As the Honolulu Prosecuting Attorney’s office recovers from the damage of the Kealoha scandal, voters have a choice among radically different visions for the department’s future.
Whoever wins will take over an office to which only three men have been elected since 1981.
“There really is a chance in this race to change an office that has been static for almost 40 years,” said Colin Moore, director of the University of Hawaii’s Public Policy Center.
Jacquie Esser wants to redefine the role of the prosecutor.
The public defender is promising major structural reforms and has the backing of Vermont Sen. Bernie Sanders and progressive mainland prosecutors in San Francisco and Philadelphia. Her vision for “reimagining justice” includes reducing incarceration, eliminating cash bail, refusing to prosecute drug possession and lobbying the Legislature for progressive criminal justice reforms.
She wants to direct low-level offenders to social services instead of prison and refocus energy on violent and white-collar criminals.
“I’m going to use my power and discretion as a prosecutor to start treating these root causes of crime,” she said.
Megan Kau, a prominent criminal defense attorney, believes in the current criminal justice system and is pitching a strict by-the-book approach. If a drug is illegal, she says she’s bound to prosecute its possession, even if she disagrees with the law. Kau says a prosecutor lobbying for policy changes is tantamount to “corruption.”
A survivor of homelessness and domestic violence, Kau says she has a unique understanding of defendants and crime victims that gives her an edge over her opponents.
“To deal with a criminal, you have to know how criminals think,” she said.
Kau argues she is best positioned to root out corruption in the office because she’s already doing it. Kau represented a police officer who claimed he was targeted by former prosecutor and convicted felon Katherine Kealoha, and she says she assisted the federal investigation into the office.
Steve Alm says he is a combination of progressive and practical.
The former city prosecutor, U.S. Attorney and Circuit Court judge says he has both the reformist vision the office needs and the experience necessary to make it a reality. He shares Esser’s desire to reduce incarceration but sees the answer in probation, not referrals to social services.
“We can use the leverage of the criminal justice system to help them succeed,” he said. “They will not go to treatment on their own.”
Acting Prosecuting Attorney Dwight Nadamoto is running to keep his job permanently. A career prosecutor, Nadamoto is the hand-picked stand-in for elected Prosecutor Keith Kaneshiro.
Kaneshiro has been on paid leave for well over a year as the feds investigate his potential involvement in the criminal scandal that plagued his office. Nadamoto was subpoenaed in the case last fall but says he did nothing wrong and is cooperating with the feds.
He is campaigning on a “tough on crime” platform that advocates for harsher penalties for criminals, especially drug offenders. He is also pushing for a new prison.
That message doesn’t seem to be resonating though. An American Civil Liberties poll released this week found a majority of respondents on Oahu want a prosecutor who will address drug addiction with a public health approach, not aggressive prosecution and harsher prison sentences.
A total of 16 people have donated to Nadamoto’s campaign, two of whom are his siblings. Nadamoto spent only $1,163 between late April and the end of June – a crucial campaigning period.
In this race, the current officeholder is at a severe disadvantage, Moore said.
“I think the perception is he represents the status quo and a perception that he’s tied to Kaneshiro,” he said. “There is a clear demand from voters for someone on the outside to come in.”
A Civil Beat/Hawaii News Now poll in May showed that most voters were undecided, but Alm ranked far above his competitors with 21% support. He was followed by Kau, Nadamoto and Esser, respectively. Attorneys RJ Brown and Tae Kim polled at 1%.
Alm has also dominated with campaign contributions. The former judge has raised $219,819 for the election period with the backing of the police union and many prominent and powerful members of the legal profession. Kau and Esser followed him in fundraising, respectively.
Practically speaking, voters have four distinct choices, UH’s Moore said.
“They can choose a progressive, the acting prosecutor who represents the status quo, an outside figure who is viewed as an extreme independent or the respected judge,” he said.
Esser is the progressive crusader in the race.
For the 38-year-old public defender from Arizona, promoting public safety requires treating the underlying causes of crime. That means a “public health approach” to substance abuse and unresolved traumatic experiences in a person’s life.
The issues are personal to Esser. One of her brothers suffered from mental illness and took his own life three years ago, she said. Her other brother has a substance abuse disorder, and she said she has observed how the criminal justice system caused him unnecessary harm.
