Hawaii was poised to join more than a dozen other states that require a criminal conviction before police can keep seized property, but a veto from the state's governor could derail the reform efforts and keep in place what civil liberties groups and the legislation's authors say amounts to "government-sponsored theft."
Hawaii Gov. David Ige, a Democrat, announced Monday he intends to veto H.B. 748, a bill that would enact sweeping reforms to the state's civil forfeiture laws, claiming "safeguards presently exist in Hawaii's asset forfeiture statutes that prevent the abuses cited in the bill."
The bill, passed by the state legislature in April, would require a criminal conviction before Hawaii law enforcement could forfeit property through civil forfeiture, and it would redirect forfeiture revenue into the state's general fund, instead of directly into police and district attorney office budgets.
Under civil asset forfeiture laws, police can seize property suspected of being connected to criminal activity, even if the owner is never charged with or convicted of a crime.
Law enforcement groups say civil asset forfeiture is an essential tool to combat drug trafficking and other organized crime by targeting the flow of illicit proceeds. However, civil liberties groups say the practice flips the presumption of innocence on its head and has too few due process protections for property owners.
More than half of all states have passed some form of forfeiture reform over the past decade, and 18 now require criminal convictions before forfeitures can be initiated.
Lee McGrath, senior legislative counsel at the Institute for Justice, a libertarian-leaning public interest law firm that has challenged asset forfeiture laws in several states, said in a statement that Ige's veto "would maintain an abusive status quo that the bill rightly calls 'government-sponsored theft.'"
Honolulu Civil Beat reports that Ige, asked why he planned on vetoing the bill, said he's "proud of our law enforcement. We don't see the kind of abuse that occurs in other states."
Unfortunately, the Aloha Spirit, although it is enshrined in Hawaii's laws, is not a substitute for actual government accountability.
The Hawaii State Auditor released a report last year finding the state's asset forfeiture program doesn't properly track what happens to property seized from people or properly spend those funds. In fact, the state misallocated $2 million in forfeiture revenues, Honolulu Civil Beat reported:
According to the audit, the Office of the Attorney General, which administers the program, has failed to account for property obtained by forfeiture, inadequately managed program funds and failed to allocate some $2 million for drug prevention as required by law.
In addition, the audit said, the AG's office has failed to promulgate administrative rules needed to provide guidance to law enforcement and county prosecutors, who initiate forfeitures, and the public, who might have their assets seized.
"With the bar to seize and forfeit private property in Hawai'i so low, the department must manage the program with a heightened degree of transparency and accountability," State Auditor Les Kondo said in a statement. "We found that not to be the case."
According to the auditor's report, Hawaii law enforcement seized $11.5 million in property and cash between 2006 and 2015. A quarter of all asset forfeitures in 2015 in Hawaii were closed with no criminal charges.
Hawaii newspapers have also covered the sort of abusive asset forfeiture cases that Ige claims do not exist. For example, the Honolulu Star-Advertiser reported on the case of Darrell Teixeira, whose 2000 Honda Accord was seized by police under suspicion that an ex-boyfriend of Teixeira's daughter took the car and broken into an SUV. The ex-boyfriend was never charged with a crime, nor were Teixeira or his daughter ever implicated. Teixeira had a pretty good alibi. He was in prison at the time. Nevertheless, the car was auctioned off.
Honolulu Civil Beat covered the case of Marilou Chin, whose Mercury Mountaineer was seized by police and forfeited after her son took her car out while she was sleeping and was arrested for, but never charged or convicted of, felony burglary.
"The notion that there is no abuse of civil asset forfeiture here in Hawai'i is quaint," Carl Bergquist, executive director of the Drug Policy Forum of Hawaii, a group that supports the bill, said in a statement.
Law enforcement groups across the state opposed the bill, and some were more explicit than others about their reasons. "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," the Kauai County prosecuting attorney wrote in a March letter opposing the bill.
The Institute for Justice gave Hawaii a "D-" grade for its civil forfeiture laws, calling them "among the nation's worst."
"Should the governor follow through with his veto," McGrath said, "we strongly urge the Hawaii Legislature to override and vote to protect the constitutional rights of all Hawaiians." Ige has until July 9 to reconsider his veto.