Law enforcement officials said they’ve implemented key recommendations of a 2018 state audit of Hawaii’s civil asset forfeiture program as they urge Gov. David Ige to move forward in vetoing a bill aimed at reforming the program, which allows police to confiscate property believed to have been used in the commission of certain crimes such as drug offenses and gambling.
However, the Department of the Attorney General, which administers the program, has yet to fix the audit’s major finding: That after three decades, the attorney general hadn’t adopted administrative rules to guide police and county prosecutors in conducting property seizures and the public in challenging the seizure of their property.
“Without these rules, the program provides only informal, piecemeal guidance to law enforcement agencies and the public,” according to the audit, which described the adoption of such rules as “painfully slow” and not a departmental priority.
The audit said the lack of formal rules posed a “significant risk to program operations.”
Attorney General Clare Connors told the Honolulu Star-Advertiser that her office had addressed most of the concerns in the audit.
“My understanding is that our office, which plays sort of the neutral role in this, implemented a lot of the changes,” Connors said. “We now have an asset forfeiture coordinator. We have done a lot of the things that were identified in the audit and we are intending to act on all of the recommendations, in fact.”
However, when asked if the department had adopted administrative rules for the program, Krishna Jayaram, a spokesman for the attorney general’s office, later said it had not.
“I acknowledge it’s taking time. There’s been a vetting process with the counties, delays due to changes in personnel and responsibilities within the division,” Jayaram said by email. “The expectation and goal is to get them done this calendar year.”
Hawaii’s civil asset forfeiture law, passed in 1988, expressly intended that administrative rules be adopted to the guide the program, going so far as to waive the usual procedural requirements for establishing rules, such as conducting public hearings, to expedite the process, according to the 2018 state audit.
The attorney general’s office began contemplating rules shortly after the law was passed, but “in the intervening decades has made no real progress toward that end,” the audit found.
In its annual reports to the Legislature from 2005 through 2010, the department cited the adoption of rules as a primary goal. In 2014, draft rules were finally presented to the attorney general that have now languished for five years without gaining final approval.
Hawaii County Prosecuting Attorney Mitch Roth, in a letter to Ige in May, also argued that numerous steps had been taken to address the audit’s recommendations, as he urged the governor to veto House Bill 748, aimed at reforming the civil asset forfeiture program.
“This bill simply discards the years of effort that went into the audit, subsequent recommendations and the administrative efforts to implement the findings and recommendations,” Roth wrote. “To replace the findings and recommendations of the audit with this bill is to ‘throw the baby out with the bathwater.’”
The letter was provided to the Honolulu Star-Advertiser on Wednesday in response to a May public records request for communications sent by law enforcement to the governor in regard to House Bill 748. The governor’s office is withholding communications on the bill from the attorney general’s office, citing attorney-client privilege.
The bill, among 20 measures Ige indicated last month he intends to veto, would require seized property be returned to its owner if ultimately there is no corresponding criminal conviction related to the property seizure. It also would restrict property seizures to felony crimes and divert seized cash and proceeds from property auctions to the state’s general fund.
Currently, those funds, and in some cases property such as cars, are divvied up between law enforcement agencies, which critics say is a conflict of interest.
The governor has until Tuesday to veto the bill before it automatically becomes law without his signature.
Rep. Joy San Buenaventura, (D, Pahoa-Kalapana), who introduced the bill and has urged the governor not to veto it, said the civil asset forfeiture program has been mismanaged for 30 years.
“They need to have rules in place,” she said.
Groups such as the Hawaii chapter of the American Civil Liberties Union and Drug Policy Forum of Hawaii have pushed for repeal or reform the program, which they say tramples due-process rights, and argue that the low bar for property seizures makes the program vulnerable to abuses.
Law enforcement can seize property even without charging the owner with a crime or obtaining a corresponding conviction.
In recent years, three states have abolished their civil asset forfeiture programs, and an additional 15 states require that there ultimately be a conviction in cases where property was seized, according to the Drug Policy Forum of Hawaii.
Hawaii’s audit found that in 26% of civil asset forfeiture cases closed in Hawaii during the 2015 fiscal year, there was never any corresponding criminal charge. In another 4% of cases, property was forfeited even though the underlying charge was ultimately dismissed.
Kim Coco Iwamoto, a board member of ACLU Hawaii, said passage of the bill reforming the civil asset forfeiture program was particularly important now in light of the June 27 felony convictions of former Honolulu Deputy Prosecutor Katherine Kealoha and her husband, former Honolulu Police Chief Louis Kealoha, on federal conspiracy and obstruction charges.
“In the midst of the Kealohas’ convictions, Hawaii law enforcement agencies are rightfully being scrutinized for corruption and abuses of their powers,” she told the Star-Advertiser. “Maintaining the system where government can pillage civilian assets does not pass the people’s smell test.”