HONOLULU, Hawaii (July 17, 2019) – Last week, Hawaii Gov. David Ige caved to law enforcement pressure and vetoed a bill that would have reformed the state’s asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most cases.
A coalition of six Democrats sponsored House Bill 748 (HB748). The legislation would have required prosecutors to get a criminal conviction before proceeding with the forfeiture process in most situations.
The House unanimously approved Senate amendments to HB748. The Senate previously passed the bill 25-0.
Ige vetoed the bill on July 9 and issued a 12-page veto statement that largely parroted law enforcement lobbyist talking points. Ige indicated he planned to veto the bill prior to taking action, saying that “safeguards presently exist in Hawaii’s asset forfeiture statutes that prevent the abuses cited in the bill.”
Drug Policy Forum of Hawaii executive director Carl Bergquist said, “The notion that there is no abuse of civil asset forfeiture here in Hawaii is quaint.”
The Institute for Justice calls Hawaii’s asset forfeiture laws “among the nation’s worst.” As it stands police can take people’s property without even charging them with a crime. According to Forbes, the state took in over $11.5 million in asset forfeiture proceeds between 2006 and 2015. Over 92 percent of the attorney general’s forfeiture expenditures last year—nearly $314,000—funded payroll for its Asset Forfeiture Unit.
According to Forbes:
A state audit from last summer revealed that the government forfeited property “without a corresponding criminal charge in 26 percent of the asset forfeiture cases closed” in fiscal 2015. And in another 4 percent of cases, the state forfeited property even when charges were dismissed. In other words, property was confiscated without a criminal conviction in nearly one-third of Hawaii’s forfeiture cases.
HB748 addressed the “policing for profit” motive inherent in the current asset forfeiture process by changing how forfeiture proceeds are disbursed. Under the law, proceeds after reimbursing expenses incurred by the attorney general would have been deposited in the general fund. Under current law, 25 percent of forfeiture funds go directly to police department budgets, 25 percent to prosecuting attorneys and 50 percent to the attorney general.
NECESSARY
While some people believe the Supreme Court “ended asset forfeiture,” the recent opinion in Timbs v. Indiana ended nothing. Without further action, civil asset forfeiture remains. Additionally, as law professor Ilya Somin noted, the Court left an important issue unresolved. What exactly counts as an “excessive” in the civil forfeiture context?
“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”
Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts will address this “over the next few years,” or they can do what a number of states have already taken steps to do, end the practice on a state level, and opt out of the federal equitable sharing program as well.
FEDERAL LOOPHOLE
While final passage of HB748 would have significantly reformed Hawaii’s asset forfeiture laws, it failed to address a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a 2017 policy directive issued by then-Attorney General Jeff Sessions for the Department of Justice (DOJ).
A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. The DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.
Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.
Until recently, California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.
The Hawaii legislature should close this loophole by effectively withdrawing from the federal program.
A local, county or state law enforcement agency shall not refer, transfer or otherwise relinquish possession of property seized under state law to a federal agency by way of adoption of the seized property or other means by the federal agency for the purpose of the property’s forfeiture under the federal Controlled Substances Act, Public Law 91 513-Oct. 27, 1970.under the federal Controlled Substances Act or other federal law.
In a case in which the aggregate net equity value of the property and currency seized has a value of $50,000 or less, excluding the value of contraband, a local, county or state law enforcement agency or participant in a joint task force or other multijurisdictional collaboration with the federal government (agency) shall transfer responsibility for the seized property to the state prosecuting authority for forfeiture under state law.
If the federal government prohibits the transfer of seized property and currency to the state prosecuting authority as required by paragraph (1) and instead requires the property be transferred to the federal government for forfeiture under federal law, the agency is prohibited from accepting payment of any kind or distribution of forfeiture proceeds from the federal government.
As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.
Why?
We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.
