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Hawaii was an outlier.
For decades, people accused of stealing goods or services worth more than $300 in the state faced an automatic felony charge, subject to up to five years in prison.
Civil Beat is examining how the state manages its troubled, overcrowded prison system, which includes four prisons and four jails in Hawaii, and a contract private prison in Arizona. This is the first in a series of articles examining what happened to the Justice Reinvestment Initiative, an effort to reform the state’s criminal justice system.
In all but a handful of states, people had to steal considerably more to face such serious consequences.
But, earlier this year, the Legislature adopted a bill that, among other things, raised the so-called felony theft threshold to $750.
The move was aimed at diverting low-level, nonviolent offenders from the state’s overcrowded prisons, an idea first proposed as part of the Justice Reinvestment Initiative — an ambitious program adopted by Hawaii and dozens of other states to overhaul the criminal justice system.
On the face of it, the bill’s passage represented a hard-fought victory for the JRI’s proponents, who pushed for years to raise the felony threshold — which had gone unchanged since 1986.
But here’s the fine print: Bowing to fierce opposition from prosecutors and law enforcement officials, state lawmakers also made another change in the penal code, subjecting “habitual” theft offenders to mandatory minimum sentences.
The net effect, critics say, is that the two changes will cancel each other out, dashing hopes for any dramatic reduction in the state’s inmate population.
In many ways, the episode underscores the challenge facing JRI’s implementation in Hawaii: When it comes to some of the program’s bold ideas, the state has been reluctant to fully embrace them.
The result: JRI hasn’t lived up to its potential since its launch four years ago.
According to the Council of State Governments Justice Center, which provided technical assistance, JRI was projected to help reduce the state’s inmate population by more than 900 by the end of fiscal year 2016 — and eventually lead to a reduction of 1,010 inmates by fiscal year 2018.
But, at the end of October, the state still housed more than 5,800 inmates, only about 250 fewer than when JRI was adopted.
In June 2012, when then-Gov. Neil Abercrombie signed into law two bills that became the basis for JRI, more than 6,000 inmates were behind bars, a third of them at for-profit prisons on the mainland.
Abercrombie, a former probation officer, hailed JRI as a game-changer of sorts — a much-needed shot in the arm, he said, to reduce the state’s inmate population, with the ultimate goal of bringing all prisoners back to Hawaii.
But JRI was much more than about prisons; it was a fundamental rethinking of Hawaii’s criminal justice system — a shift away from the get-tough, lock-’em-up approach of the yesteryear to one that promotes rehabilitation and reduces recidivism.
To achieve such shift, the state first created the “Justice Reinvestment Working Group,” a special committee made up of representatives from three branches of government, to come up with policy solutions that would form the backbone of JRI.
With the help of the Council of State Governments Justice Center, the working group went on to spend more than seven months analyzing the data from every facet of the state’s criminal justice system and emerged with a set of 10 recommendations.
One area of the recommendations focused on alternatives to incarceration — proposing, for instance, that second-time, nonviolent drug offenders be eligible for probation.
Another recommendation proposed to establish “re-entry intake service centers” within the Hawaii Department of Public Safety, tasking them to conduct pretrial assessments within three days of inmates’ booking.
The idea was to speed up the release of pretrial inmates, either on bail or under other conditions.
The working group also proposed to expand the size of the parole board from three to five members, with the idea that they’d increase the capacity to release more prisoners on parole.
“Now might be a good time to analyze where the JRI’s shortcomings are.” — State Sen. Will Espero
According to the Council of State Governments Justice Center, the recommendations — if adopted in full — were projected to lead to a savings of more than $150 million by the end of fiscal year 2018 and allow the state to reinvest $42 into the system.
In the end, though, the lawmakers stripped three of the recommendations from the bills before sending them to Abercrombie’s desk.
One of the rejected recommendations was the raising of the felony threshold — which had met strong opposition from prosecutors and law enforcement officials.
Also rejected was a recommendation that all prisoners be granted parole for a “minimum period” — instead of allowing them to serve maximum terms and releasing them without any supervision.
The idea was to reduce the recidivism rate among “maxed out” prisoners, but the lawmakers ultimately decided that it was too risky to release those who weren’t interested in parole.