“We have to truly treat substance use disorder for what it is,” she said. “It’s a medical issue. It’s not something that needs punishment.”
People who commit crimes because of poverty or addiction should be diverted out of the criminal justice system and towards social services, Esser said.
Truancy charges for juveniles should be a thing of the past. Restorative justice – attempting to repair the harm caused by a crime – should be pursued whenever possible. Bail should be eliminated to create an equal playing field between the rich and poor, she said.
“We have to look at each individual person and ask, if there was a robbery, why?” she said. “Was it needs-based? Was it out of desperation? Unable to get a job or pay for housing? Or is it substance use?”
She acknowledges this is not how prosecutors have traditionally viewed their role. The system is designed to lead to incarceration, which Esser says does more harm than good.
“When they’re in prison, they’re locked in a cage,” she said. “We don’t try to rehabilitate them. They leave the same way they came in, oftentimes worse.”
During the pandemic, Esser has advocated for the release of some of Oahu’s inmates to reduce crowding behind bars. Her opponents have criticized her for it.
“You don’t know who is not dangerous,” Nadamoto said.
Offenders in the City and County of Honolulu had a recidivism rate of over 55% between 2008 and 2016, according to the Hawaii Interagency Council on Intermediate Sanctions. That is proof that something has to change, Esser said.
“If you have a car, and it’s not going to start half of the time, you would ditch that car,” she said. “But for some reason, we just keep investing in this system knowing that it fails, knowing that it destroys lives, knowing that it doesn’t support crime victims and knowing that it’s costing millions of dollars.”
Esser compared her plan to activists’ calls to “defund the police.” Not charging low-level crimes will save money, she said. Resources could then shift from “prosecuting public health issues” to the crimes that Esser says matter most, like violent crimes.
Esser would also put a greater focus on prosecuting people in power who she says often get a pass. This would include white-collar crime, police misconduct, doctors who overprescribe pain pills, and landlords who illegally evict tenants during the COVID-19 pandemic.
When those cases aren’t pursued, the result is that poor and marginalized populations are disproportionately charged with crimes and incarcerated, Esser said. It helps explain why Hawaii’s prisons have a greater percentage of Native Hawaiians and Pacific Islanders than the general population, she said.
Esser also wants to tackle implicit bias in the criminal justice system by preventing prosecutors from seeing a defendants’ race before they’re charged. She supports publishing statistics on the race and gender of the defendants being charged so the office can reflect on how it may be contributing to inequities.
Unlike her competitors, Esser has never prosecuted a case. But she said she has an edge over her opponents because she isn’t already embedded in what she considers a failed system.
“To truly reimagine justice, we have to completely transform it, which is going to take someone who has been fighting this their entire career,” she said. “I know how to fix it. I’ve seen the harms it is causing. I’m not perpetuating a system that doesn’t work.”
Esser represents an opportunity for the kind of criminal justice reforms activists nationwide have demanded for years, said Justin Levinson, a University of Hawaii law professor who has studied implicit bias.
“She is asking the question: Why have we been using the criminal justice system to solve problems that are better solved by other systems?” he said.
If her message seems radical, Levinson said it’s only because Hawaii has neglected to adequately examine its failed strategies. The status quo is what’s radical and regressive, he said.
But messages that stick on the mainland may not have the same effect on Oahu, Moore said.
“I’m not sure there’s the kind of support for that position in Honolulu as in some of the mainland cities,” he said.
Kau, 42, grew up in Honolulu. Her father, a veterinarian, and her mother separated when she was young. Both suffered from addiction, she said, and her mother had mental health problems.
By age 15, she was homeless on the street with her sister. She was able to attend Punahou School, but to this day doesn’t know for sure who paid her tuition.
The people Kau associated with were drug addicts and criminals, people who were living on the street too, she said.
“So when I take a position that a drug addict is not going to get treatment unless he or she is put in jail, I’m talking because I lived it,” she said. “Not me personally, but those were the people I was around.”
Being in that element, Kau said she entered into several relationships that involved domestic violence. When she went to her mother for help, she said she was turned away and had to live out of her truck.
The Prosecuting Attorney’s office doesn’t do a good enough job of gaining the trust of domestic violence survivors, according to Kau. The result is they often recant out of fear of retaliation, and prosecutors are left with weak or nonexistent evidence.
