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Editor’s Note: More research into the assertions surrounding marijuana arrests and their impact on the court system turned up more of the same — legalization supporters say decriminalization would save taxpayers millions of dollars, opponents say that’s not the case. We’ve graded this Fact Check as unverifiable and updated the piece with the latest information.
Meanwhile, the House killed the measure, saying the votes just weren’t there to get it passed. But it supporters are vowing to bring the issue up again next year.
A bill calling for decriminalization of possession of 20 grams or less of marijuana is pending this week before the House Judiciary Committee.
Senate Bill 472 calls for a civil violation with a fine of up to $100.
If approved, Hawaii would take a major step toward electoral actions in Colorado and Washington state last year that saw decriminalization of marijuana for recreational use, though possession remains a federal crime.
Supporters of the bill, including the ACLU of Hawaii, say passage of SB 472 would free up the state’s criminal justice system by reducing “unreasonable arrests” for marijuana possession.
But law enforcement agencies, including the Office of the Attorney General, says there is “no signiﬁcant backlog of cases in the courts.” It strongly opposes SB 472.
Who’s correct? Civil Beat is in the process of fact-checking the claims made by each side in recent testimony before the Legislature.
First, let’s see how the bill is doing.
SB 472 moved through the Senate after the penalty for possession was increased from $100 to $1,000. It passed House Judiciary on March 14 with only one representative, Republican Bob McDermott, voting “no.”
The House has proposed amending SB 472 to reduce the amount of pot possession from an ounce (28 grams) or less to 20 grams or less, changing the fine back to $100 and making clear that the civil violation would apply to persons 18 years or older.
Judiciary Chairman Karl Rhoads said his committee wanted to make clear the distinction between how the law would apply to adults versus juveniles.
Under the proposed House draft, which faces a Thursday deadline in order to be voted on by the full House Friday, possession of 20 grams or less of marijuana by a person under 18 would still constitute a petty misdemeanor. If sentenced, juveniles could also lose their driver’s license.
If SB 472 passes second reading Friday and a third and final reading next Tuesday, the Senate could choose to accept the House’s amendments to the bill or deal with it in conference committee later this month.
Marijuana decriminalization has long been a controversial issue in the islands, and SB 472 has attracted a lot of testimony and a lot of detailed arguments in support and in opposition.
Opponents argue that decriminalization would send the wrong message to Hawaii youth, that marijuana is harmful and even addictive, that teens are now using pot more because they don’t think it’s harmful, that pot is a gateway to harder drugs, that workers would get stoned on the job if pot were legal and that criminal and black market drug activity would not decline.
Supporters argue that decriminalization is a growing national trend, that cops would be freed to focus on more serious crimes, that pot is not a gateway drug, that it should not be placed in the same category as heroin and LSD, that alcohol and tobacco are legal yet far more harmful than pot and that people arrested for pot busts carry that stigma with them for life.
There is little middle ground between the two camps. Same goes for arguments over “freeing up” the criminal justice system. Here’s what they say in the written testimony.
David Louie, Hawaii Attorney General: “In support of the decriminalization provisions, it has been suggested that the decriminalization of marijuana would assist the Judiciary in reducing a backlog of cases involving the offense of promoting detrimental drugs in the third degree, in violation of section 712-1249, Hawaii Revised Statutes (HRS). But the attached statewide statistics from the Hawaii Criminal Justice Data Center shows that there is no signiﬁcant backlog of cases in the courts. Most of the cases initiated during a calendar year are being disposed in the calendar year. Those that remain pending at the end of year probably do so because they were initiated late in the year or were continued by the court. …”
Richard Minatoya, Maui Deputy Prosecuting Attorney: “We believe that the claim by proponents of this bill that this measure will ‘clear up the courts’ is unfounded. Contrary to claims by proponents, there are very few cases in which Promoting a Detrimental Drug in the Third Degree is the sole charge. In a large majority of the cases in district court, the charge of Promoting a Detrimental Drug in the Third Degree is in addition to other charges. We feel that this bill will have no impact on the congestion in the courts. …”
