Hawaii’s auditor made headlines this month when it published a scathing audit of the state attorney general’s asset forfeiture program. The long-delayed report, requested in 2016 by state Rep. Joy San Buenaventura of Puna, is the first on the issue in over two decades.
Under civil forfeiture, police and prosecutors can take and permanently keep a person’s cash, car or other property without ever charging them with a crime. In 2015, the audit found, more than 1 in 4 forfeiture cases involved no corresponding criminal charges.
Making matters worse, Hawaii law allows police, prosecutors and the attorney general to keep and split 100 percent of forfeiture proceeds between them. This gives agencies an enormous incentive to forfeit property and spend the proceeds on virtually whatever they want, without traditional budgeting controls. As the audit notes, state forfeiture proceeds totaled around $11.6 million between 2006 and 2015.
Yet for over three decades, Hawaii’s attorney general has failed to govern the forfeiture program reliably, leading to mismanagement of forfeiture cases and seized property. In one of the audit’s more shocking findings, the state AG’s Office consistently failed to comply with a state law requiring it to use 20 percent of its share of forfeiture proceeds for drug prevention programs. While the office should have allocated more than $2 million in forfeiture revenue to such programs over the past 13 years, the audit could identify no such spending.
Yet during that time, over $2.6 million in forfeiture revenue was spent on salaries. It shouldn’t take an audit and 13 years to learn that millions were funneled into executive branch salaries while legislators and the public are left in the dark.
The results are a wake-up call for lawmakers and the governor. It is time to overhaul civil forfeiture in Hawaii.
First, the state needs to strengthen safeguards for innocent property owners. Hawaii should follow the lead of Nebraska and New Mexico and abolish civil forfeiture outright and replace it with criminal forfeiture. In those states, property is forfeited as part of a criminal proceeding and only after a conviction or plea deal.
Short of abolition, lawmakers can make it easier for property owners to fight back. Hawaii is one of only three states that require owners to post a bond before they can challenge forfeiture of their own property in court.
As a 2016 investigation by the Honolulu Star-Advertiser showed, innocent property owners have little incentive to assert their rights when seized property is less than the cost of the bond, much less the cost of legal counsel. The audit found that 85 percent of forfeiture cases went uncontested. The state should repeal its obstructive bond requirement.
In addition, Hawaii should follow Arizona and Colorado and adopt robust transparency laws that hold agencies accountable for their forfeiture activity and spending. Currently, public oversight is minimal in Hawaii. The state requires law enforcement agencies to report only the most basic details about the value and type of property they seize and forfeit for inclusion in the attorney general’s annual forfeiture reports. Moreover, those reports provide only the attorney general’s topline expenditures and are silent about how individual agencies spend their share.
Forfeiture accounts should also be subject to routine oversight, including annual independent audits, so that problems can be easily identified and quickly corrected. The public has a right to know immediately about any improper forfeiture spending.
As long as Hawaii allows law enforcement agencies to forfeit property and spend the proceeds with little public accountability, similar behavior will continue. Meaningful forfeiture reform is critical to protect the property rights and civil liberties of innocent property owners.
Nikos Leverenz is board president of the Drug Policy Forum of Hawaii. Jennifer McDonald is a research analyst at the Institute for Justice and co-author of “Forfeiture Transparency and Accountability: State-by-State and Federal Report Cards.”
