Kauai’s county prosecutor is hoping to break the cycle for low-income people trapped in the criminal justice system with an innovative new policy.

Justin Kollar is changing the way his office charges certain traffic violations — driving without a license and driving without insurance — because he believes the current penalty guidelines unfairly punish low-income people.

The move aligns with growing efforts nationwide to reassess fines and fees that create additional burdens on low-income offenders.

State law for those violations call for harsher fines and jail time for repeat offenses. In memos he sent out to other prosecutors this month, Kollar said his office would be charging all of those violations as first-time offenses regardless of prior history.

The enhanced penalties have done nothing to make the roads safer, Kollar said in an interview. They have only added more people to the already crowded jail and traps the working poor in a “cycle they can’t get out of.”

Kauai Police Dept signage on police vehicle.
A new policy on how certain traffic violations are handled on Kauai aims to keep low-income offenders out of the county’s already crowded jail. Cory Lum/Civil Beat/2019

“They clearly disproportionately impact the economically disadvantaged,” he said.

Low-income people who get picked up on those charges can’t afford the fines, which further hinders their ability to get their license or insurance.

A National Trend

Kollar’s initiative echoes a growing trend nationwide.

Wanda Bertram, a spokeswoman for Prison Policy Initiative, a nonpartisan research organization, said an increasing number of counties across the country are reassessing how fees and fines are levied.

For instance, San Francisco County abolished many locally imposed criminal justice-related fees and fines in 2018, she said. The move came after a county task force found that the fees placed substantial financial burdens on those trying to reenter society.

“So (Kauai’s) new policy is certainly a step in the right direction,” Bertram said.

But other county prosecutors in Hawaii don’t plan to follow Kauai’s suit, citing concerns for traffic safety and compliance with state law.

“If we’re going to be putting people behind bars and spending a lot of money doing that, make sure it’s somebody who needs to be there.” — Kauai Prosecutor Justin Kollar

“Our position is to uphold and enforce the law,” said Brooks Baehr, a spokesman for the Honolulu acting prosecutor Dwight Nadamoto. “The statutes are pretty clear.”

However, the state attorney general’s office says county prosecutors have wide discretion, reinforcing Kollar’s stance. “Their policy decision is theirs to make,” the attorney general’s office said in a statement.

Prosecutors are some of the most powerful legal forces in the criminal justice system, said Mandy Fernandes, policy director at the American Civil Liberties Union of Hawaii.

Most people don’t realize that prosecutors have the power to enact reforms like this, she added.

“We’re encouraged that the Kauai prosecutor is doing this,” Fernandes said. “We can alleviate the burden on the poor without sacrificing public safety.”

‘A Vicious Cycle’

Stephanie Char, a public defender in Kauai, said she has seen a lot of people come through her office over the years for driving without a license or insurance.

If a person doesn’t have a license and gets picked up by police, they are assessed a fine, she said. Then there are court fees to pay and also a hold placed on their driver’s license until those fees are paid off.

“It just turns into a vicious, vicious cycle they just get stuck in,” she said. “And unfortunately, they make the decision to drive and fines just pile up.”

Kauai prosecutor Justin Kollar is trying a new legal policy to reduce the number of low-income offenders stuck in jail over the inability to pay traffic fines. Courtesy: Kauai Prosecutor

When charged as a first-time offense, driving without a license is a petty misdemeanor, meaning it’s punishable by 30 days in jail or a maximum of $1,000 in fines. When upgraded to a misdemeanor, the penalties would be one year in jail or $2,000 in fines.

As for driving without insurance, the first time is considered a violation, but a petty misdemeanor after that. Fines can range from $500 to $5,000.

Kollar said he was seeing many of the same people showing up in court on a weekly basis for these violations. The jail, built for 120 people, had more than 190 people last week.

“I see the same people cycling through the system over and over again,” he said. “A lot of them seem to be working poor who have so many outstanding fines and fees.”

From Jan. 1 to July 15, 411 driving without a license cases were filed in the Kauai circuit, state court data showed. For the same time period, there were 566 driving without insurance cases.

Kauai is a suburban island, Kollar said. “You need to drive to get around. There’s no way to survive around here without driving.”

The enhanced punishment guidelines in state law are not keeping people without licenses and insurance off the road, he said. They are only creating more barriers for them to get licenses and insurance.

“We’re hoping to see more people driving legally,” he said. “And if we’re going to be putting people behind bars and spending a lot of money doing that, make sure it’s somebody who needs to be there.”

Char, the Kauai public defender, said she believes Kollar’s new policy will help.

“It’s going to be a benefit to our clients in terms of the fines, in terms of the ability to get their license back or to get a license,” she said.

Others Have Concerns

Mitch Roth, the Hawaii County prosecutor, called Kauai’s new policy an “interesting idea.”

“My initial thoughts were, ‘I don’t know about that,’” he said. “There’s issues on traffic safety. You have to know your island.”

More people die from traffic incidents than gun violence, Roth said. Traffic fatalities are some of the biggest cases that prosecutors deal with, and there are other issues that arise when people get into a crash with serious damage but no insurance.

“Is this going to prevent the loss of life or is it going to make it easier for people to break the law and take more lives?” he said.

“Are we now picking and choosing what laws to enforce?”  — Maui Prosecutor Don Guzman

Monica Espitia, the Smart Justice Campaign director at the ACLU of Hawaii, says that argument is moot when you consider the fact that driving without a license or insurance is not the same as driving under the influence or recklessly hitting someone’s car.

“You just can’t afford to pay a fine,” she said. “That doesn’t make you more dangerous on the road.”

Roth said people in his county also have difficulty paying fines and face jail time. So he’s willing to have a discussion with his staff and police department.

“I think one of the big things we look at is how do you make your community safer and healthier,” he said. “A lot of that is determining if the current law is doing that.”

Maui Prosecutor Don Guzman had a different perspective. He said he understands Kollar’s intent to reduce the burden on the indigent population, but he was concerned that doing away with sentencing enhancements was circumventing the Legislature’s authority.

“When you open up that door, it becomes a slippery slope,” Guzman said. “Are we now picking and choosing what laws to enforce?”

If certain penalties need to be changed, that should happen at the Legislature, he said. Prosecutorial discretion, in his opinion, doesn’t stretch that far.

“Discretion, to me, is looking at each case individually and seeing whether or not there’s enough to move forward,” Guzman said. “Do we have enough evidence or is this case frivolous?”

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