The following testimony was submitted by the Grassroot Institute of Hawaii for consideration on Feb. 3, 2022, by the House Committee on Judiciary & Hawaiian Affairs.
To: House Committee on Judiciary & Hawaiian Affairs
Rep. Mark M. Nakashima, Chair
Rep. Scot Z. Matayoshi, Vice Chair
From: Grassroot Institute of Hawaii
Joe Kent, Executive Vice President
Re: HB1965 — RELATING TO PROPERTY FORFEITURE
Dear Chair and Committee Members:
The Grassroot Institute of Hawaii would like to offer its comments on HB1965, which attempts to reform the practice of asset forfeiture in the state.
Civil asset forfeiture in Hawaii has been the subject of criticism and concern. Thus, we commend the Legislature for continuing to address these problems.
In a survey of civil asset forfeiture nationwide by the Institute of Justice, Hawaii earned a D- and the dubious distinction of having some of the worst forfeiture laws in the country.
Singled out for criticism was the state’s low standard of proof for showing how the property is tied to a crime.
In addition, Hawaii places the burden on innocent owners to prove they weren’t tied to the crime resulting in the forfeiture.
The result is a state forfeiture program open to abuse and able to prey on innocent property owners.
As the Hawaii state auditor wrote in a June 2018 report, Hawaii’s asset-forfeiture program lacks clear rules and procedures, inadequately manages funds and is badly in need of greater transparency.
The audit found that:
>> In 26% of asset forfeiture cases closed during fiscal 2015, property was forfeited without a corresponding criminal charge.
>> In another 4% of cases, the property was forfeited even though the charge was dismissed. Of those whose property was forfeited, very few petitioned for remission or mitigation. The state auditor speculated that most people might not know petition is an option because of the lack of transparency surrounding the forfeiture program.
This bill would raise the standard of proof required for forfeiture, from a “preponderance of the evidence” to “clear and convincing evidence.” But while this would be an improvement, the intent to help protect innocent owners is undermined by the fact that the bill would allow for forfeiture when a person is charged with an offense related to the property — not when that person is convicted.
Without the requirement of conviction, innocent owners would remain subject to the threat of an unjust forfeiture.
It is shocking that Hawaii residents can lose their property without being convicted of a crime. Given that many of those subject to forfeiture lack the knowledge, assets or ability to challenge the seizure, this makes the forfeiture program especially threatening to vulnerable populations.
There is one additional concern that should be addressed to mitigate the flaws of Hawaii’s forfeiture program: Currently, it allows a portion of the forfeiture proceeds to go to the agencies that initiated the forfeiture. This gives the local agencies a perverse financial incentive to pursue asset forfeiture.
We suggest amending the bill so that all forfeiture proceeds go to the general fund, thereby eliminating economic incentives associated with pursuing forfeiture.
This bill is a step in the right direction, but it does not go far enough to raise Hawaii’s dismal grade for unjust forfeiture laws. With a few changes, we could become a nationwide model for forfeiture reform.
Thank you for the opportunity to submit our testimony.
Executive Vice President
Grassroot Institute of Hawaii