Editor’s note: The Civil Beat Editorial Board and several reporters spoke with the staff of the ACLU of Hawaii including executive director Josh Wisch, policy director Mandy Fernandes, Smart Justice Campaign Director Monica Espitia and legal director Wookie Kim.  This interview has been edited for length and clarity and with an eye toward using several areas of the discussion as the basis for other stories in the next few days.

Civil Beat: We thought we’d begin with some opening remarks from Josh regarding where we are with ACLU priorities.

Josh Wisch: A little bit of background about the ACLU of Hawaii: It’s one of the oldest, largest civil rights organizations in the country. Nationally, we just finished our 100 year anniversary. Locally here in Hawaii we have been around, I think, for just about 55 years. And we work in courts, legislatures, the communities to preserve the individual rights and liberties enshrined in the laws and Constitutions of the United States and the state of Hawaii.

In terms of the work we’re focused on right now — reimagining the role of policing, decriminalizing poverty or continuing smart justice work — there are really kind of some themes and through-lines that run through all those things.

There really are two very different systems for people, and it’s based on race and privilege and socioeconomic status. And we see that there are two different systems for people who get arrested and people who don’t. They’re two different systems for who gets to prepare for trial while at home, holding down a job, taking care of their kids and who has to prepare for trial while sitting in a jail cell. Two different systems for who gets long prison sentences and who doesn’t. Two different systems for who gets access to health care and critical things like vaccinations right now and who doesn’t.

ACLU Executive Director Josh Wisch says the organization is particularly interested in eliminating social justice policies and practices that create two different worlds for people. Screenshot

The way things are working right now in these areas is really not making us safer. And we need to course correct. If you take a look at FBI figures, since about 1985 property crime has been on a general downward trend. In Hawaii, violent crime has stayed about consistent. But during about that same period, the number of people we incarcerate has increased by over 470%.

And so the level of crime isn’t changing. We’re just putting a lot more people in cages. We’re also not providing reentry support. We’re not stopping needless arrests. And we’re making things a whole lot worse with policies like sweeps that have only resulted in increasing the number of people in our state without shelter.

And then one last theme is that it’s crystal clear that we really need to divest from the punitive, harmful system that we currently use, and reinvest in communities. And I think it’s worth noting that the public actually agrees with us on this. We did a poll around April of last year and that showed, among other things, that about 72% of Hawaii respondents felt that we needed to provide alternatives to incarceration like rehab services, training so people could reenter (society). Only 28% of respondents thought that the right answer was longer and harsher prison sentences.

We lock up 487 people for every 100,000. That puts us well above most wealthy democracies. So the state of Hawaii is locking up more people per capita than most wealthy democracies.

And everything we’re doing is just continuing that. Last year, the city passed a budget for the police that was about $300 million and it was the second largest line item out of everything at the same time. They were devoting about $10 million to dealing with houselessness. And if budgets are telling you what your priorities are, that shows you that our priorities are well out of whack.

So you see these issues running through the policing and why that system isn’t working. You see it running through why we’re focusing on decriminalizing poverty in the state, where 42% of people can’t meet basic needs and sometimes it becomes critical to people’s lives. Two-thirds of people as of December at OCCC had not been convicted of a crime. But they’re stuck in there in an overcrowded jail, risking catching, and possibly dying from COVID-19.

And then you see this all through the system of mass incarceration, which is why we need to make significant reductions and we need to do a ton of work on racial disparities in that system. So for now, I’ll dismount from my soapbox and of course, generally open it up for questions.

We’re almost at the halfway mark of the Legislature. Mandy, anything hopeful on your radar at the Legislature?

Mandy Fernandes: One of the bills that is giving me hope we’re referring to it as Breonna’s Law. It’s named after Breonna Taylor, the young woman in Louisville, Kentucky, who was murdered by police in her own home late at night when they executed a botched no-knock warrant. And this bill essentially bans no knock warrants in Hawaii and it requires police to wait a minimum of 30 seconds prior to forcing their way onto a property when executing a warrant.

We know that no-knock warrants and quick-knock raids, which are also a problem, often rely on the element of surprise, which can escalate into violence very quickly, because as you could imagine, if you’re asleep at night, late at night or early in the morning and all of a sudden you hear somebody forcing their way or knocking really loudly on your door, you’re going to assume that they’re not your friend.

Another bill that’s giving me hope is the equal access to abortion bill. So this is House Bill 576 that would allow qualified APRNs to provide early in-clinic abortions. We know that currently people on several islands, including Kauai, Molokai, Lanai and the West Side of Hawaii do not have access to a local care provider and are required to travel long distances during COVID-19. Of course, this creates increased risk of spread.

