In the wake of Hawaii’s biggest corruption scandal in history, lawmakers are proposing that county prosecutors be required to collect and publish data about criminal defendants and how they make their charging decisions.
House Bill 2749 was in large part prompted by the sweeping federal investigation that led to the convictions of Katherine Kealoha, a former Honolulu deputy prosector, and her husband Louis Kealoha, the former Honolulu police chief. The case has also entangled Honolulu Prosecuting Attorney Keith Kaneshiro, who has been on paid leave since March after receiving a target letter in the federal investigation.
“The intent of the bill is generally to bring more transparency to the process in prosecutor’s offices to make sure the public can have faith and confidence that the right people are being prosecuted,” said House Judiciary Committee Chair Chris Lee, sponsor of the legislation.
At the same time, it would protect prosecutors from “unfair misconceptions,” he said.
The bill states that prosecutors are the “most powerful actors in the criminal justice system.” Prosecutors are in charge of deciding whether to charge people and with what crimes, and their decisions have a “lasting impact on people accused of crime, victims, families, communities and Hawaii’s economy.”
If passed, the bill would require a prosecutor’s office to collect and publish data about a defendant’s race, gender, disability status, where they were arrested, whether diversion was offered, bail or bond information, pleas offered and substance abuse history screening, among other things.
It would also require a recently established criminal justice research institute to collect that data from all the prosecuting attorneys’ offices and publish that data online every year, as well as producing an annual report.
Additionally, the bill would require the governor to establish a prosecutorial transparency advisory board.
During the last few years as the case against the Kealohas and five HPD officers unfolded, there were a lot of questions raised about whether or not cases were being fairly handled in prosecutors’ offices, Lee said.
“In general, everybody supports more transparency and everyone stepped up to try to improve the process,” he said. “The question is how it’s done and logistically, what makes sense.”
A Burden For Prosecutors
Although the bill has gained widespread support from various civil rights and advocacy organizations across the state, prosecutors from all four counties voiced concerns about it.
While they all agreed that prosecutorial transparency serves the public interest, they each wrote in their comments to the committee that complying with the bill’s mandate would require additional staff.
None of the offices submitted opposition letters, but Maui County Prosecutor Don Guzman said he was in “strong opposition” to the bill.
“This bill creates an unfunded state mandate with an effective date of July 1, 2020 without any significant consultation with the affected agencies,” Guzman wrote in his letter to the House Judiciary Committee.
Those concerns were not ignored, Lee said.
Legislators got together with stakeholders and narrowed down the data points from more than 50 to 11.
The point, he said, was to make sure that the maximum amount of transparency is secured while minimizing the burden for the prosecutor’s offices that have to provide the data.
The bill was developed by a national policy expert as a way to increase transparency around prosecutorial decision-making nationwide, said Mandy Fernandes, policy director of the American Civil Liberties Union of Hawaii, which supports the bill. Similar laws have passed in Florida, Colorado and Arizona, according to a national ACLU report on prosecutorial transparency.
“As taxpayers, we should have the right to know what’s going on,” she said. “We should know the rationale behind their decision-making.”
Data collection could enable policymakers to start effectively targeting decades-old problems, such as the disproportionately high numbers of Native Hawaiian inmates in the prison system, she said. Right now, without the data, policymakers and advocates don’t really understand where the problem starts so they can’t effectively address the problem, she added.
“To make good policy first we need to start with information,” Fernandes said. “We can’t have information if the prosecutors are operating in secrecy.”
The bill passed through the Judiciary Committee last week by a 7-0 vote and has been referred to the House Finance Committee.
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