Kau wants to train the deputy prosecutors on how to better interact with victims who can feel overwhelmed and confused by the system.
“A lot of times, the victims are left in the dark,” she said.
During four years at the Prosecuting Attorney’s office, Kau successfully prosecuted a pimp named Joseph Vaimili. It was the first case in state history to convict someone with promoting prostitution in the first degree, Kau said. She said she did it by gaining the trust of one of the women Vaimili “pimped out.”
“Eventually, we got her down here, and she testified,” Kau said. “And we got him convicted.”
If Kau is elected, she said she would have a “no drop policy” for domestic violence cases. If victims back out, the prosecutors will need to continue with the case. At the very least, Kau said proceeding with the cases could cause defendants to think twice about their violent behavior.
The state Legislature failed to pass House Bill 2610 this year, which would have allowed domestic violence cases to proceed without the in-person testimony of the victim. The bill would have allowed juries to consider statements made to first responders even if a victim later changes their statement.
Kau opposes the idea. Defendants have a constitutional right to cross-examine their accusers, she said.
“This is a right you cannot take away from a person,” she said.
After she left the prosecutor’s office, Kau made a name for herself in criminal defense. She is a go-to attorney for cops accused of wrongdoing. Her clients from the Honolulu Police Department include John Rabago, sentenced last week to four years in prison for forcing a homeless man to lick a urinal; Jessie Laconsay, serving 10 years for sexual assault; and Roddy Tsunezumi, who admitted to extortion.
Nadamoto has made a point of criticizing Kau for defending “dirty cops.” Kau takes offense to that. The U.S. and Hawaii constitutions give everyone a right to a competent lawyer and due process, Kau said.
“It’s a very shallow position to take,” she said.
When it comes to holding police officers accountable for wrongdoing, Kau says the office has failed for 30 years and she would have no problem prosecuting them.
Kau would bring a dedication to the written law that the office needs, according to Honolulu attorney Jim Wright.
“If she were the prosecutor, there would be a return to consistent application of the law without fear, without favor,” he said. “Where the system falls apart is where there are unwritten rules that take over the written rules.”
In Wright’s opinion, Esser’s energy is better suited to the Legislature, and Alm is just another version of the status quo. His SHOPO endorsement in particular “leads to suspicion we don’t need at this time,” Wright said.
“No one knows what needs to change better than Megan,” he said. “She is very tough but she is also compassionate. But she understands that pity doesn’t solve social problems.”
Conversations about upending the criminal justice system frustrate Kau. The way she sees it, what could be more fair and unbiased than being judged by a jury of your peers?
“This is not a corrupt system,” she said. “This is the best judicial system that there is in the world.”
It would be foolish to eliminate cash bail, which incentivizes defendants to show up to court, Kau said. She doesn’t believe that bail creates two systems, one for the poor and one for the rich.
“I cannot think of one rich person who intentionally killed a girl that he beat up 40 times before but is now walking out on the streets because he’s rich,” she said. “That doesn’t happen.”
The American Civil Liberties Union says it does happen. The group published a report in 2018 showing that in 88% of cash bail cases, the majority of defendants could not afford the amount of bail set by the court and ended up stuck behind bars.
“Setting money bail at an unaffordable amount not only contravenes equal protection and due process rights but also permanently destroys the lives and livelihoods of thousands of families in Hawai‘i with little to no benefit to society,” the report stated.
Kau also doesn’t believe that there is systemic racism in the criminal justice system. Prosecutors receive police reports from the Honolulu Police Department and process cases blindly based on the charges, Kau said. She said she understands there is a disproportionate number of Native Hawaiians and Pacific Islanders in Hawaii’s prison system. But she says there’s a simple explanation for that.
“These are the people who are committing the crimes,” she said.
Kau’s critics say she is either naive or delusional when she claims she can prosecute crimes in an “objective” manner. Prosecutorial decisions are inherently subjective, they argue, including how much manpower to assign to certain areas.
Only one attorney prosecutes most white-collar crime cases in Honolulu, with two others on hand to assist if needed, according to Nadamoto. He said there aren’t enough of those cases to justify having three attorneys full time.
But more manpower is allocated to prosecuting the poor, Esser said. The result is not only predictable but inevitable.
