Civil Asset Forfeiture & Hawai`i

Today’s post is all about civil asset forfeiture. There have been bills at the legislature for decades that have always been defeated by law enforcement (which is kind of ironic since stealing is a crime). The problem is pretty widespread. In 2015, The Washington Post reported that law enforcement took more stuff from people than burglars did. Here is the description of the program from the AG’s website: http://ag.hawaii.gov/cjd/asset-forfeiture-unit/:

ASSET FORFEITURE PROGRAM
The Asset Forfeiture Program was created in 1988 by a law enforcement coalition consisting of the Attorney General and the four county prosecutors and police chiefs. The purpose was to create a law which would be both procedurally and substantively comprehensive and, to the extent possible, uniform across the State. The program operates pursuant to Chapter 712A of the Hawaii Revised Statutes and provides a mechanism to enable law enforcement to take away the means by which criminals engage in their unlawful activity and the benefits derived from that unlawful activity.

Here is an excerpt about Hawai`i from the Institute for Justice’s 2010 report :

HAWAI`I EARNS A “D” IN POLICING FOR PROFIT REPORT

            Hawaii’s Law & Practices

            Hawaii earned among the worst grades in the nation for its civil forfeiture laws according to IJ’s rankings.  They are in need of serious reform.  The state may forfeit your property by showing by a preponderance of the evidence that the property was used in a crime.  Unfortunately, if you are an innocent owner and believe your property was wrongly seized, you bear the burden of proof.  Law enforcement has a strong incentive to seize property, as they receive 100 percent of the funds raised through civil forfeiture.  For analysis of Hawaii’s ranking, visit:  http://www.ij.org/PolicingForProfit/HI.

            To end policing for profit, the Institute for Justice recommends that, first, law enforcement should be required to convict people before taking their property.  Law enforcement agencies could still prosecute criminals and forfeit their ill-gotten possessions—but the rights of innocent property owners would be protected.  Second, police and prosecutors shouldn’t be paid on commission.  To end the perverse profit incentive, forfeiture revenue must be placed in a neutral fund, like a state’s general fund.  It should also be tracked and reported so law enforcement is held publicly accountable.  Finally, equitable sharing must be abolished to ensure that when states act to limit forfeiture abuse, law enforcement cannot evade the new rules and continue pocketing forfeiture money.

The 2nd Policing for Profit report from the Institute for Justice released in 2015 showed that Hawai`i has now slipped to a D- :

Hawaii earns a D- for its civil forfeiture laws:

  • Low bar to forfeit and no conviction required
  • Poor protections for innocent third-party property owners
  • 100% of forfeiture proceeds go to law enforcement

If you want to see how much money the law enforcement coalition raked in, go to: https://www.justice.gov/afp/reports-congress/fy2014-hawaii.

The first article is another scary proclamation from AG Sessions. This is followed by a rebuttal op-ed by a law professor who concludes: Sessions is doing exactly the wrong thing by doubling down on asset seizure. The message it sends is that the feds see the rest of us as prey, not as citizens. The attorney general should be ashamed to take that position. And, really, he should just be gone.

Jeff Sessions Announces Plan for Cops to Steal More Property by Increasing Civil Asset Forfeiture
Jack Burns, The Free Thought Project, July 19, 2017

Forget Russia. I’d fire Jeff Sessions over civil forfeiture.
Glenn Harlan Reynolds, Opinion columnist, USA Today, July 24, 2017

We need to reform this legal form of corruption. Again, Hawai`i is an outlier – just as we are in criminal justice reform. What is going on? Please raise your voice on issues like this, which you may think do not impact you – but once you get caught in the web, even if you are innocent, getting out of the system is not easy. This program defies “innocent until proven guilty” the constitution guarantees all citizens.

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