively enforce the law based on what will pad their budgets.”