The vital purpose of Hawaii’s civil asset forfeiture laws is to take the profit out of crime, deter criminality and protect the community. That’s why the Dec. 31, 2020, commentary by Daryl James missed the mark (“Civil Opens in a new tab forfeiture and the high cost of innocence in Opens in a new tabHawaii Opens in a new tab,” Island Voices, Star-Advertiser).
Civil asset forfeiture allows authorities to combat crime by seizing property involved in criminal activity. Property can be seized only if it has a “substantial connection” to serious crimes, such as murder, kidnapping, gambling, drug trafficking, prostitution, and sex trafficking offenses. Examples of property substantially connected to crimes include the proceeds of criminal offenses (such as money from drug sales) or property used to facilitate the crimes (such as cash used to buy drugs, cars used to transport drugs, devices used for gambling and residences used as drug houses). A civil forfeiture action is brought against property, not individuals, and creates a powerful incentive for owners to use prudence to prevent the illicit use of their property.
Hawaii’s civil asset forfeiture laws contain robust safeguards for property owners. The initial seizure must be justified by a showing of probable cause that the property was involved in criminal activity. Notice of forfeiture must then be given to all persons known to have an interest in the property. Owners may contest a forfeiture and have their claims decided by a court or administrative official. Notably, the laws provide an “innocent owner” defense, preventing forfeiture of property used criminally if the owner did not know of or consent to the use. Also, forfeitures cannot be excessive — the value of the property seized may not be grossly disproportionate to the seriousness of the offense.
The state has the burden to prove, by a preponderance of the evidence, the connection between the property and particular crimes. This standard of proof is used in all civil litigation and requires presentation of competent evidence sufficient to persuade a court that something is more likely than not. As noted above, even if the state meets its burden, an innocent owner’s property cannot be forfeited.
However, civil forfeiture proceedings typically are the product of criminal investigations that result in criminal charges. The connection between property and the crimes is therefore often indisputable — for example, an illegal gambling room operator would be hard-pressed to dispute that seized machines were used to commit gambling crimes, or that cash recovered constituted gambling proceeds.
Importantly, the civil forfeiture laws are designed to deter crime, not to fund the state’s general operations. The threat of forfeiture takes the profit out of crime and creates a risk calculus for property owners deciding whether to use their property to commit crimes. A landowner will hopefully think twice before using his home as a meth lab, or using his vehicle to transport narcotics.
While forfeiture proceeds typically are not used directly to compensate crime victims — restitution orders normally accomplish this — they are used to train law enforcement agencies, promote the safety of the community and provide a disincentive to criminal activity. All are salutary goals that should be embraced by the community.
In 2018, Hawaii’s state auditor examined the asset forfeiture program and found no abusive or unjust practices. The auditor made recommendations, which the attorney general embraced, including the formal promulgation of administrative rules, the improved management and accounting of funds, and a shortening of the processing time of petitions. The Attorney General’s Office will continue to improve this critical program and to ensure it serves the public while providing safeguards against abuse.
Clare Connors is attorney general for the state of Hawaii.
