HONOLULU, Hawaii (Dec. 30, 2019) – Two bills prefiled in the Hawaii Senate would reform asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most cases. But the legislation leaves a loophole in place allowing police to circumvent stricter state laws by passing cases off to the feds.
A bipartisan coalition of 13 senators introduced Senate Bill 1467 (SB1467) last January and it will carry over to the 2020 legislative session. The legislation would implement significant reforms to the state’s asset forfeiture laws, most significantly requiring prosecutors to get a criminal conviction before proceeding with forfeiture proceedings. The legislation would also raise the evidentiary standard the state must meet in order for property to be forfeited from “preponderance of the evidence” to “beyond a reasonable doubt.”
Last session, the Senate Judiciary Committee passed SB1467. It will begin the 2020 session in the Senate Ways and Means Committee for further consideration.
A coalition of four Democrats introduced Senate Bill 481 (SB481) with similar provisions last January as well, and it will also carry over into the 2020 legislative session.
Both bills also address the “policing for profit” motive inherent in the current asset forfeiture process. SB1467 would direct all forfeiture proceeds to the general revenue fund for public education purposes.SB481 would allocate one half of asset forfeiture proceeds to the Hawaii law enforcement assisted diversion program and the other half to the state general fund. Under current law, 25 percent of forfeiture funds go to police agencies, 25 percent to prosecuting attorneys and 50 percent to the attorney general.
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.
While passage of SB1467 or SB481 would significantly reform Hawaii’s asset forfeiture laws, it fails 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 Senate should amend the current legislation with language to close the loophole and opt the state out of equitable sharing.
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.
Very few cases exceed the $50,000 threshold.
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.
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.
Both bills will be reintroduced when the Hawaii General Assembly convenes its 2020 regular session on Jan. 15.