KEALAKEKUA — The first audit in decades is coming for a state program that allows law enforcement to seize property without a conviction — and the administrator over the process is ready for whatever they may discover, while activist groups question its fairness.
KEALAKEKUA — The first audit in decades is coming for a state program that allows law enforcement to seize property without a conviction — and the administrator over the process is ready for whatever they may discover, while activist groups question its fairness.
“The Attorney General is adamant about it being run above board,” said Deputy Attorney General Mike Vincent, supervisor of the civil recovery unit.
His department is in charge of the process of civil forfeiture, where law enforcement can take property they allege as being used in or as the result of a criminal enterprise, without meeting the criminal standard of beyond a reasonable doubt.
The method makes it possible for law enforcement to take homes, vehicles and money from people without a conviction.
For Sara Ann Steiner and Robert Petricci, it was not a theoretical event. Both were arrested in 2007 on charges of growing marijuana on their property.
“They took everything so we couldn’t afford a lawyer,” Petricci said.
Steiner believes one of the reasons they were targeted was that their land was owned free and clear. To her, that made it a more lucrative target for law enforcement.
Without funding, Petricci said they struggled in court against what he called an illegal search. Steiner entered a deferred acceptance of a guilty plea. Petricci pleaded no contest to first-degree promotion of a detrimental drug. Both received five years of probation.
Despite the fact a deferral removes the event from someone’s record, Steiner was surprised to find the state was moving to take the land.
Petricci views the whole thing as double jeopardy, as they were punished by jail and probation, then had their Hawaii Island property taken. He sees that in the fact the land is sued, not the person.
“I had to pay for it, the land didn’t pay for it,” he said.
Ultimately they had to buy their land back, Steiner said, undoing years of work.
“It took us three years to pay the $75,000 ransom for our farm,” wrote Petricci in an an email. It took that long to make money because they had no equipment on the farm after the seizure.
Policy critics
The process has been criticized several times, and this is the second time Sen. Will Espero sought to have an audit of the decades-old program.
It passed this year, although several bills to change parts of the program died in committee.
“Unlike criminal forfeiture, which takes property from convicted criminals, under civil forfeiture, property owners do not have to be convicted of a crime, or even charged with one, to permanently lose their cash, cars, businesses or even their homes,” according to the Institute for Justice, a nonprofit libertarian public interest group.
It involves a lot of paperwork, said Vincent, but they are making sure everything is done properly.
He said they reject a fair amount of property that agencies attempt to bring in, as it is stolen property that should be returned or otherwise ineligible.
All forms of forfeiture netted $1.4 million last fiscal year, according to their annual report. The AG’s office does not separate the various types of forfeitures in its annual report.
The money flow creates a major problem for Dick Carpenter of the IIJ, and Hawaii’s method of distribution is particularly troubling to him.
The money is divided three ways — 25 percent to the agency, 25 percent to the prosecuting agency that filed the petition and 50 percent to the Attorney General’s Office.
This troubles activists for many reasons, the largest of which is the idea of “policing for profit,” where law enforcement makes choices based on what will bring the biggest return in forfeiture, rather than what is best for the community.
Where that money goes is another sticking point. In Hawaii, it enters a forfeiture fund that is administered by a three-person staff at the Attorney General’s Office.
And the drive goes beyond money, the AG’s office wrote in that report.
“As a result, criminals are deprived of their working capital and profits, thereby preventing them from operating even where traditional criminal sanctions have not otherwise deterred them. 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,” the 2016 report from the Attorney General’s Office reads. “While the purpose of forfeiture and the evaluation of a forfeiture law or program should never be based solely on the generation of revenue, it is fitting that forfeited property be used to combat those who seek to profit from crime.”
Putting property to use
At times the goods are not sold and are instead used by law enforcement. One common item is vehicles, which are often used for undercover operations, said Vincent.
The two main expenditures from the fund are training and new equipment, said Vincent, with a focus on developments that can be used across multiple agencies.
He mentioned a recent training event at the Honolulu Airport’s interisland terminal from 10 p.m. to 4 a.m., when there were no flights.
The Honolulu Police, private security and Transportation Security Administration practiced various scenarios in the building, with members of the military acting as the public.
They also use the money to train attorneys, such as programs covering new developments in the law, changes in criminal behavior and other matters, Vincent said.
Training is certainly necessary, said the IJ’s Carpenter, but the forfeiture system crosses the separation of powers.
“Forfeiture enables law enforcement to circumvent the appropriations process,” he said.
Instead of agencies having to present their needs and desires to the elected legislature, they can simply fund it themselves, he said.
The result is a potential shadow land of unsupervised decisions by law enforcement, he said.
Vincent is aware of the “horror stories” on the mainland, where property has been unjustly seized. But those problems haven’t occurred here, he said, largely because of how insistent the attorney generals are on proper action.
Hawaii’s grade
That reliance on the attorney general didn’t sit well with the IJ, which awarded the state a D-. Hawaii avoided an “F” from the Institute for Justice by one factor — how easy it is for the state to claim goods.
In Hawaii, the prosecutors have to reach the standard of preponderance of the evidence, rather than the lower standard of probate cause.
“In all other respects, it’s the lowest possible,” said Carpenter.
To an extent, the standards don’t matter. A survey of the number of claims made a year shows that 90 percent or more are are never challenged.
Past Attorney General Margery Bronster asked why that would be during the development of the program.
“Is it because you don’t want to admit that offenders know they committed the conduct alleged and that the property is subject to forfeiture?” he asked.
The attorney general’s office has long argued the law does not allow the attorney general to “act as judge, jury and executioner,” as someone only has to take the case to court or file a petition for remission or mitigation.
The reality of the very few challenges is not the result of the people admitting guilt, Carpenter said. Instead, he sees the cost of reclaiming the property often surpasses its value, in time and in money. And if someone does attempt to reclaim it they are on a difficult, and specific, search, he said.
“You can’t just hire any attorney, you have to hire an attorney who specializes in civil forfeiture,” he said, because of the complexities of the field.
One concern from the days of the formation of the fund was the fact the money entering the fund was not strongly linked to the money being spent.
“We find that the fund does not clearly link benefits and charges and it escapes the normal process of legislative appropriations,” a 1995 audit said.
Some places elsewhere advocated dissolving the special fund and putting the money into the general fund for transparency and oversight. Other states have made that decision, including Missouri and Maine.
If that were done in Hawaii, the decision would remain as to what to spend the money on, said Vincent. Some states, such as Missouri, direct that the money be spent on education.
The seized property business is contracted with Rosen Auctions. The April 9 auction included items like 17 cars and motorcycles, jewelry, monitors and security cameras, a number of outdated federal reserve notes and rolling tool boxes with tools.
Some of the seizures speak for themselves, like the lot of 900 poker chips and 233 packs of playing cards.
The last auction earned a preliminary total of $33,708.81, according to the Attorney General’s Office. After the company takes its percentage, the remainder is parceled out by the seizing agency.
“It just seems like there’s a lot of motivation to go out and take things,” Petricci said.