Hawaii lawmakers are poised to pass legislation reforming the state’s civil asset forfeiture program, which allows law enforcement agencies to seize property, such as cars and cash, that they suspect is connected to criminal activity. But the bill could still be rejected by Gov. David Ige, who vetoed similar legislation in 2019.

Law enforcement agencies argue the seizures are an important tool for deterring crime. But the practice is controversial, and critics, including public defenders and civil liberties advocates, say it’s ripe for abuse.

Police are allowed to take property even if they never charge the owner with a crime or obtain a conviction. A 2018 state audit requested by the Legislature found that in 26% of civil asset forfeiture cases closed during the 2015 fiscal year, there were never any corresponding criminal charges. In 4% of cases, the underlying charge was ultimately dismissed.

Hawaii’s Office of the Public Defender called the finding “appalling” in testimony urging lawmakers to pass Senate Bill 294, which would require suspects to be convicted of a related crime before the state could permanently keep or auction off their property. The bill also would require that the crime be a felony.

While Hawaii’s asset forfeiture program was created to cripple drug trafficking and organized crime, in practice “it’s ordinary people, many with little or no connection to criminal activity,” who are often the targets, the Public Defender’s Office wrote in testimony on the bill. “Most seizures involve small dollar amounts, not huge sums of cash seized from drug traffickers.”

A 2016 investigation by the Honolulu Star-Advertiser found that during the 2014 and 2015 fiscal years, 80% of seizures in Hawaii involved money or property valued at $10,000 or less. Out of those 250 seizures, the average value was $2,648.

Half of the seizures during those years involved cash or property valued at $2,500 or less.

Costly seizures

Defense attorneys say the cost of challenging the seizure in court is often greater than the value of the confiscated property, and since these are civil cases, claimants aren’t afforded a public defender if they can’t pay an attorney to represent them.

Property, such as homes and cars, also can be seized from people who are not implicated in a crime but whose property was somehow connected to it. For instance, one man had his 2000 Honda Accord confiscated from his home in Waimanalo after police said they had reason to believe the ex-boyfriend of his daughter was driving it when he broke into an SUV at Makapuu and stole a handbag and other items. The car was later auctioned off to the highest bidder at the Neal S. Blaisdell Center.

The low threshold for seizing property can cause undue hardship for owners, said Mandy Fernandes, policy director for the Hawaii chapter of the American Civil Liberties Union. “This is often a substantial burden on the property owner, who may lose their job or home because the state seized their means of transportation or money needed to pay rent,” she wrote in testimony on SB 294.

The measure also would require that the cash and proceeds from the seizures be deposited into the state’s general fund, as opposed to the current practice of divvying it up among the seizing agencies, which is usually the county police department, the prosecuting attorney’s office and the state attorney general’s office, which adjudicates the majority of forfeiture cases. Critics say this creates a perverse financial incentive for law enforcement to pursue seizures.

New Mexico and Nebraska abolished their civil asset forfeiture programs in recent years, joining North Carolina, which did away with the practice in 1985, according to the Institute for Justice, a libertarian law firm. Dozens of states have also reformed their laws in recent years amid heightened scrutiny and media reports of abuses. Fifteen states currently require a conviction in criminal court in order for a civil forfeiture to proceed.

Proposal opponents

Hawaii’s law enforcement agencies have pushed back against changes to state law. The county police departments combined have seized $2.1 million in cash, $817,474 in vehicles and $441,994 in other property over the past three fiscal years, according to annual reports submitted to the Legislature. They say the program has adequate safeguards in place already.

Hawaii County Police Chief Paul Ferreira said the program wasn’t being abused and that many of the seizures were related to felony drug offenses by criminals who are often involved in “fatal traffic collisions, drug overdose deaths, as well as thefts, burglaries, robberies and other crimes in order to afford purchase of illicit narcotics.”

The Hawaii attorney general’s office, which administers the program, has said that it’s improved the program since the 2018 audit. At the end of 2019, Attorney General Clare Connors announced that administrative rules had been adopted to guide police and county prosecutors in conducting property seizures. The rules were supposed to have been created about three decades ago when the state passed its civil asset forfeiture law.

The attorney general’s office, as in past years, is urging the Legislature not to pass the reform bill.

In 2019, Ige vetoed a nearly identical bill, saying that “safeguards presently exist in Hawaii’s asset forfeiture statutes” to prevent abuses. He further opposed restricting seizures to felony offenses, saying there were serious misdemeanor and petty misdemeanor crimes that “negatively impact our society, natural resources, and environment.”

SB 294 has passed the Senate and on Wednesday passed its final committee in the House of Representatives. It’s expected to be debated in conference committee, the final stage of negotiation over bills.