Normally, hearing that the Maui Police Department recently purchased ice machines for its stations in Hana and Lanai wouldn’t inspire me to write a story. But when I heard that the department used asset forfeiture funds to buy the machines, I got to work.
Civil asset forfeiture is one of those grotesque things governments do that riles both left and libertarians–the left because it provides a cash incentive for the Drug War and mass incarceration practices that fall disproportionately on African-Americans and libertarians because it stomps on property rights–yet it’s continued with only minor reform since the federal government really got rolling on the Drug War in the 1980s. How it works is simple enough in principle: during criminal investigations, law enforcement can seize assets (cash, vehicles, etc.) and then split the loot with the state Attorney General’s office (which in Hawaii takes 50 percent) and the prosecutor’s office (which takes 25 percent).
“[C]riminals are deprived of their working capital and profits, thereby preventing them from operating even where traditional criminal sanctions have not otherwise deterred them,” states the Hawaii Attorney General’s Fiscal Year 2015-2016 Annual Report of Proceedings under the Hawaii Omnibus Criminal Forfeiture Act (the most recent one available). “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.”
“Used to fight crime.” As we’ll see, police departments have discovered that nearly anything can be used to fight crime.
See, asset forfeiture has turned local law enforcement into mercenaries. The Hawaii AG’s office is clearly sensitive about this, because their annual reports on asset forfeiture include this sentence: “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.”
If I had a nickel for all the caveats and qualifiers in that sentence, I could buy, well, an ice machine. In fact, I wasn’t surprised to see that in 2015, the Institute for Justice–a libertarian public interest law firm based in Arlington, Virginia–graded Hawaii a D- for its asset forfeiture policies.
“State law has a low standard of proof, requiring only that the government show by a preponderance of the evidence that property is tied to a crime,” states the IJ’s 2015 report Policing for Profit. “Furthermore, innocent owners bear the burden of proving that they had nothing to do with the alleged crime giving rise to the forfeiture. Most troubling, law enforcement has a large financial stake in forfeiture.”
Let’s start at the beginning. Though the AG’s office insists that asset forfeiture deprives “criminals” of the capital, it also often deprives innocent people of their property. This happens over and over, across the nation, as Michelle Alexander documented in her 2012 book The New Jim Crow.
“Neither the owner of the property nor anyone else need be charged with a crime, much less found guilty of one,” Alexander wrote. “Indeed, a person could be found innocent of any criminal conduct and the property could still be subject to forfeiture.”
Of course, anyone whose stuff is seized has the right to ask for judicial review of the seizure, but that’ll require an attorney.
“Because those who were targeted were typically poor or of moderate means, they often lacked the resources to hire an attorney or pay the considerable court costs,” Alexander wrote. “As a result, most people who had their cash or property seized did not challenge the government’s action, especially because the government could retaliate by filing criminal charges–baseless or not.”
Indeed, though the most recent asset forfeiture report from the AG’s office shows that while Hawaii’s law enforcement agencies seized more than $381,000 in cash and property in Fiscal Year 2015-2016, there were just six claims for judicial review. Of those, three were settled and three were still in litigation at the time the report came out.
What’s more, fighting to regain seized assets–even when you personally aren’t charged with a crime–is difficult for reasons beyond attorney costs. According to Alexander, the government only needs to show a “preponderance of evidence” that seized assets were used in crimes.
“Most people simply cannot afford the considerable cost of hiring an attorney,” Alexander wrote. “Even if the cost is not an issue, the incentives are all wrong. If the police seized your car worth $5,000, or took $500 cash from your home, would you be willing to pay an attorney more than your assets are worth to get them back?”
Though the AG’s annual asset forfeiture reports are pretty vague, they do show that the MPD seized not quite $91,000 in Fiscal Year 2015-2016–$84,000 in cash and $6,700 in vehicles. As for what they can do with that money, it’s pretty wide open–the AG’s insistence that it’s used “to fight crime” notwithstanding. Though there are limits, as MPD Chief Tivoli Faaumu told the Maui County Council Budget and Finance Committee on April 7, the department was still able to use the funds to buy a couple of (presumably) crime-fighting ice machines.
The revelation came during the middle of one of those long budget sessions, when department directors testify at great length about all the stuff they need in the coming fiscal year. It started when Committee Chair Riki Hokama suddenly asked Assistant Chief John Jakubczak whether the Lanai police station had a ice machine.
“That’s what we’re just purchasing with forfeiture funds at this point right now,” Jakubczak testified, according to the meeting minutes.
Hokama thanked him, then asked Faaumu for a rundown on how the MPD uses forfeiture funds.
“So what can I do with the Forfeiture Fund?” Faaumu asked rhetorically. “I know one thing that I can’t use it for is to supplant things that I’m responsible to purchase. I won’t be able to do that. I can use it for… to purchase something if we have an initiative. I’ll give you an example of what the Chair talk[s] about is the purchase of the ice machine for our Hana District and our Lanai District. We learned from the latest blackout and some of the inclement weather that our Hana District has encounter[ed], ice machine or ice is very important, especially during power outages. So the commander look[ed] at it and believe[d] that is in an initiative, something that our Department need[ed] to support the community. So we use the Forfeiture Fund for that.”
So that, boys and girls, is how the little Hana and Lanai police stations got their ice machines. Stay frosty!
Photo: Kinneck/Wikimedia Commons