������Ƶ

This may sound strange, but we still prosecute property as well as people. The rationale is even weirder and dates back centuries.

Suppose you were living in ninth-century Britain when something terrible happened. You were on your way to market to sell something when a brigand came out of the bushes, demanded your goods and then stabbed you with a dagger.

If he was caught, the highway robber would be prosecuted (or worse) and so would his dagger. In fact, the Crown would confiscate it.

If there was no robber and you died when your cart accidentally toppled over, the Crown could confiscate the evil objects causing the mishap. The cart, the horse and the goods don’t go to your family but become a deodand — a “thing given to God” — and the Crown, which conveniently declared itself the next best thing to God, benefits.

The supernatural rationale upholding the deodand still haunts us. Prosecuting and confiscating evil objects has managed to survive the Enlightenment and the scientific revolution, and has evolved into civil asset forfeitures.

The concept really took off during Richard Nixon and Ronald Reagan’s “War on Drugs.” Prosecutors and law enforcement ramped up efforts to confiscate property associated with the drug trade.

The forfeiture gig proved lucrative.

Houses, vehicles, cash and bank accounts were up for grabs. And the government benefited so much that by 1984, the U.S. attorney general declared it was “now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation.”

In 1988, the Hawaii Attorney General’s Office and the four county prosecutors and police chiefs pushed through the Legislature the forfeiture laws modeled after the federal government and Arizona.

These are the laws still .

The police can seize property “without court process” whenever officers believe the property is associated . They even can confiscate property if they believe it is “directly or indirectly dangerous to health or safety.”

All it takes is probable cause for the officer to believe there’s a crime. No charges, no trial, no proof beyond a reasonable doubt and no criminal conviction required. The property owner isn’t even a party in the case. The defendant is the property that may as well be an evil object from the ninth century. It’s how we get wonderfully bizarre and perfectly pidgin-sounding lawsuits titled or the amusing .

It is very difficult for property owners to challenge the seizure of their property.

Sure, the forfeiture laws allow owners to stake a claim and challenge the confiscation, but you need to pay. While other jurisdictions — including the feds — have done away with this provision, Hawaii property owners who aren’t indigent are required to post a bond of 10% of the estimated value of the property or $2,500, “” That means when the state takes $500 in cash, you have to post a bond of $2,500 to challenge the forfeiture.

Of course, you don’t have to post the bond if you are indigent. But because it’s not a criminal case and you’re not the defendant, you are not entitled to a lawyer. Unless you have one working for free, you’re on your own. Good luck.

That may be why so few seizures are contested. The state seizes the property and sells it to the public at an . It’s a lurid and sad affair, as bidders look at confiscated property such as sunglasses, cars, boats and gold chains. The proceeds are then split up among the law enforcement agencies themselves. County prosecutors, the Attorney General’s Office and law enforcement agencies all get a cut.

Just how much they make is duly reported . In the fiscal year for 2021-2022, the profits were down to $291,043 The report also stated $175,179 was spent from the criminal forfeiture fund that year.

Compared to massive government budgets, these numbers are small. So why do they do it?

Perhaps U.S. Supreme Court Justice Neal Gorsuch explains it best. Last week, to criticize law enforcement practices.

“Some agencies,” he wrote, “reportedly place special emphasis on seizing low-value items and relatively small amounts of cash, hopeful their actions won’t be contested because the cost of litigating to retrieve the property may cost more than the value of the property itself.”

He goes on to suggest that “a Nation so jealous of its liberties” allows these aggressive forfeiture practices because of “the relative lack of power of those on whom the system preys.”

The closest we came to changing things in Hawaii was in 2019, when the Legislature that sought to change some of the most egregious parts of the law. Among other things, it would have removed the government’s financial incentive to seize property by banning the agreement to split the proceeds, required more proof than probable cause and limited forfeitures to felony offenses that actually resulted in a conviction.

The reason for the bill was simple. The Legislature found that the state was acting in “.”

Former Gov. David Ige vetoed it and said he was proud of law enforcement’s efforts to reduce crime, which made little sense since no crime is required to seize property. If you want to compare our deep blue, liberal state to others, adopted laws similar to the one Ige vetoed.

This year with a new governor, the senators introduced a . But this wasn’t the year and of the Ways and Means Committee. The forfeitures resume and, to borrow Justice Gorsuch’s words, the system continues to prey upon the weak.