Hawaii SB 320: RELATING TO PROPERTY FORFEITURE.

Bill Text

THE SENATE
THIRTY-THIRD LEGISLATURE, 2025
STATE OF HAWAII S.B. NO. 3-2.0
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JAN 1 5 2025
A BILL FORAN ACT
RELATING TO PROPERTY FORFEITURE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that Hawaii's civil asset
forfeiture process allows law enforcement agencies to seize and
keep property based on suspicion that the property is connected
to criminal activity. Property, such as vehicles, houses, cash,
and jewelry, can be taken without the property owner having been
convicted of a crime or even being formally accused of one, and
the burden of proof to recover the seized property is shifted
from the State to the property owner.
The legislature also finds that there is a potential
incentive to improperly seize property for forfeiture, as state
and county law enforcement agencies are permitted to retain all
proceeds from the sale of the forfeited property. According to
the Institute for Justice, a nonprofit civil liberties law firm,
between 2001 and 2018, Hawaii generated at least $20,000,000 in
forfeiture revenue under state law and an additional $29,000,000
under the federal equitable sharing program where state or local
law enforcement agencies partner with federal agencies and share
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in the proceeds. The estimated value of property seized by
Hawaii law enforcement agencies was $1,050,463 in fiscal year
2018-2019; $963,055 in fiscal year 2019-2020; and $483,506 in
fiscal year 2020-2021.
The legislature further finds that the Institute for
Justice recommends abolishing civil forfeiture entirely, which
four states have already done: Maine, in 2021; Nebraska, in
2016; New Mexico, in 2015; and North Carolina, in 1985. In
those four states, a criminal conviction is required prior to
someone's assets being seized. The legislature takes note of
the Institute of Justice's "D-" (D minus) rating of Hawaii's
civil forfeiture laws and the characterization that the State's
laws "are among the nation's worst".
Furthermore, the legislature finds that the Institute for
Justice recommends other reforms to make the forfeiture process
more just, beginning with eliminating potential financial
incentives to seize and keep forfeited property and instead
changing the law to direct any proceeds to the general revenue
fund or other neutral fund. Currently, eight jurisdictions
prohibit law enforcement agencies from keeping the proceeds from
forfeited property, and eight prevent participation in the
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federal equitable sharing program. Another recommended reform
is to adopt a high standard of proof to establish a civil asset
forfeiture, such as "beyond a reasonable doubt". Eighteen
jurisdictions have a standard higher than Hawaii’s
"preponderance of the evidence" standard, and for ten of those
jurisdictions, it is equivalent to beyond a reasonable doubt.
The third recommended reform, which a number of jurisdictions
have already enacted, involves requiring law enforcement
agencies to prove that owners consented to or possessed
knowledge of the crime that led to the seizure of their
property, which would restore the presumption of innocence used
in criminal proceedings. The legislature finds that none of
these recommendations have been implemented in Hawaii.
Accordingly, the purpose of this Act is to make the State's
civil asset forfeiture process more just by:
(1) Limiting the transfer of certain forfeiture property
to federal agencies;
(2) Establishing records requirements;
(3) Restricting civil asset forfeiture to cases involving
the commission of a felony offense where the property
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owner has been convicted of an underlying felony
offense;
(4) Directing any forfeiture proceeds to the general fund;
(5) Amending the allowable expenses for moneys in the
criminal forfeiture fund;
(6) Requiring the attorney general to adopt rules
necessary to carry out the purposes of the Hawaii
omnibus criminal forfeiture act; and
(7) Amending the deadline for the attorney general to
report to the legislature on the use of the Hawaii
omnibus criminal forfeiture act.
SECTION 2. Chapter 712A, Hawaii Revised Statutes, is
amended by adding two new sections to be appropriately
designated and to read as follows:
"S7 12A- Equitable sharing program; restrictions.
Notwithstanding the provisions of section 712A-7, a seizing
agency or prosecuting attorney shall not enter into an agreement
to transfer or refer property seized under section 712A-6,
unless the seized property includes United States currency in
excess of $100,000, to a federal agency directly, indirectly,
through adoption, through an intergovernmental joint task force
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