Mandy Fernandes, the ACLU’s policy director, has been closely tracking legislative proposals this session. Screenshot

There’s another bill that requires the phase out of private correctional facilities (and) requires permission from the Hawaii Correctional System Oversight Commission before any new correctional facilities can be built or before there can be any expansion of facilities. We have a lot of hope about that one, too. So these are all currently alive.

So just back on Breonna’s Law for a minute. Do you guys have any stats or any evidence that that’s a problem here in Hawaii, at either HPD or in any of the counties? 

Fernandez: So while most of the momentum has come from the continent and most states allow no-knock warrants, only three states have expressly prohibited them. And in Hawaii, we haven’t really heard of no-knock warrants being issued, but we have heard of quick-knock raids.

What’s the most pressing health equity issues that you folks are tracking, especially induced by the pandemic. Specifically, we are looking for an update on how the state responded to your demands for safety and (protection) in our correctional facilities.

Wisch: This one’s been infuriating from the get-go. One of the major health equity issues has been the fact that there has been so little regard for people who were in a petri dish of a situation for COVID, which was jails and prisons. And ACLU, Lawyers for Equal Justice … and other groups were saying from the very beginning of the pandemic that we needed to get people out of jails and prisons.

And what we saw were prosecutors and elected officials and others just pushing back every step of the way. And unfortunately, after a while, all of us were proved right when we saw the single largest outbreaks of COVID-19 anywhere in the state in our jails and prisons and now multiple deaths from it.

Clearly there still needs to be a lot of work done here. It’s good to see that there was some prioritization of the vaccinations, but they still haven’t been going out quickly enough, especially considering these folks literally have nowhere to go.

But just for some more specifics, Wookie, if you had that kind of specific updates that you can share? I’ll turn it over to you.

Wookie Kim: Sure, so on the issue of equitable access to health care and just being treated equally, we sent a demand letter to the state expressing concerns about the way that people who are incarcerated are treated under the state’s vaccination plan. We sent that letter back in January and we followed up again because we remain concerned that this is unequal, unconstitutional treatment to basically discriminate against people who are incarcerated solely by virtue of them being incarcerated when they would otherwise qualify under the state’s plan. So that’s one example regarding just COVID-19 in jails and prisons in general.

Wisch: And if I can add just two things on top of that, again, I mentioned we did this poll last year and one of the other places where people are getting this and agreeing is that I think it was 60% of respondents were in favor of compassionate release. So most of the state also was keeping an eye on that.

And then one other health-related aspect of the pandemic is also how it’s relating to people who are unsheltered. One of the things that we shouted to the rooftops early and often was that the CDC guidance as part of the pandemic was to leave alone encampments of people who were houseless, because if you went and swept those places, you would disconnect people from social services. If you tried to force them into shelters, it would make it more likely that they would get COVID. And in the face of all of that here on Oahu, to some extent, at least on Hawaii island as well, they were still doing those things. There were some exceptions.

What is better about it? But that’s another area where this was frankly, these folks were actually safer was the general conception from COVID that most people who were living in indoor congregate settings, and yet they were still getting swept straight through it.

ACLU Legal Director Wookie Kim says his organization is trying to improve transparency within the police department through litigation because it will lead to better policing practices and safety for citizens and the community. Screenshot

The ACLU made a decision to jump into the lawsuit that was filed (by SHOPO) to basically declare Act 47 unconstitutional. Why did the ACLU want to get involved with this fight over police misconduct records and why now?

Wisch: We’re always going to be concerned about issues of transparency and we’re very much focused on, again, reimagining the role of policing in general and the abuses that occur there. And transparency is key to shed light on that. But let me turn it over to Wookie because he has been running point on that more than I have.

Kim: I think Josh hit the nail on the head that first of all, the fact that we are focusing on reimagining policing has meant that we’ve been thinking about the different ways in which current policing practices harm the community and harm people. And one of the baseline problems is that there is very little transparency into what is going on and what happens behind the scenes. And while the ACLU originated as an organization defending unions, that defense has not been unequivocal.

The police union was trying to maintain a special exemption from the way that any other government employee is treated under the relevant open records law. And so our position is that not only should police officers be held to the same standard as every other government employee, but that they should be held to an even higher standard.

