The following testimony was presented Feb. 2, 2023, by the Grassroot Institute of Hawaii to the Senate Committee on Judiciary.
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Feb. 2, 2022
10 a.m.
Via Videoconference
Conference Room 016
To: Senate Committee on Judiciary
Senator Karl Rhoads, Chair
Senator Mike Gabbard, Vice Chair
From: Grassroot Institute of Hawaii
Ted Kefalas, Director of Strategic Campaigns
Re: SB400 — RELATING TO PROPERTY FORFEITURE
Comments Only
Dear Chair and Committee Members:
The Grassroot Institute of Hawaii would like to offer its comments on SB400, which would reform the practice of civil asset forfeiture in the state.
Civil asset forfeiture in Hawaii has been the subject of criticism and concern. We commend the Legislature for focusing on this issue.
In 2020, a report card of civil asset forfeiture practices nationwide by the Institute of Justice gave Hawaii a D- and the dubious distinction of having some of the worst forfeiture laws in the country.[1]
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.[2]
The state audit found:
>> In 26% of asset forfeiture cases closed during fiscal 2015, property was forfeited without a corresponding criminal charge.
>> In 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.
The Office of the Auditor’s follow-up in 2021 found that the state Department of the Attorney General had only implemented two of its recommendations, with two partially implemented and two not implemented at all.
Among those recommendations that were ignored was that the department develop policies and procedures, “to ensure that petitions for administrative forfeiture are processed timely and consistently, that forfeited property and program funds are appropriately managed, and that proceeds from the sale of forfeited property are used for purposes intended by the Legislature.”
A separate unimplemented recommendation concerned the lack of a strict accounting and valuation system for forfeited property.[3]
Though the Department of the Attorney General has been given adequate time to increase the transparency and accountability of the state’s forfeiture program, the situation has not improved, and Hawaii continues to be among the worst states for property forfeiture. It is clear that reform is overdue.
By introducing a higher standard for forfeiture, this bill would take an important step in addressing many of the concerns raised in the audit.
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.
By limiting forfeiture to those situations where the property owner has been convicted of a felony, this bill addresses the auditor’s concerns while strengthening protections for innocent third-parties who can get swept up in a forfeiture case.
This bill also deserves praise for seeking to eliminate the monetary incentives that can arise from the practice of asset forfeiture. By directing the proceeds from the forfeiture program to the general fund and limiting the allowable expenses for monies in the criminal forfeiture fund, this bill would prevent any agency or group from having a financial interest in asset forfeiture.
The bill should also be praised for limiting the transfer of forfeiture property to federal agencies, a technique that has been used elsewhere to circumvent state restrictions on forfeiture.
In addition, the elimination of the language allowing liberal construction of the statute is a praiseworthy addition that further clarifies the intent of this bill.
Finally, the recording and reporting requirements included in the bill would help improve transparency and accountability within the program. This, in turn, would help improve public trust in government.
This bill, if enacted, would represent a giant leap forward in improving Hawaii’s forfeiture laws. As written, its changes would help make our state a nationwide model for forfeiture reform.
Thank you for the opportunity to submit our testimony.
Sincerely,
Ted Kefalas
Director of Strategic Campaigns
Grassroot Institute of Hawaii
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[1] Lisa Knepper, et al., “Policing for Profit: The Abuse of Civil Asset Forfeiture, 3rd Edition,” Institute for Justice, December 2020.
[2] “Audit of the Department of the Attorney General’s Asset Forfeiture Program,” Office of the Auditor, State of Hawaii, June 2018.
[3] “Follow-Up on Recommendations from Report No. 18-09, Audit of the Department of the Attorney General’s Asset Forfeiture Program,” Office of the Auditor, State of Hawaii, July 2021.