“That objectivity she’s talking about – that blind objectivity – has been used as a sword against our black, brown and Indigenous communities for decades,” Esser said.
Alm, 67, grew up in Manoa and Kaimuki and joined the Honolulu prosecutor’s office in 1985. He later headed the District and Family Court Division, where he said he supervised 31 attorneys.
As a U.S. Attorney appointed by President Bill Clinton, Alm implemented a federal program meant to reduce violent crime and drug abuse, “Weed and Seed,” in Chinatown and Kalihi-Palama.
And as a Circuit Court judge, Alm said he was known for being “tough but fair.”
Alm says working at the city, state and federal levels gave him what his opponents lack: experience being a boss. Training other attorneys about how to legally and ethically succeed in the courtroom is one of his strengths, he said.
“I can hit the ground running,” he said.
Alm was also twice involved in rewriting Hawaii’s penal code. In that process, he helped eliminate mandatory minimums for certain crimes. Previously, selling a $20 bag of meth carried a mandatory sentence of 10 years. Now, the judge has the option between prison or probation for someone who is often suffering from addiction.
But Alm is perhaps best known for being the architect of HOPE Probation, which aims to keep offenders out of prison. The high-intensity supervision program, launched in 2004, monitors probationers and imposes predictable and swift sanctions when they violate rules, such as detected drug use.
It’s easier to have a job, maintain relationships with families and friends and rehabilitate on probation than it is while incarcerated, Alm said.
“A lot of prosecutors honestly think their best role is to send as many people to prison for as long as possible,” he said. “If you ask for probation and the guy goes out and kills somebody, maybe we’ll get blamed for it. Well, to me, if the person deserves probation or a deferral so they can keep their record clean, that’s what you should ask for.”
Those who are violent or persistently reoffend should be behind bars, he said. But he believes those people are the minority. Most people should get multiple chances to get on the right path through probation, drug court or mental health court, he said.
“I’m going to tell the deputies, ‘Learn to separate out who are the violent and dangerous ones, and who’s not,’” he said.
Alm calls HOPE Probation “the most successful program ever in Hawaii history.” And at least one study of the program shows positive results. In a 2010 study by Pepperdine University and UCLA that is often cited by Alm, HOPE probationers were 55% less likely to be arrested for a new crime and 72% less likely to use drugs.
Alm retired from the bench in 2016 to spread the HOPE gospel. He said the program has expanded to 32 states.
However, several studies and academic papers have cast serious doubt on HOPE’s effectiveness. A study of four other states that replicated the HOPE model found no difference in recidivism rates between HOPE probationers and a control group, according to the National Institute of Justice.
One group of academics went so far as to say in 2018 that criminologists were sucked in by Alm’s salesmanship of HOPE and failed to see the truth: that the program might not work.
“All of us are guilty of confirmation bias — of paying attention to good news and ignoring bad news — and likely more so when we have invested much in an idea,” wrote University of Cincinnati criminologist Francis Cullen and three colleagues in the Journal of Contemporary Criminal Justice. “It is our collective responsibility to ensure that Project HOPE is not allowed to flourish unchallenged in a post-factual world. Facts must matter.”
The authors called for a moratorium on further implementation of HOPE until there is strong evidence that it works. The paper noted that Alm and two policy analysts that backed the program were “unfazed by this bad news and appear to be proceeding vigorously in their evangelizing for HOPE.”
Indeed, Alm stands by his program. In states where it isn’t working, Alm says he wasn’t part of the training and they’re implementing only the sanctions pieces of the program. In essence, his argument is: They’re not doing the real HOPE program.
“If people criticize HOPE, either they’re misinformed or they’re trying to mislead people,” he said.
Ultimately, Alm says he is the most progressive candidate in the race.
“People can talk about things they’d like to do, but actually doing them in government is really difficult,” he said. “And I’ve done them.”
Loretta Sheehan, a personal injury attorney and former Honolulu police commissioner, says Alm seeks creative solutions to complex problems.
“Steve has the experience and wisdom to consistently strike the balance between the need to protect the public and the need to disassemble some of the structures in our criminal justice system that lead to injustice,” she said.
Alm’s opponents are ill-suited for the job, Sheehan said.
