The State of Aloha

You’d think we would have left the Middle Ages behind us by now. And yet, out of this odd time came a principle that still haunts our courts of law. Courts in 11th-century England held that when a severe crime like murder or other killings were committed, not only would the perpetrator of the crime be punished (usually with death), but the objects that helped cause the death were blamed and confiscated by the government. The theory was based on the superstition that the object itself was evil. As a result, the government confiscated property from offenders.

Sticks, swords, horses and cows were all taken by the Crown. The practice remained in some form or another part of the legal landscape.

But while it has never left, it didn’t really take off in the 19th and 20th centuries either. That is until Richard Nixon declared a War on Drugs. In a frenzy to criminalize narcotics Congress allowed law enforcement officers and prosecutors to seize any assets related to drug offenses.

Nixon’s war escalated into Ronald Reagan’s crusade. Law enforcement’s forfeiture powers expanded even further. Any monetary transaction that could be linked back to unlawful activity was now subject to forfeiture by the federal government. Houses, vehicles, bank accounts and anything of value weren’t safe from forfeiture.

The rapid forfeiture was used to pay for government services and properties. It was so rampant that by 1984, Reagan’s attorney general bragged that it was “now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation.”

Hawaii joined all the other states in passing its own forfeiture laws. By 1989, our Legislature passed a comprehensive forfeiture law allowing county police departments, the state Department of the Attorney General and prosecutors to seize property related to just about any criminal offense. It’s proved to be a gold mine for law enforcement. County prosecutors, the police and the state all get a share of forfeited property. In 2012, the U.S. Department of Justice reported a record total of $4.2 billion in forfeited property.

As for Hawaii’s forfeited property, check out the annual forfeiture sale at the Neal Blaisdell Center in Honolulu. It’s a semi-annual sale of items seized pursuant to our sweeping forfeiture laws. Fancy watches, sunglasses, cars and other assets that used to belong to people are for sale. The money goes directly to the state.

At first blush this all seems like a good idea. If you do the crime, not only will you do the time, but your stuff should get confiscated. Reformers, however, argue that it’s not like that.

A forfeiture proceeding can arise from felonies and petty misdemeanors. It also doesn’t have to wait for a conviction. Forfeiture can happen with nothing more than probable cause to believe a crime occurred. That’s all that you need. If the prosecution drops charges against a person, the government can still take property related to the event. Even when a defendant is exonerated, the forfeiture specter remains.

After decades of expansive powers to the police across the country, reform is starting to solidify. This year, the Legislature passed a bill that put a modest limit on forfeiture powers. It would require a criminal conviction for a felony offense before the government could take property. And even then the money wouldn’t be split between the police and the county. All of it would go to the general fund and stay out of police coffers.

Prosecutors and police departments rose up against this bill. They raised the old Reaganite justification for the laws: It’s tough on crime (even when the prosecution doesn’t bring a crime) and raises money for law enforcement. The Legislature was not convinced.

The Legislature found 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.”

But things have hit a snag this week. Gov. David Ige announced that he plans to veto this modest reform. Siding with law enforcement, Ige announced that civil forfeiture is an effective and critical law enforcement tool. He said he was “proud of our law enforcement” and announced that “we don’t see the kind of abuse that occurs in other states.” In 2018, however, an audit revealed that more than a quarter of seized property were closed without a criminal conviction.

The struggle isn’t over though. The governor could still change his mind and let the bill pass without his signature. And even if he does veto it, the Legislature could always try to override the veto and at least try to move out of the Middle Ages.

* Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is 808stateofaloha@gmail.com. “The State of Aloha” alternates Fridays with Sarah Ruppenthal’s “Neighbors.”