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Ben Lowenthal: Hawaii simply won't abandon its strict civil asset forfeiture laws

Police can seize property without trial if they suspect it is related to a crime or poses a danger.

This may sound strange, but we still track both property and people. The reasoning is even stranger and goes back centuries.

Suppose you were living in 9th century Britain when something terrible happened. You were on your way to the market to sell something when a robber came out of the bushes, demanded your goods and then stabbed you with a dagger.

If caught, the mugger would be prosecuted (or worse), and so would his dagger. In effect, the Crown would confiscate it.

If there was no robber and you died when your cart accidentally tipped over, the crown could confiscate the evil items that caused the mishap. The cart, horse, and goods do not go to your family, but become a deodand—a “thing given to God”—and the crown, which conveniently declared itself to be the next best thing to God, benefits from it.

The supernatural rationale that maintains the Deodand still haunts us. The pursuit and confiscation of evil objects survived the Enlightenment and the Scientific Revolution and evolved into civil asset confiscation.

The concept really came into its own during Richard Nixon and Ronald Reagan's “War on Drugs.” Prosecutors and law enforcement increased efforts to seize property related to drug trafficking.

The losing performance turned out to be lucrative.

Houses, vehicles, cash and bank accounts were up for grabs. And the government profited so much that in 1984 the U.S. Attorney General declared that it was “now possible for a drug dealer to serve time in a forfeiture-funded prison after being arrested by agents while working in a forfeiture-funded prison Car drove a car financed by the forfeiture.” financed covert operation.”

Hundreds of items at the HPD Forfeited Items Auction at the Dole Cannery, including numerous bicycles.  Signs saying “Please do not touch or touch anything in the auction.”".  Potential buyers were not allowed to touch the items.  August 18, 2018
Hundreds of items, including bicycles, end up at an asset auction. In Hawaii, police can seize property “without trial” if the officer believes the property is related to a crime. (Cory Lum/Civil Beat/2018)

In 1988, the Hawaii attorney general's office and four district attorneys and police chiefs pushed forfeiture laws through the legislature, modeled on the federal government and Arizona.

These are the laws that still apply today.

Police can seize property “without trial” if officers believe the property is related to a crime. They can even seize property if they believe it poses a “direct or indirect threat to health or safety.”

All it takes is probable cause for the officer to believe a crime has occurred. No indictment, no trial, no proof beyond a reasonable doubt, and no criminal conviction required. The property owner is not even a party in this case. The defendant is the property, which might as well be an evil item from the 9th century. So we get wonderfully bizarre and perfectly pidgin-sounding lawsuits entitled “Carlisle v. One (1) Boat” or the amusing “United States v. Approximately One Terrier Mix Type Dog.”

It is very difficult for property owners to challenge the seizure of their property.

Of course, forfeiture laws allow owners to file a claim and challenge the seizure, but you have to pay. While other jurisdictions – including federal authorities – have eliminated this provision, Hawaii property owners who are not indigent are required to post a deposit of 10% of the property's assessed value or $2,500, “whichever is greater.” “. That means if the state takes $500 in cash, you'll need to post a $2,500 deposit to challenge the forfeiture.

Of course, you don't have to pay the deposit if you are indigent. However, since this is not a criminal case and you are not the defendant, you are not entitled to an attorney. Unless you have a free device, you're on your own. Good luck.

Members of the public/potential bidders view some of the vehicles prior to the auction of derelict property by the AG Offices at the Neal Blaisdell Exhibition Hall.  April 9, 2016.Members of the public/potential bidders view some of the vehicles prior to the auction of derelict property by the AG Offices at the Neal Blaisdell Exhibition Hall.  April 9, 2016.
At a state auction, bidders examine items confiscated by the police. (Cory Lum/Civil Beat/2016)

This may be why so few seizures are challenged. The state confiscates the property and sells it to the public at auction. It's a scary and sad affair when bidders look at confiscated property like sunglasses, cars, boats and gold chains. The proceeds are then divided among the law enforcement agencies themselves. District attorneys, the attorney general's office and law enforcement agencies will all receive a cut.

How much they earn is properly reported every year. In the 2021-2022 fiscal year, profits fell to $291,043. The report also said $175,179 was spent from the corrections fund this year.

These numbers are small compared to huge government budgets. Why do they do that?

Perhaps U.S. Supreme Court Justice Neal Gorsuch explains it best. Last week, he wrote separately to criticize law enforcement practices.

“Some authorities,” he wrote, “reportedly place particular emphasis on confiscating low-value items and relatively small amounts of cash in the hope that their actions will not be challenged because of the costs of litigating to recover the property.” are higher than the value of the property.” the property itself.”

He further points out that “a nation so jealous of its freedoms” allows these aggressive confiscation practices because “those the system exploits have relatively little power.”

The closest we came to change was in Hawaii in 2019, when the legislature passed a bill aimed at changing some of the most egregious parts of the law. Among other things, it would have eliminated the government's financial incentive to seize property by banning proceeds-sharing agreements, requiring more evidence than probable cause, and limiting forfeiture to crimes that would have actually resulted in a conviction.

The reason for the bill was simple. Lawmakers concluded that the state had committed “government-sponsored theft.”

Former Gov. David Ige vetoed the measure, saying he was proud of law enforcement's efforts to reduce crime. However, that didn't make much sense since you don't have to commit a crime to confiscate property. If you want to compare our deep blue, liberal state with others, Arkansas, Nebraska and North Carolina have passed laws similar to the one Ige opposed.

This year, with a new governor in place, senators introduced a more modest bill. But that wasn't the right year and it didn't make it out of the Ways and Means Committee. The seizures continue, and in the words of Judge Gorsuch, the system continues to prey on the weak.

Anna Harden

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