Feb. 5, 2025, 2 p.m.
Hawaii State Capitol
Conference Room 325 and Videoconference
To: House Committee on Judiciary & Hawaiian Affairs
Rep. David A. Tarnas, Chair
Rep. Mahina Poepoe, Vice-Chair
From: Grassroot Institute of Hawaii
Ted Kefalas, Director of Strategic Campaigns
RE: COMMENTS IN SUPPORT OF HB126 — RELATING TO PROPERTY FORFEITURE
Aloha Chair Tarnas, Vice-Chair Poepoe and other members of the Committee,
The Grassroot Institute of Hawaii would like to offer its comments in support of HB126, which would increase transparency and accountability regarding asset forfeiture in Hawaii.
We commend this Committee for considering this issue, which has been the subject of growing national concern and criticism.
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]
That 2018 report found that:
>> In 26% of asset forfeiture cases closed during fiscal 2015, property was forfeited without a corresponding criminal charge.[3]
>> In 4% of the cases, the property was forfeited even though the charge was dismissed.[4] Of those whose property was forfeited, very few petitioned for remission or mitigation. The state auditor speculated that most people might not know that being able to petition is an option because of the lack of transparency surrounding the forfeiture program.
A follow-up report in 2021 by the state Office of the Auditor found that the state Department of the Attorney General had implemented only two of its 2018 recommendations, with two partially implemented and two not implemented at all.[5]
Among the recommendations that were ignored was that the AG 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.”
The other unimplemented recommendation concerned the lack of a strict accounting and valuation system for forfeited property.
In fiscal 2022, the Department of the Attorney General reported that there were 58 cases of forfeiture, 56 of which were uncontested. There were no claims for judicial review, and only two petitions for remission or mitigation.[6]
Rather than attest to the efficacy of the program, the lack of petitions and other claims suggests that the state auditor’s conclusions still hold: that there is too little transparency around the program and most people are unaware of their rights regarding forfeiture.
This bill’s improved reporting requirements would improve the transparency of the state’s forfeiture program. However, the bill does little to address the deeper issues surrounding asset forfeiture in Hawaii, especially the fact that property can be taken without conviction for the underlying offense and the fact that the proceeds of forfeitures can benefit the agencies that pursue 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 seizures, this makes the forfeiture program especially threatening to vulnerable populations.
We recommend limiting forfeiture to those situations where the property owner has been convicted of a felony. This would address the auditor’s concerns while strengthening protections for innocent third-parties who can get swept up in a forfeiture case.
Effective reform of Hawaii’s forfeiture law should also eliminate the monetary incentives that can arise from the practice of asset forfeiture. We recommend amending the section on disposition of forfeited property in order to direct the proceeds from the forfeiture program to the general fund. This change would prevent any agency or group from having a financial interest in asset forfeiture.
Finally, the bill should also include a provision limiting the transfer of forfeiture property to federal agencies, a technique that has been used elsewhere to circumvent state restrictions on forfeiture.
To sum up, Hawaii continues to be among the worst states for property forfeiture. It is clear that reform is overdue.
This bill, HB126, would improve the transparency of the state’s forfeiture program, but we urge the Committee to go even further in reforming Hawaii’s currently woeful asset forfeiture laws.
Thank you for the opportunity to testify.
Ted Kefalas
Director of Strategic Campaigns
Grassroot Institute of Hawaii
_____________
[1] Lisa Knepper, Jennifer McDonald, Kathy Sanchez, Elyse Smith Pohl, “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,” Hawaii Office of the Auditor, June 2018, p. 1.
[3] Ibid, p. 3.
[4] Ibid, p. 3.
[5] “Follow-Up on Recommendations from Report No. 18-09, Audit of the Department of the Attorney General’s Asset Forfeiture Program,” Hawaii Office of the Auditor, July 2021, p. 3.
[6] “Report on Proceedings under the Hawaii Omnibus Criminal Forfeiture Act,” Hawaii Department of the Attorney General, Nov. 23, 2022, p. 8.
