HONOLULU, Hawaii (Feb. 19, 2021) – On Tuesday, a Hawaii Senate committee passed a bill that 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 open that allows police to circumvent stricter state laws by passing cases off to the feds.
A coalition of 13 Democrats introduced Senate Bill 149 (SB149) on Jan. 21. The legislation would restrict asset forfeiture to a covered criminal misdemeanor or felony offense and would require a criminal conviction before prosecutors could proceed with the process.
SB149 would make several other reforms to the state’s asset forfeiture process to protect property owners. I would change the standard of proof that the state must meet in order for property to be forfeited from “preponderance of the evidence” to “beyond a reasonable doubt.” It would also require the state to prove that owners consented to or possessed knowledge of the crime that led to the seizure of their property.
The proposed law would also address the “policing for profit” motive inherent in the forfeiture system by directing all forfeiture proceeds to be transferred to the general fund for public education purposes after the payment of expenses incurred during the forfeiture process. Under current law, 25 percent of forfeiture funds go to police agencies, 25 percent to prosecuting attorneys, and 50 percent go 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.
On Feb. 16, the Senate Public Safety, Intergovernmental and Military Affairs Committee passed SB149 by a 5-0 vote.
While passage of this legislation 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) that remains in place today. Without opting out of the federal asset forfeiture program, police will have an easy avenue to circumvent these important reforms.
“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 new 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 often bypass 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 House should amend the current legislation with the following 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.
While some people believe the Supreme Court “ended asset forfeiture, its 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 “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.
SB149 will now move to the Senate Judiciary Committee where it must pass by a majority vote before moving to the full Senate.