In the 2016 legislative session, no bills may be more ambitious and wide-ranging than House Bill 2561 and Senate Bill 2964, a pair of companion bills that seek to revamp Hawaii’s penal code.

The identical bills, 135 pages long, would eliminate some mandatory sentences to give judges more discretion in drug cases, raise the threshold level for some felonies, and create a new felony category, among other changes.

The bills were introduced last month based on a set of recommendations from the Penal Code Review Committee, a task force made up of 29 stakeholders — judges, prosecutors, defense attorneys, law enforcement officials and other community representatives.

The task force had been charged to take on a once-a-decade exercise: comb through more than 750 pages of criminal statutes that regulate everything from jaywalking to homicide in Hawaii and come up with any necessary revisions.

After a six-month review, the task force issued a sprawling set of recommendations — 84 in all — aimed at ensuring that the “grades of offenses and punishment are fair and proportionate to the crime committed.”

Ultimately, the task force’s recommendations were incorporated into the bills in their entirety — but not everyone’s happy about it.

More than 80 recommendations by the penal code review committee are aimed at revamping nearly 800 pages of Hawaii's criminal statutes.
More than 80 recommendations by the Penal Code Review Committee are aimed at revamping nearly 800 pages of Hawaii’s criminal statutes. Cory Lum/Civil Beat

At a Friday hearing on HB 2561, members of the House Judiciary Committee got an earful from prosecutors and law enforcement officials, who criticized some provisions in the bill they said they had opposed from the get-go.

The criticisms were particularly vehement on two provisions: one that would take away mandatory sentencing for most methamphetamine-related offenses and another that would raise the monetary threshold for felony theft charges.

State Rep. Karl Rhoads, who voted in favor of the provisions as a task force member, took the criticism in stride, noting that the bill is so extensive that hardly anyone could find it beyond reproach in every respect.

“There are 72 sections in this bill, so there’s something for everybody to love and everybody to hate. I don’t like everything in the bill, either,” said Rhoads, who chairs the Judiciary Committee.

Steven Alm, a circuit court judge who oversaw the review process, told Civil Beat that he’s confident about the bill’s chances, given that it has the backing of all seven judges on the task force.

“It’s significant that what’s being proposed here had the support of the judges, including four former prosecutors — like me,” Alm said.

‘This Great Cross-Section Of People’

In recent years, many states, including New York and Texas, have cut back the number of people they incarcerate by reducing mandatory sentencing and lowering penalties for some low-level drug offenses, among other changes.

But that wasn’t necessarily a stated goal of Hawaii’s task force when it convened in June following the passage of House Concurrent Resolution 155.

Alm says the task force had no overarching agenda for the review process, other than to streamline the penal code.

“This wasn’t done with a particular goal in mind,” Alm said. “We just had this great cross-section of people, representing victims’ rights, representing the prosecutors, representing the defense … so it was just about exploring, ‘Are we being smart on crime?'”

Judge Steven Alm led the once-in-a-decade effort to update the Hawaii penal code, a process that took six months last year.
Circuit Court Judge Steven Alm led the once-in-a-decade effort to update the Hawaii penal code, a process that took six months last year. Cory Lum/Civil Beat

Indeed, many of the recommendations focus on technical fixes in the statutes, such as simplifying the definition of “alcohol” as applied to drunk-driving cases or speeding up the forensic examinations of defendants by clarifying that they could be performed by any psychologist, not just those from the Hawaii Department of Health.

But Jack Tonaki, the state public defender, says the task force’s recommendations include some provisions that are modeled after the old-fashioned, tough-on-crime approaches.

Tonaki is particularly unhappy with one provision that would enhance the offense of “resisting an order to stop a motor vehicle” by making it trigger a felony charge in some cases. He worries that overzealous policing could escalate many traffic stops and make them fall under this provision.

“Look, until such time as the officers are all outfitted with body cams, I don’t think we should be doing this,” Tonaki said.

Still, Tonaki hopes that the Legislature will embrace the task force’s recommendations. “There are things in it that we are not particularly happy about, but I would hope to see this whole thing passed in its entirely,” he said.

But HB 2561 and SB 2964 would have to go through substantial changes if every concern of their critics had to be addressed.

At the Judiciary Committee hearing, a number of prosecutors and law enforcement officials attacked the idea of raising the felony theft threshold.

Under the task force’s proposed change, a felony charge could be brought only when an offense involves stolen goods or services assessed at $750 or more, not the current level of $300.

The proposed change is identical to the one prescribed by Senate Bill 569, a measure that passed the Legislature last year but was vetoed by Gov. David Ige.

