What a difference a year makes.

A bill that decriminalizes the possession or sale of drug paraphernalia — downgrading the offenses from a felony to a civil violation — is sailing through the Legislature, despite fierce opposition from state and county prosecutors.

Just a year ago, virtually the same measure died without so much as getting a single hearing.

But, on Tuesday, Senate lawmakers gave their stamp of approval on House Bill 1501 — five weeks after House counterparts did the same — setting the stage for a rollback of the harshest penalties in the country for violating paraphernalia laws.

Rep Joy San Buenaventura Vice Chair Legislature1
State Rep. Joy San Buenaventura introduced House Bill 1809 to decriminalize the possession or sale of drug paraphernalia. The bill passed both chambers Tuesday and likely heads to a House-Senate conference committee. Cory Lum/Civil Beat

In the coming days, the bill’s fate will be determined by a House-Senate conference committee, which will work to reconcile two versions of the measure — the original with a $100 civil fine for violating paraphernalia laws and the current one calling for a fine of up to $500.

In theory, the committee can also move to overhaul the bill or kill it altogether, especially given that Gov. David Ige indicated in January that he’s opposed to it.

But San Buenaventura says she’ll do everything she can to ward off any attempt to gut the bill.

“Usually, it only happens with the support of the introducer (of the bill), and I’m not going to agree to something that would completely change it,” San Buenaventura said.

The Harshest In The Country

San Buenaventura says a key reason why the bill has received the Legislature’s backing this year is that medical marijuana dispensaries will soon be up and running.

Operators of the dispensaries “are concerned about the chilling effect on their customers, as well as their employees,” San Buenaventura said.

The Legislature also took note of the fact that Hawaii imposes the harshest penalties in the country for violating paraphernalia laws: punishable by up to five years in prison and $10,000 in fines..

According to NORML, a pro-marijuana advocacy group based in Washington, D.C., the possession of drug paraphernalia is either a misdemeanor or civil violation in most other states; Arizona is the only other state that treats the offense as a felony, imposing a penalty of up to two years in prison.

In the bill, San Buenaventura cites Civil Beat’s 2015 article to point out that such harsh penalties come at a “substantial” cost: The state spends more than $20 million a year to lock up 167 prisoners whose “lead crime” was sale or ownership of paraphernalia.

In his written testimony, Nolan Espinda, director the Hawaii Department of Public Safety, notes that the number of prisoners is now down to 150, but another 109 inmates are in jail awaiting trial for paraphernalia offenses.

San Buenaventura argues that the bill will help relieve overcrowding at the state’s prisons and jails — an issue that’s at a critical point after the American Civil Liberties Union of Hawaii called for a federal probe in January.

“We in the Legislature should do what we can to ensure that we reduce the population while still maintaining the safety of the community,” San Buenaventura said.

‘Talking Out Of Both Sides Of Their Mouth’

But prosecutors say decriminalizing paraphernalia offenses will make little difference, given that those who are charged with them almost always have an accompanying drug possession charge.

According to Honolulu Prosecuting Attorney Keith Kaneshiro, all but one of the 209 inmates who are behind bars for paraphernalia offenses were also charged with drug possession.

“Because … many offenders also have more extensive criminal charges or history involved, implementation of this bill would have little or no effect on lowering the prison population,” Kaneshiro wrote in his testimony.

Richard Minatoya, deputy prosecutor at the Maui Department of the Prosecuting Attorney, also argues that the bill will result in fewer offenders going to drug treatment by taking away the incentive.

Paraphernalia laws are “not merely a tool for punishing an offender,” Minatoya wrote in his testimony. “It also serves as a means of getting an offender the necessary services to help that person lead a clean and drug-free life.”

“It sends the right signal in terms of where we as a state are headed when it comes to dealing with drug policies.” — Carl Bergquist, executive director of the Drug Policy Forum of Hawaii

But San Buenaventura counters that prosecutors are “really talking out of both sides of their mouth.”

“If they are saying that there is already an underlying charge, then they could use the underlying charge to divert them into treatment. They don’t need this added drug paraphernalia charge,” San Buenaventura said.

Carl Bergquist, executive director of the Drug Policy Forum of Hawaii, told Civil Beat that it makes little sense to putting people through the criminal justice system in hopes of getting them into treatment.

“The better option is to change the system from the front end and, instead of arresting them in the first place, get them into treatment,” Bergquist said.

Bergquist says passing the bill will move toward that goal.

“It sends the right signal in terms of where we as a state are headed when it comes to dealing with drug policies — to move away from criminalizing and a little toward humanization and treatment,” Bergquist said.

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