Hawaii Can Auction Off Your Car Without Ever Convicting You

Civil forfeiture allows the government of Hawaii to take your property and sell it for profit without proving you did anything wrong.

Online shoppers can bid on a sleek black Camaro, a commercial fishing boat, silver coins, and other items at a first-of-its-kind government auction today. However, the news release announcing the event from Hawaii's Department of the Attorney General does not tell the full story.

The state is vague about where it got these items to be auctioned. Public records show the government took nine of the 15 vehicles available from people who were never convicted. Overall, only seven of the 26 people named in these cases were convicted of any crimes.

Much or perhaps all of this property comes from civil forfeiture—a moneymaking scheme that allows the government to take and permanently keep cash, cars, and other valuables that are suspected to be connected with criminal activity without having to prove wrongdoing in criminal court.

Hawaii allows prosecutors to initiate forfeiture administratively for any property worth less than $100,000 and for all cars, planes, and boats. Once this happens, 96 percent of cases end without ever reaching a judge.

Property owners can demand their day in civil court, but they must file a hefty bond and pay for their own defense. This can be a problem when court costs outweigh the value of seized assets, which is the norm. Hawaii does not provide the data due to weak reporting laws, but the median currency forfeiture in 21 states with greater transparency is around $1,200—far below the amount needed to pay an attorney to mount a defense.

Many property owners do the math and walk away. Others waive their right to a trial and allow the Department of the Attorney General to adjudicate their cases instead, putting property owners in front of state attorneys working on the same side as the police.

Either way, the process is rigged. Hawaii allows law enforcement agencies to prevail with little more than guesswork. They do not have to specify when or where a crime occurred, who committed the crime, or how. They just have to show by a "preponderance of the evidence" that seized property has some plausible connection to wrongdoing. This means the state only needs a 51 percent probability of being right, even when cases get to court.

Speculation and innuendo often suffice to meet this standard. Our public-interest law firm, the Institute for Justice, has seen just about everything in cases nationwide. Talking too much, talking too little, acting too nervous, acting too calm, making too much eye contact, or making too little eye contact can all substitute for actual evidence—the kind that would hold up in a criminal trial.

Once a civil forfeiture case ends, Hawaii allows law enforcement agencies to keep 100 percent of the proceeds for themselves. The result is a perverse incentive to police for profit. The more an agency seizes, the more it can forfeit for off-budget expenses.

"The proceeds generated from auctions are used to fund law enforcement activities such as training and equipment, as well as to support program expenses," the Department of the Attorney General writes in its news release.

This is mostly correct. In reality, the bulk of forfeiture proceeds in Hawaii covers personnel, including salaries and overtime pay. In other words, the money goes into the pockets of the people in charge of seizures and forfeitures, creating even more incentives to patrol and prosecute aggressively.

The next biggest chunk of forfeiture revenue in Hawaii goes toward police travel and training. Yet nobody knows the frequency of these trips or the destinations because Hawaii does not track the data. Forfeiture reporting exists, but not with sufficient detail to allow meaningful oversight.

State lawmakers allow agencies to operate largely in the dark, inviting abuse. Many of the vehicles up for auction on Tuesday show what can go wrong.

The owners of the 2010 Chevrolet Camaro were not convicted. Neither were the owners of a 2010 Acura or a 2012 Honda Civic. More broadly, Hawaii does not even require an arrest for property to be seized and auctioned off.

Hawaii deserves better. State lawmakers could start by strengthening forfeiture reporting and adding constitutional safeguards like the right to counsel. Hawaii House Bill 126 and Senate Bill 722 would be steps in the right direction. Even better, Hawaii could join states like Arizona, New Mexico, and Wisconsin by making significant reforms, in which police could still take and keep property, but only when they prove wrongdoing and prove the seized property is connected to that crime.