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Constitutional Mandate
Pursuant to Article VII, Section 10 of the Hawai‘i State Constitution, the
Office of the Auditor shall conduct post-audits of the transactions, accounts,
programs and performance of all departments, offices and agencies of the
State and its political subdivisions.
Hawai‘i Revised Statutes, Chapter 23, gives the Auditor broad powers to
examine all books, records, files, papers and documents, and financial
affairs of every agency. The Auditor also has the authority to summon
people to produce records and answer questions under oath.
Our Mission
To improve government through independent and objective analyses.
Our Work
We conduct performance audits (also called management or operations
audits), which examine the efficiency and effectiveness of government
programs or agencies, as well as financial audits, which attest to the
fairness of financial statements of the State and its agencies.
We report our findings and make recommendations to the Governor and the
Legislature to help them make informed decisions.
For more information on the Office of the Auditor, visit our website:
http://auditor.hawaii.gov
Auditor’s Summary
Audit of the Department of the Attorney General’s
Asset Forfeiture Program
Report No. 18-09
S
RULE
Rules are also needed to guide property owners who are seeking
remission or mitigation of the forfeiture of their property. It’s likely
that property held pending forfeiture may lose value; some property
may deteriorate or fall into disrepair; and some property may become
outdated or obsolete. For some owners, being deprived of their property
for any period of time may result in significant hardship. Without clear
rules guiding the process for requesting a pardon of the property, these
effects are prolonged and exacerbated.
Leslie H. Kondo
State Auditor
i
ii
Table of Contents
Introduction......................................................................................1
Background......................................................................................2
Audit Objectives.............................................................................5
Summary of Findings...................................................................6
iii
The program does not review or reconcile forfeiture
case data....................................................................................... 15
Conclusion..................................................................................... 16
Recommendations...................................................................... 17
List of Exhibits
Exhibit 1 Total Number and Dollar Amount of
Administrative and Judicial Forfeitures by
Type of Property for FY2006–FY2015....................4
List of Appendices
Appendix A How Asset Forfeiture Works in Hawai‘i................. 24
iv
PHOTO: OFFICE OF THE AUDITOR
Forfeiting Accountability:
Audit of the Department of
the Attorney General’s Asset
Forfeiture Program
Introduction
In Hawai‘i, during
I
N REPORT NO. 90-6, Management Audit of the Narcotics the 10-year period
Enforcement Division and the Investigation Division of the from FY2006–
Department of the Attorney General, released in 1990, we reported FY2015, property
that the department’s asset forfeiture program lacks rules, policies, valued at $12.7
and procedures for forfeiture, stating that “[t]he department should have million was seized
moved faster to draw up appropriate documents covering forfeiture and $11.6 million
investigation, prosecution, and management and disposition of seized in property was
and forfeited property.” We attributed the lack of program structure to forfeited to the
it being a low priority and receiving little direction from the department,
State.
and we recommended, among other things, “[t]he department should
make the development of forfeiture rules, policies, and procedures a
top priority. Needed rules should be completed. Policy and procedure
manuals dealing with forfeiture administration, investigation, and
prosecution should be prepared.”
Background
Asset forfeiture is a confiscation of a person’s property by government
without any corresponding payment or compensation. In some cases, the
property is contraband that is illegal to own; in other cases, the property
was allegedly used to commit a crime or was the “fruit of a crime.”
Federal and state laws allow both criminal and civil asset forfeitures.
6% 1%
Pending Other
26%
4% No Charge
Dismissed In Hawai‘i,
property was
forfeited without
a corresponding
criminal charge in
26 percent of the
asset forfeiture
cases closed
63% during FY2015.
Conviction
See Appendix A
for a detailed
description
of how asset
forfeiture works 85%
in Hawai‘i. Administrative
(No Action)
Exhibit 1
Total Number and Dollar Amount of Administrative
and Judicial Forfeitures by Type of Property
for FY2006–FY2015
Administrative
Forfeitures
ADMINISTRATIVE
FORFEITURES are limited
to vehicles; property other Currency Firearms Miscellaneous
than real property with an 1,196 4 Property
estimated value of less than forfeitures forfeitures 39
$100,000; or any vehicle $2,753,198 $1,250 forfeitures
or conveyance, regardless $368,792
of value. In contrast,
judicial forfeitures include
property valued at more
than $100,000, and real
property, animals, and certain
negotiable instruments.
Multiple Real Property Vehicles
413 12 597
forfeitures forfeitures forfeitures
$4,745,579 $1,267,224 $2,449,654
Exhibit 2
Total Number and Dollar Amount of Administrative and
Judicial Forfeitures by Type of Crime for FY2006–FY2015
777
Audit Objectives
Public concerns that the State may be abusing its asset forfeiture powers
spurred the adoption of House Concurrent Resolution No. 4 of the 2016
Legislative Session (HCR No. 4). The audit objectives are described
below.