The task force concluded that the proposed change was necessary, given that the threshold hasn’t been adjusted since 1986, when the Legislature set it at $300, and now ranks as the fifth-lowest in the country.

To ward off “professional property criminals,” the task force coupled the proposed change with another provision that would stiffen the penalties against habitual offenders.

“This wasn’t done with a particular goal in mind. … It was just about exploring, ‘Are we being smart on crime?'” — Judge Steven Alm

But Hawaii Attorney General Doug Chin told committee members that the proposed change is simply too “drastic.”

Rhoads interjected: “You are not conceding the point that, every year, with the inflation, the threshold amount shrinks? If you don’t correct it for 30 years, it’s less than what it was.”

Chin said he acknowledged Rhoads’ point but insisted that “for now, in 2016, the right amount would be $300.”

“Rather than simply accepting the current recommendation that’s here in this bill, there is an opportunity in the legislative process to try to find perhaps a middle ground between $300 and $750, where there might be more buy-in from the stakeholders,” Chin said.

Another provision that drew opposition involved proposed changes in methamphetamine statutes to give judges more discretion in sentencing, instead of imposing mandatory minimum sentences.

The proposed changes would essentially treat methamphetamine-related offenses the same way as those involving other drugs, such as cocaine and heroin.

Kauai Prosecuting Attorney Justin Kollar says that, given its outsized impact on the communities in Hawaii, methamphetamine should be handled differently.

“Methamphetamine remains a significant problem in our community, and no compelling reason exists to delete the currently applicable sentencing requirements,” Kollar said in his written testimony.

Honolulu Prosecuting Attorney Keith Kaneshiro says he opposes the underlying intent of the proposed changes.

“The bottom line is, they want to reduce the amount of people going to prison, period. And they want to reduce the cost for incarceration. That’s the intent, regardless of whether it’s going to impact public safety,” Kaneshiro said. “That’s my objection to it. We see, too many times, people on probation or parole committing violent offenses.”

But Alm says the proposed changes are “in no way denigrating how serious the meth problem is.”

“The question is, are these statutes helping deal with that problem? By recommending a couple of changes, we’re saying they are not,” Alm said. “If you send somebody to prison for 10 years for a meth problem, they are going to come out in several years, after costing the taxpayers $46,000 a year in Hawaii, and go right back to using again, because drug treatment doesn’t work as well inside the prisons as it does on the outside.”

Honolulu Prosecuting Attorney Keith Kaneshiro says the opinions of prosecutors like him were brushed aside by the penal code review committee.
Honolulu Prosecuting Attorney Keith Kaneshiro says the opinions of prosecutors like him were brushed aside by the Penal Code Review Committee. Nathan Eagle/Civil Beat

Prosecutors Object To Being Outvoted

Kaneshiro says the disagreement over the details of the task force’s recommendations ultimately stemmed from the process of arriving at each provision.

To Kaneshiro, the process was essentially rigged: While most recommendations received unanimous votes, contested provisions were adopted simply by a majority vote — an unfair arrangement, he says, for prosecutors and law enforcement officials, who filled only eight out of 29 seats on the task force.

“The process is, they select people, and it’s slanted against the prosecutors,” Kaneshiro said. “They don’t really care about what the prosecutors or people in the law enforcement have to say.”

Chin says only those recommendations that received unanimous votes should be incorporated into the bills; the rest could be introduced as individual bills, so they could be properly vetted.

“If they were to simply focus on the parts of the bill that people have a consensus on, I think everyone will be completely behind it,” Chin said.

Kaneshiro concurred. “That’s the proper way to do it, instead of putting all in one bill and chucking it through,” he said. “But I know what the legislators would say: ‘We don’t want to jeopardize good things in this bill by not passing it because of the objections to some of the provisions.’ So they can use that to pass all these objectionable provisions. That’s why we say we support the bill if you make all these amendments.”

But Rhoads says requiring unanimity would just lead to gridlock.

“If you had to get everybody to agree on things as controversial as the stuff we were looking at, you’d never get to do anything,” Rhoads said.

On Friday, the Judiciary Committee passed HB 2561 on a 9-to-2 vote, with Republican Reps. Cynthia Thielen and Bob McDermott voting against it.

For his part, Alm says he can understand where some prosecutors are coming from — he spent 16 years of his career as a prosecutor himself. The changes in methamphetamine statutes, he says, are “an example of something that, when I was a prosecutor, I probably would have voted against.”

Still, Alm is optimistic that the bills can make it through the Legislature. After all, he says, all recommendations from the 2005 review process eventually became law — except for one provision that would have raised the offense level for bribing public officials from Class C to Class B.

“This time, a couple of issues are a little more contentious,” Alm said, “but I think we still have a good chance of getting this past the Legislature.”

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