Keith Kaneshiro, Honolulu Prosecuting Attorney: “While there has been mention that marijuana cases currently ‘clog’ our criminal justice system, such that ‘decriminalizing’ the possession of certain amounts of marijuana would ease the burden, our records do not reﬂect any such clogging. In 2012, the Department charged 221 stand-alone counts of HRS §7l2-1249, which is essentially possession of less than l ounce marijuana. Similarly, there were 241 charges in 2011, 216 charges in 2010, and 240 charges in 2009. These ﬁgures are considerably lower than some other petty misdemeanor charges, and based on the experience of our deputies, it is extremely rare for these HRS §7l2-1249 cases to receive any jail-time, aside from the possible holding-time while a defendant awaits hearing. …”
Darryl Perry, Kauai Police Chief: “In recent studies by Smart Approaches to Marijuana (SAM) the following facts were validated: 1. Less than 0.7% of all state inmates were behind bars for marijuana possession. 2. 99.8% of Federal prisoners sentenced for drug offenses were incarcerated for drug trafficking. 3. Under legalization, more people, not fewer, will be ensnared in the criminal justice system. A fact most people do not know is that alcohol — not cocaine, heroin or marijuana — is responsible for 2.6 million arrests every year. That is 1 million more arrests than for all illegal drugs combined. …”
Jerry Inouye, Honolulu Police Department Narcotics/Vice Division: “Petty misdemeanor arrests for possession of an ounce or less of marijuana made up only two percent of all Honolulu Police Department arrests in 2012. Therefore, it is unlikely that there will be any signiﬁcant savings for law enforcement or the Judiciary. Statistics from the State Department of the Attorney General show that in 2012, of the 594 persons arrested for possession of an ounce or less or marijuana, only seven spent more than 10 days in jail. This demonstrates that petty misdemeanor marijuana charges are not creating a backlog in the criminal justice system. …”
Timothy Ho, Chief Deputy Public Defender, State of Hawaii: “People charged with the marijuana possession are most often young males without a prior criminal record. The decriminalization of marijuana possession will remove these individuals from the criminal justice system, avoid having them labeled as criminals, and allow law enforcement to focus their limited resources on more serious offenses. …”
Laurie A. Temple, Staff Attomey and Legislative Program Director, ACLU of Hawaii: “Eliminating criminal penalties for low level marijuana possession will prevent thousands of people from becoming entangled needlessly in the criminal justice system, eliminate many collateral consequences that ﬂow from marijuana arrests (often more dangerous than the use of marijuana itself) and allow Hawaii to reinvest the money it saves for important community needs. … The decriminalization of small amounts of marijuana will reduce the number of unreasonable arrests for marijuana possession in our already bloated criminal justice system. … Removing criminal penalties for marijuana possession will keep people out of jail for probation and parole violations … thereby reducing the gross number of people entering or otherwise harmed by the criminal justice system. …”
Kat Brady, Coordinator, Community Alliance on Prisons: “Our correctional facilities are bursting with low-level drug offenders. A recent economic report by an economist stated: Decriminalization is an approach that treats marijuana possession in small amounts as a civil infraction (incurring a fine like a parking violation), rather than as a crime resulting in possible incarceration. Recent years have seen a surge in marijuana arrests. Since 2004, possession arrests have increased almost 50%. … In Hawaii, $24,600 a day is spent enforcing marijuana laws; that is $9 million a year in law enforcement time that local voters prefer be used to address violent crime. There were 50% more marijuana arrests in 2011 than in 2004. Arrest rates are surging mostly for people of color despite similar use rates for all ethnic groups. …”
Andrea Tischler, Chairwoman, Big Island Americans for Safe Access: “The advantages of cannabis decriminalization are many. Our police could be used more efficiently by having local enforcement focus on serious and violent crimes. It will unclog our courts and improve operation and efficiency with fewer back logs and cost savings. And, in these difficult economic times we will save the taxpayers millions by treating cannabis as a civil offense.”
In the course of this Fact Check, SB 472 was killed by the state House. Rep. Karl Rhoads said the measure did not have the votes to move forward.
But marijuana decriminalization and legalization is sure to return to the Hawaii Legislature, perhaps as soon as the 2014 session.
So, Civil Beat called most of the parties quoted above to learn more about pot cases clogging courts. In brief, here’s what we heard:
Laurie Temple of the ACLU and Kat Brady of the prison alliance referred us to Pamela Lichty, president and co-founder of the Drug Policy Forum of Hawaii. Lichty said groups like hers believe there are too many arrests for marijuana each year and so “too many human and financial resources are being spent by law enforcement.”
Like Temple and Brady, Lichty points to a January 2013 study by David C. Nixon, an associate professor of Public Policy and Public Administration at the University of Hawaii.
Nixon reports that Hawaii’s arrests for pot possession have increased 50 percent since 2004 while distribution arrests have nearly doubled. Decriminalization and legalization, he says, would save the state more than $10 million annually.
