THE SENATE

S.B. NO.

788

TWENTY-NINTH LEGISLATURE, 2017

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to forfeiture.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The legislature finds that forfeiture is used to protect the public from harmful products and the property of criminal enterprise.  As a result, criminals are deprived of their working capital and their profits.  A secondary benefit of forfeiture laws is that forfeited property, or the proceeds of its sale, is turned over to law enforcement and used to fight crime.

     In 2010, the Institute for Justice published a report titled, Policing for Profit:  The Abuse of Civil Asset Forfeiture.  This report examined the use and abuse of civil asset forfeiture and graded the civil forfeiture laws of all fifty states and the federal government.  The report found that under most state and federal laws, law enforcement keeps some or all proceeds from civil forfeitures, which may encourage policing for profit when law enforcement agencies pursue forfeitures to boost their budgets at the expense of other law enforcement priorities.  Furthermore, the report criticized the lower standard of proof the government is required to use in civil forfeiture proceedings to establish that the forfeited property is connected to the alleged criminal activity and criticized the burden that is placed on the forfeited property owner to prove that the forfeited property was used illegally without the owner's knowledge or consent.  Lastly, the report found that there was limited oversight and accountability of money raised and spent through civil forfeiture actions.  Hawaii received a D grade.

     Chapter 712A, Hawaii Revised Statutes, provides for forfeiture of property used or acquired in connection with the commission of certain criminal offenses and for the distribution of property, or its proceeds, to law enforcement agencies for law enforcement purposes.  The department of the attorney general distributes administratively or judicially forfeited property, and the sale proceeds thereof, to law enforcement agencies.  The department of the attorney general processes petitions for administrative forfeiture of personal property valued at less than $100,000 or of any vehicle or conveyance regardless of value, but not real property.  In a case initiated as an administrative forfeiture proceeding, a person may petition for remission or mitigation upon showing that the person is the owner of the property, had no knowledge that the property was or would be involved in any violation of the law, had no knowledge of the particular violation that subjected the property to seizure and forfeiture, and had no knowledge that the user of the property had any record for the violation that subjected the property to seizure and forfeiture.  A prosecuting attorney commences judicial forfeiture proceedings concerning real property or personal property valued at $100,000 or more by filing a petition for forfeiture in the circuit court.

     The legislature further finds that House Concurrent Resolution No. 4, which was adopted during the Regular Session of 2016, requests the auditor to conduct a management audit of the asset forfeiture program of the department of the attorney general to, among other tasks, evaluate the efficiency and effectiveness of the asset forfeiture program, determine whether the program uses moneys for the purposes intended pursuant to chapter 712A, Hawaii Revised Statutes, and provide a comprehensive accounting of money and property seized and disposed of through asset forfeitures.  Auditor Report No.     reports the auditor's findings and recommendations pursuant to House Concurrent Resolution No. 4, Regular Session of 2016.

     The purpose of this Act is to establish a working group to review and discuss Hawaii's forfeiture laws and make recommendations to improve these laws to ensure that forfeiture is used for its intended purposes rather than to create an incentive for law enforcement agencies to generate revenue through forfeiture.

     SECTION 2.  (a)  The department of the attorney general shall establish a working group to review and discuss Hawaii's forfeiture laws and make recommendations to improve these laws.  The working group shall include the following members:

     (1)  The attorney general or the attorney general's designee;

     (2)  The chief justice or the chief justice's designee;

     (3)  One representative of the prosecuting attorney from each of the four counties;

     (4)  One representative of the police chief from each of the four counties;

     (5)  The chairperson of the Hawaii access to justice commission or the chairperson's designee;

     (6)  The president of the Hawaii State Bar Association or the president's designee;

     (7)  One representative of the American Civil Liberties Union;

     (8)  One representative of the Drug Policy Forum of Hawaii; and

     (9)  One representative of the office of the public defender.

     (b)  The working group shall examine and evaluate Hawaii's forfeiture laws by:

     (1)  Determining the effectiveness and efficiency of such laws by examining:

         (A)  The total amount and type of property seized by law enforcement agencies;

         (B)  The total number of administrative and judicial actions filed by prosecuting attorneys and the disposition of these actions;

         (C)  The total number of claims or petitions for remission or mitigation filed in administrative actions and the disposition of these actions;

         (D)  The total amount and type of property forfeited and the sale proceeds thereof; and

         (E)  The total amount and type of property distributed to units of state and local government;

     (2)  Examining the different forfeiture laws of other jurisdictions to determine whether these statutory schemes may serve as a model for Hawaii's forfeiture laws;

     (3)  Identifying any possible areas for abuse or concern regarding Hawaii's forfeiture laws, including any impediments that innocent owners of forfeited property face when petitioning for remission or mitigation;

     (4)  Examining and considering the findings and recommendations under Auditor Report No.     relating to the management audit of the asset forfeiture program of the department of the attorney general pursuant to House Concurrent Resolution No. 4, Regular Session of 2016; and

     (5)  Developing solutions to address problem areas or impediments and to streamline the forfeiture process.

     (c)  The working group shall submit a written report of its findings and recommendations, including any proposed legislation, to the legislature no later than twenty days prior to the convening of the regular session of 2018.

     (d)  The working group shall cease to exist on June 30, 2018.

     SECTION 3.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

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Report Title:

Forfeiture; Working Group; Department of the Attorney General

 

Description:

Requires the department of the attorney general to establish a working group to review and discuss Hawaii's asset forfeiture laws and make recommendations to improve these laws.

 

 

 

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