BY RONALD FRASER – Instead of relying on state laws to protect property owners, Hawaii law enforcement officers are using state and federal statutes to stack the law against them. Police officers can seize your car, your cash or your boat if they merely suspect the property was involved in a crime — and they don’t even have to prove it. In most cases, to get your property back you must prove the property is innocent. Un-American? You bet, but it wasn’t always this way.
According to a new Institute for Justice report titled, Policing for Profit: The Abuse of Civil Asset Forfeiture, “Modern civil forfeiture exploded during the 1980s as governments at all levels stepped up the war on drugs, and Congress and the states created new incentives for the use of civil asset forfeiture –one of the worst abuses of property rights in our nation today.”
Here is how Hawaii police officers have become private property bounty hunters.
In 1984 amendments to the Comprehensive Drug Abuse and Prevention Act created a fund in Washington into which property seized by state and local law enforcement agencies is transferred. Federal forfeiture actions are then initiated against these assets and, when they are forfeited, up to 80% of the bounty is returned to Hawaii police departments based on a so-called “equitable sharing” formula.
By transferring assets to the federal fund, law enforcement agencies are able to circumvent more stringent state and local forfeiture procedural laws and laws in many states that specifically limit or prohibit the use of seized assets to buy squad cars, and other police equipment. Thanks to this “sharing” deal, a national survey showed that 40% of state and local police agencies consider civil forfeiture proceeds a necessary part of their budgets.
Unlike criminal asset forfeiture, which follows the owner’s conviction based on evidence beyond a reasonable doubt, civil forfeitures don’t require that the asset’s owner be convicted or even charged with a crime. If, based on a mere preponderance of evidence — a much lower standard of proof — a vehicle or cash or a boat was involved in an unlawful activity, the law says the asset itself committed the crime and is thereby liable for seizure. Your property is guilty until you prove it innocent.
According to the Institute’s report, “Hawaii’s civil forfeiture laws are in need of serious reform. The state may forfeit your property by showing by a preponderance of the evidence that the property was used in a crime. If you are an innocent owner and believe your property was wrongly seized, you bear the burden of proof.” And because Hawaii law does not control how much of the forfeiture proceeds enforcement agencies can keep, this “creates a strong incentive to seize property.”
From 2000 to 2008, Hawaii’s equitable share of forfeited assets from Washington totaled more than $17 million and is on the rise — from $1.2 million in 2000 to $1.6 million in 2008.
Nationally, federal and state deposits into the federal forfeiture fund have grown from $406 million in 2001 to $1.2 billion in 2008. While police departments in all 50 states take advantage of this federal loophole, only eight states — Indiana, Maine, Maryland, Missouri, North Carolina, North Dakota, Ohio and Vermont — have state laws prohibiting police departments from using seized assets. In all other cases, state laws actually encourage the conflict of interest created when police departments profit from their property seizures. Why is this bad news?
First, police traditionally seized private assets to break-up illegal drug supply lines. This original goal has been largely replaced by self-serving budgetary considerations. Also, as a department’s use of this independent source of funding grows, its dependence on, and accountability to, state and local taxpayers goes down.
What to do? To better protect private property rights the Institute recommends: that the federal equitable sharing loophole be closed; a higher standard of proof in civil forfeiture cases before governments can seize private property; and that law enforcement agencies be required to publicly account for all assets received from civil forfeitures.
Until these reforms are made, Hawaii citizens will continue to wonder why their police forces conduct drug raids. Are they to rid the town of drugs — or are the raids being used primarily to fatten police department budgets?
The End
Ronald Fraser, Ph.D., writes on public policy issues for the DKT Liberty Project, a Washington-based civil liberties organization. Write him at: fraserr@erols.com
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