Asset forfeiture bill clears committee hurdle

  • Mitch Roth

The state Senate Judiciary Committee on Tuesday passed unanimously, with amendments, a bill that would make it more difficult for law enforcement agencies to seize private property in civil forfeiture cases.

Senate Bill 1485 now goes to Ways and Means, the senate’s money committee.

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The measure introduced by Judiciary Chairman Karl Rhoads, an Oahu Democrat, would raise the standard of proof the state must meet in order for property to be forfeited from a “preponderance of the evidence” to “beyond a reasonable doubt” if passed into law. It also would direct proceeds from a civil forfeiture to the general fund for public education purposes.

According to the bill, at least three states — Nebraska, North Carolina and New Mexico — abolished civil forfeiture, and 15 states now require a criminal conviction for most or all forfeiture cases.

Currently under Hawaii law, all forfeiture proceeds are divided among the state and county law enforcement agencies that were involved in the seizure and forfeiture.

The bill also would repeal administrative forfeiture proceedings, a process in which the Department of Attorney General can seize property in a quasi-judicial proceeding without a judge.

Sen. Russell Ruderman, a Puna Democrat, is a co-sponsor of the legislation, which was written in response to a 2018 state auditor’s report that found in fiscal year 2015, 26 percent of property seized was done so without a corresponding criminal conviction.

The report also concluded that between fiscal years 2013 and 2015, 107 petitions for administrative forfeiture, 14 percent of the total filed, were dismissed “for reasons such as lack of probable cause, failure to establish a nexus between the seized property and a covered offense, insufficient notice to property owners of forfeiture procedures and technical errors in documents.”

According to the auditor’s report, between fiscal years 2006 and 2015, $11.5 million in private assets were seized, including $2.7 million in cash, $2.45 million in vehicles, $1.267 million in real property and more than $5 million in what was termed “multiple” and “miscellaneous” assets.

The attorney general’s office submitted written testimony raising questions about its responsibilities if the bill is passed into law and asked it be held. All four county prosecutors also oppose the measure.

Hawaii County Prosecutor Mitch Roth called the committee’s endorsement of the measure “unfortunate.”

“We use forfeiture as a tool to fight crime; it’s one of the tools that keeps our communities safer and healthier,” Roth said. “In the United States in 2017, over 70,000 people died because of drug overdoses.

“… With this change, if it goes through, it will make it a lot more difficult to go after drug dealers and other criminals. We’re trying to go after the money and disrupt the organization. And by doing this, by making these changes in the asset forfeiture laws, it’s putting everybody in the state at a lot more risk. … When we deal with forfeiture, we take away the drug dealers’ money.

“We often make a bigger imprint than when we try to put them in prison, as we don’t have enough prison space.”

Those in favor include the American Civil Liberties Union of Hawaii and the Drug Policy Forum of Hawaii.

The president of the latter, Niko Leverenz, called the auditor’s report “a clear picture of (a) system that is not accountable to the Legislature or the public” and the committee’s action “a significant first step to reforming this state’s wayward practice of asset forfeiture.”

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“The right to be secure in one’s property shouldn’t be transgressed upon without adequate legal safeguards to ensure the fair administration of justice,” Leverenz said.

Email John Burnett at jburnett@hawaiitribune-herald.com.

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