Our audit was performed from June 2016 through January 2017, and
was conducted in accordance with generally accepted government
auditing standards. Those standards require that we plan and
perform the audit to obtain sufficient, appropriate evidence to
provide a reasonable basis for our findings and conclusions based on
our audit objectives. We believe the evidence we obtained provides
a reasonable basis for our findings and conclusions based on our
audit objectives.
Summary of Findings
1. After nearly 30 years, administrative rules describing the
procedures and practice requirements for asset forfeiture
have not been adopted by the department. Without them,
the program provides informal, piecemeal guidance to law
enforcement agencies and the public.
2. The asset forfeiture program lacks policies and procedures,
and has a program manager who did not guide and oversee
day-to-day activities and financial management.
1
In addition to our audit objectives, HCR No. 4 requested that we provide an
assessment of the socioeconomic status of individuals whose assets have been
forfeited. However, we found that neither the Attorney General nor the prosecutors
record or otherwise maintain such information. For that reason, we are unable to
provide the requested analysis.
However, we found that these rules have been languishing with the
Attorney General and have yet to be adopted as of March 2018. When
What’s in a Rule? asked about the delay in implementing rules, the then-first deputy
UNDER HAWAI‘I LAW,
attorney general conceded that the rules “fell through the cracks.”
the term “rule” is defined
to mean “each agency According to the department, it issued informal guidelines to law
statement of general or enforcement in 2014; however, during our fieldwork in 2016, we found
particular applicability and
that one of the four county prosecutors’ offices could not locate those
future effect that implements,
interprets, or prescribes law guidelines.
or policy, or describes the
organization, procedure, A result of the lack of consistent, formal rules is the program’s high
or practice requirements rates of petitions for administrative forfeiture have been dismissed
of any agency. The term
does not include regulations
because prosecutors are unclear as to the department’s requirements
concerning only the internal for administrative forfeiture. For instance, from FY2013–FY2015, the
management of an agency department dismissed 107 petitions for administrative forfeiture — 14
and not affecting private percent of the total filed — for reasons such as lack of probable cause;
rights of or procedures
failure to establish a nexus between the seized property and a covered
available to the public,
nor does the term include offense; insufficient notice to property owners of forfeiture procedures;
declaratory rulings issued and technical errors in documents. We found dismissal rates were
pursuant to section 91-8, nor significantly higher on the neighbor islands compared to O‘ahu, as
intra-agency memoranda.” shown in Exhibit 3 below. While just 3 percent of the petitions filed
— Section 91-1, HRS by the City and County of Honolulu were dismissed by the Attorney
General from FY2013–FY2015, 26 percent of petitions from Hawai‘i
Exhibit 3
Number of Petitions Processed and Dismissed by County for
FY2013–FY2015
Kaua‘i County
16 dismissed Hawai‘i County
85 processed City & 57 dismissed
19% dismissal rate County of 222 processed
Honolulu 26% dismissal rate
8 dismissed Maui County
319 processed
26 dismissed
3% dismissal rate 150 processed
17% dismissal rate
Exhibit 4
Ratio of Petitions for Remission or Mitigation to
“Extenuating” Total Forfeiture Cases Processed in FY2012–FY2015
or “mitigating” 400
circumstances 372
• Developed schedules for publishing The program cannot fully account for the property it
notices of intent for forfeiture for has obtained by forfeiture.
each county;
• Issued informal guidance to county Once a forfeiture order is issued, the property being forfeited
prosecutors about the information becomes the State’s property. However, the majority of forfeited
that the department expects to be
included in petitions; and property is stored by the police, and the department does not take
possession of the property until shortly before it is auctioned on
• Temporarily increased the amount of
time allocated to the program by a O‘ahu. We found that the department does not maintain a complete
deputy attorney general from 15 to inventory of forfeited property. The program manager told us that he
50 percent of the deputy’s work. only maintains a list of the property that is stored in the department’s
warehouse and is scheduled to be auctioned. He questioned the
As a result of these changes, the
department reduced the backlog
necessity of documenting forfeited property that the department
of pending forfeiture petitions from did not physically possess. He also does not consistently document
approximately 345 in July 2014 to instances in which police destroy property forfeited to the State.