“We are not asserting that the main reason for decriminalizating marijuana is to deal with the clogging of the courts,” said Lichty. “What we are saying is that having low-level marijuana offenses dealt with as criminal matters is costing the state millions of dollars a year and entangling people into the criminal justice system with future and multiple negative consequences.”
Tim Ho, the state’s chief deputy public defender, echoed Lichty’s position on wasting resources. The problem, said Ho, is that some of the evidence for that is anecdotal.
Having been a public defender since 1987, however, Ho has a lot of anecdotal evidence. He gave the example of suspects pulled over for speeding or arrested at a parking lot outside a concert. The cops then discover marijuana on the suspect, and so the suspect is charged with that as well as other offenses.
But the context of such cases are not broken down in arrest statistics, said Ho.
“A majority of these poeple are young males between 18 and 25 years of age, most have no criminal records, so whatever monies are wasted on eradication and prosecution may not show up in the (judicial system) numbers, because they say they don’t have that many (marijuana arrests),” he said.
Another thing not reflected in police stats, said Ho: How arrest rates have been impacted by people switching from pot to harder drugs like crystal methamphetamine.
Now for the other side.
Jerry Inouye at HPD’s Narcotics Division did not return our call. But Dave Koga, a spokesman for the Honolulu prosecutor, said the view that courts are not clogged by marijuana arrests is supported by internal office records.
Meanwhile, Richard Minatoya, the Maui deputy prosecuting attorney, and Darryl Perry, the Kauai police chief, reiterated their views that courts are not clogged by pot cases. Both got their information from the AG’s office.
There was anecdotal evidence, too.
“In my experience on the Garden Island, I really don’t see that our system is clogged up by those misdemeanors,” said Perry.
In its testimony opposing SB 472, the AG listed arrest numbers from 1995 through 2012 for promoting detrimental drugs in the third degree. They have roughly doubled, from 310 to 594.
Lance Goto, deputy attorney general, said the arrests are not broken down by substance.
“But by and large, especially in district court when we talk about petty misdemeanors, it’s marijuana,” he said. “It’s rare to have anything else.”
The stats submitted as testimony did not break down pot arrests coupled with other offenses.
“That would have to be done as a separate report,” said Goto.
How about how the number of drug arrests compare with total arrests in a year?
Goto directed us to the state’s 2011 review of uniform crime reports — specifically, page 105.
In 2011, according to the report, there were 801 arrests for possessing marijuana and 130 for manufacturing or selling it. Total arrests for adults that year exceeded 40,000, about 6,400 of them for DUIs.
(Of note: On page 106 of the report, juvenile arrests for 2011 are detailed. Of the 7,500 offenses that year, more than 500 were for possessing pot.)
Lastly, Karl Rhoads,the House Judiciary chairman, said there is “no question” that Hawaii courts are backlogged. “In fact, I think they are overwhelmed. But as far as I can tell from testimony, if law enforcement is accurate, drug crimes are only about 2 percent of crimes.”
If pot were decriminalized, he said, it would help free up courts “but it’s not huge.” What was a more persuasive figure to Rhoads was the potential costs to the state through decriminalization — “which would be nice.”
So, who’s right? It’s difficult to say.
The law enforcement statistics show that hundreds of people are arrested for drug possession every year, but there are conflicting reports on what kind of substance is involved.
It’s also not clear how many marijuana arrests are coupled with multiple offenses, and how that impacts these cases as they move through the criminal justice system.
Both supporters and opponents of SB 472 cite anecdotal evidence to bolster their arguments. Supporters also have a UH study on Hawaii and marijuana arrests, but its focus is more on the cost rather than the courts.
Civil Beat checked with the Council of State Governments Justice Center, but we were told that there are no clear data to indicate one way or another.
Fifteen states now make simple possession or marijuana a non-felony offense, according to the National Organization for the Reform of Marijuana Laws, and every year other states introduce and debate similar legislation or bills that call for legalization. Data collected in Washington and Colorado — the only two states where recreational use s legal — may soon shed light on arrest rates and court congestion in those states.
Allen St. Pierre, the executive director for NORML, said law enforcement officials in those states tell him they quickly embraced decriminalization after they saw how it freed up their time to focus on more serious offenses.
“These cops and prosecutors in Hawai, whether they now it or not, are totally swimming against the tide,” said St. Pierre.
BOTTOM LINE: Despite our attempts, we were not able to verify the truth of the claim. Therefore, this Fact Check is UNVERIFIABLE.