Hawaii House Passes Bill to End Civil Asset Forfeiture, But Federal Loophole Remains

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Today, the Hawaii House passed a bill that would reform the state’s asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most cases. But the legislation leaves a loophole in place allowing police to circumvent stricter state laws by passing cases off to the feds.

A coalition of six Democrats introduced House Bill 748 (HB748) on Jan. 22. The legislation would require prosecutors to get a criminal conviction before proceeding with forfeiture proceedings.

The House passed HB748 today, unanimously.

The Institute for Justice calls Hawaii’s asset forfeiture laws “among the nation’s worst.” As it stands police can take people’s property without even charging them with a crime.

HB748 also addresses the “policing for profit” motive inherent in the current asset forfeiture process by changing how forfeiture proceeds are disbursed. Under the proposed law, 50 percent of proceeds would go to the Hawaii law enforcement assisted diversion program and the other half would go into the general fund. Under current law, 25 percent of forfeiture funds go directly to police department budgets, 25 percent to prosecuting attorneys and 50 percent to the attorney general.

While passage of HB748 would significantly reform Hawaii’s asset forfeiture laws, it fails to address a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a 2017 policy directive issued by then-Attorney General Jeff Sessions for the Department of Justice (DOJ).

FEDERAL LOOPHOLE

A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. The DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.

Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.

Until recently, California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.

The Hawaii legislature should close this loophole by effectively withdrawing from the federal program. We recommend HB748 be amended with the following language.

A local, county or state law enforcement agency shall not refer, transfer or otherwise relinquish possession of property seized under state law to a federal agency by way of adoption of the seized property or other means by the federal agency for the purpose of the property’s forfeiture under the federal Controlled Substances Act, Public Law 91 513-Oct. 27, 1970.under the federal Controlled Substances Act or other federal law.

In a case in which the aggregate net equity value of the property and currency seized has a value of $50,000 or less, excluding the value of contraband, a local, county or state law enforcement agency or participant in a joint task force or other multijurisdictional collaboration with the federal government (agency) shall transfer responsibility for the seized property to the state prosecuting authority for forfeiture under state law.

If the federal government prohibits the transfer of seized property and currency to the state prosecuting authority as required by paragraph (1) and instead requires the property be transferred to the federal government for forfeiture under federal law, the agency is prohibited from accepting payment of any kind or distribution of forfeiture proceeds from the federal government.

As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

WHAT’S NEXT

HB748 will no move to the Senate for further consideration. At the time of this report, it had not been referred to a Senate committee. Once it receives a committee assignment, it will need to pass by a majority vote before moving forward in the legislative process.

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