44 as of June 30, 2015. We believe
that many of the improvements to
Without a record of the property destroyed by the police, the
the program, such as improving
communication with prosecutors program is unable to fully account for State property. The
and reducing the backlog of program’s legal assistant is responsible for updating its FileMaker
petitions, should be attributed to the database to reflect sold items after an auction is completed;
supervising deputy attorney general’s however, the legal assistant only keeps track of items that have
efforts. However, notwithstanding
his commitment to the program,
been auctioned. As a result, the disposition of forfeited property
we found that the department has that has not been auctioned, whether destroyed or kept for use
not developed formal management by law enforcement, is unknown. Such property in question is
policies and procedures to memorialize classified as “pending sale” in the program’s database. At the end
the processes program staff must
of FY2015, the amount of property classified as such, which the
follow to more effectively and efficiently
administer the program. department cannot fully account for, totaled $1.56 million.
Exhibit 5
Criminal Forfeiture Fund Revenues, Expenditures, and
Fund Balance for FY2011–FY2017
$1,200,000
Total Revenues Year of division transfer
Total Expenditures
$1,000,000 Ending Fund Balance
Minimum Reserve Balance
$800,000
$600,000
$400,000
$200,000
$0
FY2011 FY2012 FY2013 FY2014 FY2015 FY2016 FY2017
files and found that eight were recorded inaccurately. Errors included
incorrect or missing dates in various fields, an incorrectly reported
seizing agency, and erroneous police report numbers.
The supervising deputy attorney general told us that the program has
struggled to track refiled cases. The program’s ProLaw database issues
a unique number to each petition entered into the system, including
petitions refiled for previously dismissed forfeiture cases. He said the
database cannot create customized case numbers, which would enable
staff to more easily identify and account for dismissals. The program’s
lack of a systematic process to identify dismissed cases increases the
risk that the department may double-count cases and overstate reported
seized property values.
Conclusion
Hawai‘i’s asset forfeiture program is controversial, attracting criticism
from lawmakers, the public, and the media. The statute gives the
Attorney General broad power to take personal property from
individuals without judicial oversight based on a relatively low standard
of proof. Given the high profile of the program and the power bestowed
on the Attorney General to administer it, it is crucial that the department
manage the program with the highest degree of transparency and
accountability. We found that is not the case. The department has failed
to adopt administrative rules as required by statute, establish formal
Recommendations
The Department of the Attorney General should:
W
E PROVIDED A DRAFT OF THIS REPORT to the Department
of the Attorney General on May 31, 2018, and met with the
Attorney General, First Deputy Attorney General and the
Supervising Deputy Attorney General of the Civil Recoveries
Division on June 8, 2018, to discuss our findings and recommendations.
The department offered its written response to the draft report on
June 12, 2018, which is included as Attachment 1.
APPENDIX A
How Asset Forfeiture Works in Hawai‘i
APPENDIX B
Follow-Up on Recommendations from
Report No. 95-22, Sunset Evaluation of
Definition of the Forfeiture Program
Terms
WE DEEM recommendations: This appendix presents the results of our review of three recommendations
made to the Legislature in Report No. 95-22, Sunset Evaluation of the
Implemented
Forfeiture Program, which was published in October 1995.
where the department or
agency provided sufficient
and appropriate evidence
Status of Recommendations
to support all elements of Our follow-up efforts were limited to reviewing and reporting on the
the recommendation; implementation of the sunset evaluation recommendations. We did not
explore new issues or revisit old ones that do not relate to the original
Partially Implemented
recommendations.
where some evidence
was provided but not
all elements of the Sunset Evaluation Recommendations by Status
recommendation were
addressed;
2 1
Not Implemented
where evidence did
not support meaningful
Implemented Not
movement towards Implemented –
implementation, and/or N/A
where no evidence was Source: Office of the Auditor
provided;
Implemented
Comments
Act 104, SLH 1996, also added a new section titled, “Excessive
Forfeitures,” requiring the courts to limit the scope of a forfeiture to the
extent that they find the effect of the forfeiture grossly disproportionate
to the nature and severity of the crime.
Recommendation 3
The Legislature should consider amending Chapter 712A,
the Hawai‘i Omnibus Criminal Forfeiture Act, by repealing the
Criminal Forfeiture Fund so that some forfeiture proceeds
can be deposited into the State general fund for legislative
appropriation.
Comments
The Criminal Forfeiture Fund remains in place.
The Legislature passed Act 130, SLH 2013, which revised the criteria
for the establishment and continuance of special and revolving funds.
Prior to Act 130, the law required a clear nexus between the benefits
sought and charges made upon the users or beneficiaries of the program.
Act 130 expanded this criterion to include a clear link between the
program and sources of revenue.
Our most recent review of the fund in Report No. 14-13, Report of
Special Funds, Revolving Funds, Trust Funds and Trust Accounts of
the Departments of the Attorney General and Business, Economic
Development and Tourism, applied the new criterion above, finding that
the Criminal Forfeiture Fund continued to serve the purpose for which it
was created and met the criteria for a revolving fund.