I’ve written before about the evils of Civil Asset Forfeiture. So when I saw that Hawaii’s Legislature had a bill to curb this vile practice, I just had to research it further.
Dubbed as a way to hit criminals where it hurts, the idea of civil asset forfeiture may sound appealing. Who wouldn’t want to see criminals pay with their ill gotten booty? Sadly, as is usually the case, theory and practice are as different as night and day.
SECTION 1. The legislature finds that civil asset forfeiture frequently leaves innocent citizens deprived of personal property without having ever been charged or convicted of any crime. This amounts to government-sponsored theft. The fair administration of justice means ensuring that not a single innocent individual’s personal property is permanently seized without just cause and conviction, or compensation.
An injustice anywhere is a threat to justice everywhere, and the purpose of this Act is to end civil asset forfeiture without conviction, which undermines the fair administration of justice and the rule of law.
HI HB 2069
The gaping loophole in most civil asset forfeiture laws is the fact that you did not even have to be charged with a crime, much less convicted, before your assets were stolen. Imagine having a law enforcement official pull you over or come to your house, claim they believed your property was acquired through criminal means, and then take that property. No proof that it was attained illegally? Not even a charge that you had done something wrong? Worse, you then find out that if you want your property back, you have to hire a lawyer and take the government who stole your stuff to court? All in a vain hope that the government-run court would find in your favor rather than the agency that worked for the same government as they did? Sound hopeless? Pretty much. Sound unfair? No question. Sound unconstitutional? On so many levels. And with thousands, even millions, of dollars being added to the state’s coffers, the chances that they would give up the gravy train were pretty low.
Enter the House of the Hawaiian Legislature and House Bill 2069. I am often critical of the legislation this body frequently puts out, but I have to say, I like this one. Recognizing the theft possible under their civil asset forfeiture laws, they propose to change them. They even recognize the duty of administering justice means the need to protect the innocent, even from themselves. Civil asset forfeiture laws, as they stand, are violations of both state and U.S. Constitutions. And the Hawaiian Legislature has a simple way to fix that: Re-establish the rule of law by ending civil asset forfeiture without conviction of a crime.
The proposed change to their law seems simple enough:
(b) No property shall be forfeited under this chapter to the extent of an interest of an owner[,
by reason of any act or omission established by that owner to have been committed or omitted without the knowledge and consent of that owner;] by reason of:(i) The commission of any covered offense unless the:
(A) Covered offense is chargeable as a felony offense under state law; and
(B) Owner has been convicted of the covered offense by a verdict or plea, including a no contest plea or a deferred acceptance of guilty plea or no contest plea; or
(ii) Any act or omission established by that owner to have been committed or omitted without the knowledge and consent of that owner;
provided that nothing in this subsection shall be construed to prevent the seizure of property prior to conviction pursuant to section 712A-6.
Changes to Section 712A-5 of Hawaii Revised Statues proposed in HI HB 2069
In simple terms, rather than confiscating property based on an act or omission with or without the consent of the owner, the offense must be a felony and the owner must be convicted of the offense. If government believes you have ill gotten gains, they must convict you of a felony before they can keep your stuff. They may confiscate your property, but they cannot keep it unless you are convicted of the crime they claim you committed.
There is one other proposed change that I find interesting. Currently, any assets forfeited are split between the government that caused the seizure, the prosecuting attorney, and a forfeiture fund. Allowing those doing the confiscation to profit from it is a common feature of civil asset forfeiture legislation. This legislation changes that, to place any funds from the sale of the forfeited assets, after legal and sale costs, into the state’s general fund. I still don’t like the idea of governments profiting from their prosecutions, but the idea of the money going to the state’s general fund is less likely to encourage bad behavior from those initiating the forfeiture in the first place.
Conclusion
Is this legislation perfect? No. I do, however, find it a good start to reining in the abuse of power states have inflicted on their citizens. My biggest concern is the ability of these local entities to turn a case over for federal prosecution and then sharing in the booty. This loophole can be fixed. I hope the Legislators in Hawaii will do so in the near future.