The lawmakers also rejected a recommendation to make it possible to post bail 24 hours a day and expand methods of payment — an idea that would have helped reduce the length of jail stay for pretrial inmates.
Kat Brady, coordinator of the Community Alliance on Prisons, says the state passed up the golden opportunity to make a lasting, positive change to the state’s criminal justice system.
“We were really, really disappointed,” Brady said. “The bills were really strong, and they could have saved us lots and lots of money.”
For JRI’s proponents, another disappointment has been that even some of the recommendations adopted by the Legislature aren’t making much impact.
In fiscal year 2015, for instance, it still took an average of 32 days for pretrial inmates to be released on bail and 84 days on supervised release — virtually unchanged since fiscal year 2011.
That’s despite the fact that the Department of Public Safety has been conducting pretrial assessments within three days, as mandated under JRI.
Meanwhile, the funding boost has allowed the Hawaii Paroling Authority to bring on two additional parole board members and four full-time parole officers.
Still, the agency has been granting parole to considerably fewer prisoners during the past two years.
Carrie Ann Shirota, a prison-reform advocate on Maui, chalks it up to the lack of ongoing evaluations to assess JRI’s progress.
Such evaluations, Shirota says, are needed “to continue doing what works and improve upon areas that have proven less effective in reducing the overall incarcerated population.”
Bree Derrick, program director of state initiatives at the Council of State Governments Justice Center, points out that other states that have successfully adopted JRI are “looking for solutions on an active and continuing basis.”
“Many states are seeing the reform efforts as happening multiple times over many years and using the data to inform that process repeatedly,” Derrick said. “That’s where we see as the ultimate success is.”
But Hawaii has no mechanism in place to do any follow-up evaluations — the working group disbanded a long ago, and the state no longer receives technical assistance from the Council of State Governments Justice Center.
State Sen. Will Espero, vice chair of the Senate Public Safety Committee, says he’s intent on changing that.
“Now might be the good time to analyze where JRI’s shortcomings are,” Espero said. “That’ll tell us what we need to do next, whether it’s a bill or resolution. Or it could be tweaks in the way how we run some programs.”
Judith Greene, executive director of Justice Strategies, a New York-based think tank on criminal justice issues, points out a broader issue with JRI: Across the country, the program is driven by what she calls a “technocratic, top-down process” — without a groundswell of grassroots support.
Greene says California, New Jersey and New York managed to make significant cuts in their inmate population — but they did so without adopting JRI. The main ingredient for success was that there was “a vigorous public engagement” around the issue of mass incarceration.
“The biggest takeaway is that most significant changes, if the states want to improve the criminal justice system, come when citizens and residents of the states are motivated,” Greene said.
“The bottom line is that, when you say you’re not going to change the sentencing laws for violent or repeat offenders, you’re stuck. You’re not going anywhere.” — James Austin, JFA Institute
Jack Tonaki, the state public defender in Hawaii, says that’s where the Aloha State might fall short.
“We’re liberal on many issues but, with respect to crime, we are probably on a conservative side,” Tonaki said. “That’s because, as an island state, we have very little violence here, relatively speaking. People are proud of that and they don’t want to see that changed to where violent crimes get to be like in other states.”
Shirota says the state’s elected officials, in turn, tend to be still “afraid on appearing ‘soft on crime’ in the eyes of the public.”
“Many politicians … assume that voters believe in a retributive model of justice,” Shirota said. “But I firmly believe that leaders are misreading the pulse of our community when it comes to criminal justice policies.”
James Austin, president of the JFA Institute, a nonprofit consulting firm on criminal justice issues, says that, if Hawaii were to take anything out of JRI, the lawmakers have to be willing to take some politically risky moves.
“The bottom line is that, when you say you’re not going to change the sentencing laws for violent or repeat offenders, you’re stuck. You’re not going anywhere,” Austin said.
Still, Greene says it’s a matter of time before Hawaii catches up to the rest of the country, where “criminal justice reform and policy accountability loom large,” as she puts it.
“I’m feeling pretty optimistic that we’ve turned the corner, and it doesn’t look like we’re going to go back,” Greene said. “It’s been a long time since most politicians still called for old, lock-’em-up approach that hasn’t worked.”