HONOLULU, Hawaii (Jan. 10, 2022) – The Hawaii legislature will consider three bills that would reform asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most cases during the 2022 legislative session. 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 three Democrats introduced Senate Bill 294 (SB294). An identical companion bill was filled in the House (HB659). The legislation would restrict asset forfeiture to felony cases and would require a criminal conviction before prosecutors could proceed with the process. 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 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.

Last year, SB294 passed the Senate by a 25-0 vote. The House then passed the measure with amendments. The Senate rejected the House amendments, sending the bill to a conference committee. That’s where things stalled.

According to Honolulu Civil Beat, the House and Senate had a tentative agreement on the bill, but House leadership backtracked and insisted the requirement for a criminal conviction be removed from the legislation. Sen. Karl Rhoads said the two chambers appear to be “far apart.”

“The House’s position on this issue has changed fairly substantially,” Rhoads said. “I think I still have a very difficult time with the fundamental fairness of having someone’s property taken away in a criminal context when they haven’t been convicted of anything. I don’t see a way forward.”

With the House and Senate sides deadlocked, the committee voted to defer the bill indefinitely.

SB294 and HB659 (which was deferred by the House Judiciary and Hawaiian Affairs Committee) will carry over to the 2022 legislative session. That means the conference committee can reconvene and try to reach a compromise on SB294. It’s also possible for the House Judiciary Committee to move HB659 along in the legislative process.

A third Senate bill (SB149) will also carry over to the 2022 legislative session. It would also require a criminal conviction before prosecutors could initiate the forfeiture process. SB149 passed the Senate Public Safety, Intergovernmental and Military Affairs Committee by a 5-0 vote and was referred to the Senate Judiciary Committee.

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.

FEDERAL LOOPHOLE

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.

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.

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.

WHAT’S NEXT

The best chance for asset forfeiture reform in 2022 is for the conference committee to reconvene and pass SB294 with the criminal conviction requirement in place. HB659 or SB149 can move forward if they pass their respective committees by a majority vote.

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