J. Justin Wilson
J. Justin Wilson · June 25, 2019

Hawaii Gov. David Ige announced on Monday that he intends to veto HB 748, a bill that would substantially reform the state’s civil forfeiture laws and end law enforcement’s perverse incentive to police for profit. Under current law, agencies can confiscate valuable property without ever filing criminal charges. Once property has been forfeited and auctioned off, police and prosecuting attorneys each take a quarter of the proceeds, while the attorney general takes the remaining half.

“Civil forfeiture is one of the greatest threats to civil liberties in Hawaii today. Vetoing reform would maintain an abusive status quo that the bill rightly calls ‘government-sponsored theft,’” said Lee McGrath, senior legislative counsel at the Institute for Justice, which gave Hawaii a D- for its civil forfeiture laws, calling them “among the nation’s worst.” “Should the governor follow through with his veto, we strongly urge the Hawaii Legislature to override and vote to protect the constitutional rights of all Hawaiians.”

HB 748 would enact two key reforms. First and foremost, it would direct all state forfeiture proceeds to the general fund, minus administration and storage costs. A wide-ranging audit of the Attorney General’s Asset Forfeiture Program found that between 2006 and 2015, law enforcement forfeited more than $11.5 million worth of property, including cash, nearly 600 vehicles and 12 real estate properties.

But by letting agencies keep what they confiscate, current law encourages police and prosecutors to aggressively pursue forfeiture cases. In fact, the County of Kauai Office of the Prosecuting Attorney even admitted as much in a March letter opposing HB 748:  “With this financial incentive eliminated, it’s not hard to anticipate these agencies de-prioritizing forfeiture cases, choosing to spend precious human resources on other matters.” Should HB 748 become law, Hawaii would join only a handful of states and Washington, D.C. that have abolished this form of policing for profit.

Second, the bill would require a felony conviction (or its equivalent, like plea deals) before property could be taken with civil forfeiture. Today, 15 states require a conviction to forfeit property in civil court, while three states have gone further and have completely abolished civil forfeiture.

In his rationale behind his intent to veto, Gov. Ige claimed that “safeguards presently exist in Hawaii’s asset forfeiture statutes that prevent the abuses cited in the bill” and called civil forfeiture “an effective and critical law enforcement tool.”

Neither claim holds up to scrutiny.

First, Hawaii lacks many basic safeguards for property owners. Unlike criminal defendants, there is no presumption of innocence for owners looking to regain their seized property. According to state auditors, “property was forfeited without a corresponding criminal charge” in over a quarter of all cases closed in 2015.

Hawaii is also one of just three states that requires property owners to post a cash bond before they can even challenge a forfeiture in court. If owners fail to post a bond of $2,500 or 10 percent of the property’s value, whichever is greater, within 30 days of notice, the property is forfeited.

Worse, all forfeiture cases involving vehicles and property valued at under $100,000 (excluding real estate) begin as “administrative” forfeitures, which are proceedings overseen by the Department of the Attorney General. Unlike criminal court cases, where defendants must be proven guilty beyond a reasonable doubt before an impartial judge, administrative forfeitures occur without a court hearing with the property forfeited if prosecutors merely show that there was “probable cause” to link the property with alleged criminal activity. Between 2006 and 2015, 85% of all administrative forfeitures went uncontested.

Second, a recent Institute for Justice study of the nation’s largest forfeiture program found that more forfeiture proceeds do not help police fight crime or lower drug use. Instead, the study indicated that police use forfeiture to boost revenue.

“This study shows policymakers can undertake serious and much-needed forfeiture reforms without jeopardizing police effectiveness,” McGrath noted. “Enacting HB 748 would eliminate the financial incentives that encourage the pursuit of revenue over the pursuit of justice.”

Since the Institute for Justice began its End Forfeiture initiative in 2014, 33 states and the District of Columbia have enacted forfeiture reforms. In February, IJ secured a landmark victory in Timbs v. Indiana, where the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.”