Last week, Hawaii’s state auditor released a report outlining systematic mismanagement of the state’s civil asset forfeiture program between 2005 and 2017. The audit revealed that the Office of the Attorney General, which oversees the program, improperly managed funds, did not correctly account for seized property, and did not allocate $2 million required to go to drug prevention.
As State Auditor Les Kondo explained, “With the bar to seize and forfeit private property in Hawaii so low, the department must manage the program with a heightened degree of transparency and accountability. … We found that not to be the case.”
The Institute for Justice (IJ), which fights for civil asset forfeiture reform across the country, had graded Hawaii’s civil asset forfeiture program a D+ overall. When it comes to its accounting procedures, however, they awarded Hawaii an F, the lowest possible grade.
While an increasing number of states require a criminal conviction before law enforcement can seize property, all that is needed in Hawaii is probable cause. In 26 percent of civil asset forfeiture cases in 2015, no one was charged with a crime. In a further 4 percent of cases, despite the related criminal charges being dropped, the property was still forfeited.
Even though owners have the right to go to court or file a petition—also known as mitigation or remission—to get their property back, few exercise this option. The audit suggests that the AG’s office has failed to give clear guidance to the public on how to get their property back. The civil asset forfeiture procedure “provides for remission or mitigation, but nobody really knows what it is,” said Kondo.
Additionally, it found that the AG’s office had failed to disseminate guidance on civil asset forfeiture rules to county prosecutors and law enforcement.
State Representative Joy San Buenaventura believes there is another reason few petition to get their property back: since asset forfeiture is a civil (not criminal) procedure, property owners cannot be represented by public defenders. This means people on low incomes are unable to afford to contest their cases.
“They pick on people who don’t have the financial resources to fight them,” said San Buenaventura.
Attorney General Russell Suzuki responded to the audit, saying his department is giving the final review to newly drafted rules on civil asset forfeiture. The program’s manager, he said, is moving “in the right direction” when it comes to improving oversight and accountability.
As IJ’s Jennifer McDonald explained, Hawaii’s poor accounting is troubling. “With forfeiture, law enforcement agencies can keep some or all of the proceeds from the property they take. This enables them to generate and spend funds outside of the normal appropriations process, which undermines the legislature’s power of the purse.”
Will Espero, a candidate for lieutenant governor, welcomed the report and argued it should be the starting point for broad reform of civil asset forfeiture procedures in the state. “Just about everybody I talk to says, ‘you’re right—if you don’t have a conviction, government should not be taking your money,’” he said.
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