Tighten rules for asset forfeiture

When law enforcement agents are able to seize vehicles, cash and other property from citizens without first obtaining a conviction or even filing a criminal charge, it reflects just how low the threshold is for seizures under state’s civil asset forfeiture program.

The program — under which law enforcement agencies can seize property suspected of being connected to criminal activity — is wide open to abuse and, therefore, in pressing need of reform.

Enough questionable cases have come to light to warrant changes. State lawmakers will need to take bold steps to tighten Hawaii’s overly broad laws that some local defense attorneys describe as “legalized theft.”

Hawaii’s civil forfeiture laws rank among the worst in the country, according to the Institute for Justice, a libertarian law firm that gave the state a D-minus rating. The ranking was based on the low standard of proof needed to seize property and the difficulty involved in retrieving the property if the owner is innocent. In fact, the presumption leans in the wrong direction: guilty until proven innocent.

Even more troubling is the state’s hefty financial stake in forfeiture proceeds: 25 percent going to police, 25 percent to prosecuting attorneys and 50 percent to the attorney general, the institute said.

Under that setup, financial incentive weighs heavily against the agencies’ prompt release of the seized goods to their rightful owners. During the 2014 and 2015 fiscal years, the seizures amounted to $2 million-plus in cash, cars, electronics and other property.

Under state law, property owners have two options in recovering seized items. Within 30 days of receiving a notice of forfeiture, they can file a petition with the attorney general’s office making their case for why they should get back the property. If that fails, owners can challenge the seizure in court.

However, a review of hundreds of civil forfeiture cases by Star-Advertiser writer Sophie Cocke found that in a great majority of cases in which money and property were seized under Hawaii laws, the cost of challenging the seizure in court outweighed the value of what was confiscated. It essentially becomes a no-win situation for property owners because fighting for their items in court just doesn’t pencil out.

It has evolved into a system unfairly weighted on the side of law enforcement at the expense of citizens’ due-process rights — one that needs greater balance.

Cocke’s article cited numerous questionable cases, including one in which a man’s 2000 Honda Accord was seized because police believed it was driven to Makapuu Lighthouse where an SUV had been broken into. The Honda owner was in prison so could not have committed the SUV crime, but police suspected his daughter’s boyfriend; the car was never returned and the boyfriend was never charged. The man got $1,620 for his $5,000 car when it was auctioned off by the Attorney General’s Office.

The case illustrates how dubious the reasoning can be in some of the forfeiture cases, and the need to tighten the state’s loose laws.

Just last session, lawmakers proposed a measure that would forbid property from being forfeited unless there is a conviction. However, the measure failed, having had formidable opposition from county police departments and prosecutor’s offices.

Honolulu Prosecutor Keith Kaneshiro, in testimony, told lawmakers that “current forfeiture laws are used to immediately and effectively disrupt the infrastructure of criminal activity.” He also claimed that Hawaii hadn’t suffered from the abuses reported in other states.

During the coming session, lawmakers will have to champion reform of civil forfeitures that forces law enforcement officers to seize property based on much more than just loose connections to criminal activity. After all, innocent until proven guilty should apply to one’s property as well.