“It’s naive to keep the position that everything is fine,” Sheehan said of Kau. “And it’s also naive to say we should blow up the system and start over again. I view Steve as someone who can work with the people there, mentor them, train them, and raise the profile of that office.”
Nadamoto, 68, calls himself “a law and order prosecutor who will be tough on crime.”
A prosecutor at the city and state levels for over 30 years, Nadamoto said he has the experience needed to lead the office. In his view, the way to achieve public safety is to close a “revolving door” of criminals between prison and the community.
“Defendants with a history of violence must face harsher consequences when arrested on charges involving crystal methamphetamine and other extremely dangerous, highly addictive drugs,” he says on his website. “All too often, they get lenient treatment instead of lasting drug treatment and prison time.”
Nadamoto wants to crack down in other areas too. He has advocated for harsher punishments for drunken drivers and supports tougher sentences for offenders found guilty of elder abuse.
Notably, he supports the construction of a new prison that can treat offenders with substance abuse and mental health issues from behind bars. It’s an idea that is out of step with his opponents Esser and Alm who lament mass incarceration.
“It’s not just so you can put a lot of people away,” Nadamoto said. “It’s so you have enough room to treat them humanely and to give them viable or good programs. From what I understand now, it’s so crowded you can’t do much of anything.”
Since Nadamoto took over in an acting capacity, he said he has increased the number of attorneys addressing domestic violence. He also hired Scott Kessler, a “premier expert” on the issue, to consult with the office. Kessler is the domestic violence bureau chief in the Queens County District Attorney’s Office in New York.
Nadamoto also advocated for House Bill 2610, which he said would have been a “landmark bill designed to protect victims of domestic violence.” He disagrees with Kau’s opinion that it would be unconstitutional.
In his acting role, Nadamoto has shut down eight alleged brothels posing as massage parlors. During these raids, trafficking victims are connected to services, Nadamoto said.
The acting prosecutor said he is also working to restore trust in the office by being transparent and reviewing Katherine Kealoha’s cases for “irregularities.” He referred some of her cases to the Attorney General’s office.
He also instituted several internal safeguards: a hotline for employees to report wrongdoing; a requirement that two prosecutors must sign off on plea agreements and dismissals; and computer software that tracks employee activity.
Nadamoto has been criticized though for not doing enough to clean up his office. During a contentious public meeting, City Councilman Ron Menor reprimanded the prosecutor last year for failing to independently investigate the systemic failures in his office that lead to the Kealoha scandal.
That’s a job for the feds, Nadamoto told Menor.
“Basically the federal government has conducted the investigation and they have left, as I said, no stones unturned and they have the greater ability to do it,” Nadamoto said in council testimony.
Nadamoto said he knew Kealoha as an acquaintance and never worked with her on a case.
Menor’s Resolution 19-156 urging the Honolulu Police Department, Police Commission and Prosecuting Attorney’s office to review their failures and outline corrective measures never passed.
Nadamoto said he got into the prosecutor’s race to counter the candidates who had already declared – people he thinks aren’t focused enough on public safety. He describes his opponents as “soft on crime,” untrustworthy and inexperienced.
Esser advocated for the release of inmates to prevent the spread of COVID-19 in prison, a move Nadamoto thought was foolish. Kau is a defender of corrupt law enforcement, Nadamoto says. And Alm’s HOPE program “is not as good as everybody says it is.”
“I’m all for giving people a chance,” he said. “But you cannot be giving these people chance after chance after chance.”
Nadamoto defended his office’s work in the case of a former Honolulu police officer who was sentenced to probation in 2019 after pleading guilty to sexually assaulting a 5-year-old. He said the case lacked physical evidence because the crime was reported years after it occurred.
“It’s basically a ‘he said, she said,'” Nadamoto said.
When it comes to racial disparities in the criminal justice system, Nadamoto said the office mostly considers cases that HPD gives them. That doesn’t include many white-collar crimes, he said.
“We do the cases that come in,” he said. “We don’t do a lot of our own investigations.”
Honolulu voters have already started receiving their mail-in ballots. Completed ballots must be received by the Honolulu Clerk’s Office by 7 p.m. on Aug. 8. The city is advising voters to mail their ballot three to five days before Primary Day to ensure the city receives it by the deadline. You can also drop your ballot off at a voter service center or one of the city’s new ballot drop boxes.
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