The police unions in New York challenged a very similar law that also removed the special exemption for police officer disciplinary records. And they filed a lawsuit in federal court. They addressed the equal protection argument and agreed that not only was there no equal protection argument from the police officers, but that there’s good language here that police officers should be treated to even a higher standard than the typical government employee.

So all of that is to say we need to understand what is happening behind the scenes: the collective bargaining agreement and the way that the disciplinary process plays out. We as a community have very little visibility into it. And so we need to fight on the margins where we can where we know there is a legitimate basis to obtain records.

In our experience covering police issues, police misconduct in Hawaii over the years, there seems to have been almost a lack of outrage or lack of effort to change the way things are done in the islands. And obviously, with what’s happened in the wake of George Floyd’s death, maybe there’s a little bit more of a movement happening. But there is still a lot of — you could call it bureaucratic inertia or something — in Hawaii that seems to stop progress in changing things that are seemingly simple.

What are some of the biggest challenges or the biggest impediments to actually enacting some sort of change? Is that the police union, is it the Legislature? Is it the police department? Is it the lack of information? Like what? What would you say are sort of your top one or two challenges or hurdles?

Monica Espitia: I think one of the biggest things is people are spurred to action a lot by when something happens to them. The problem in Hawaii is that there’s a big culture of retaliation.

So we hear tons and tons and tons of stories. And whether it’s people that are incarcerated, people who have loved ones incarcerated, people who have had very negative interactions with the police and they’re simply too scared to come forward or they move forward a little bit and they get a little bit of pushback and then they get scared.

So I think that this is something that is definitely a piece of that. Because this is something that makes me so angry because we hear the stories and then I can’t do the stories justice. Whether we go before the Legislature or whatever it may be. We wish that these stories could be told more often and by the people who are directly impacted by it.

Wisch: Monica, thank you for sharing and enforcing it. We definitely need and want to hear those stories. And yet people are scared.

I will say that that one thing that has to happen is not just the constant pushback that we’re seeing, for instance, from Chief Ballard, that when HPD’s own statistics show tangible proof that they have this disparity on use of force, we need to get more from Chief Ballard than — regarding the Black Lives Matter movement —  saying that we’re kind of OK here in Hawaii and can you leave the 50th state alone.

And it’s good to see that some of the police commissioners are starting to push back on that a bit and are starting to ask some tougher questions. But we also really need to see the commission pushing more on that. And I know that Monica has been working with folks who have been attending some of those hearings and also putting in some really good questions. And I think that that’s going to be helping.

Just going back to this idea of the two different worlds. Can you talk a little bit about what it is the ACLU is doing around bail reform at the moment? Are you doing anything specific? And do you have any current statistics relating to what’s happening with bail?

Wisch: We released a fairly comprehensive report on bail reform a couple of years ago. The final report was based on a full year’s worth of data. And some of the things that we found was, I think that bail was assigned in something like 90% of cases. Something along the lines of half of the people couldn’t afford the bail on Oahu. The median bail amount for the lowest level felony, I believe, was about $11,000. I don’t know about you folks but I don’t have $11,000 hanging around.

Fernandez: There are a few different bills that would aim to reform our pretrial practices, and they were centered around recommendations that were made by the Pretrial Practices Task Force from a couple of years ago. And the recommendations that didn’t make it into the bill that I think ultimately became Act 179 in 2019, one of the bills that is moving now, and I believe the only one that is still moving, is Senate Bill 1260. It implements two of the recommendations from that task force.

Quite frankly, they are very modest changes and the exceptions are so broad at this point that the population that this would effect is quite limited. So we don’t see this as very meaningful reform in the area of pretrial reform.

I know that Illinois just became, I think, the first state to end cash bail. And they did this in an 800-page omnibus law. It touched on police reform in all areas of the criminal justice system. And it was led by the Illinois Black Caucus. And this just passed into law the other day.

Hawaii does not seem to be there yet, but we need to get there. People can’t wait any longer. So bills like SB 1260, I can understand why they get a lot of support by advocates and reform advocates, because they’re a step forward. But we can do so much better.

Espitia: I think another thing worth mentioning is when I last looked at the numbers, it’s something like 30% of the people incarcerated are pretrial.

And then when you’re talking about building, say, like a new OCCC, they’re saying like it’s mostly for pretrial. So you want to spend $500 million-plus on a new jail when you haven’t even really done pretrial reform like that. I don’t understand that. I will never understand that. I think the better way would be to actually attack fixing our bail system before you go investing half a billion dollars. And I think that that’s being conservative on a new jail.

Monica Espitia is the Smart Justice Campaign director for the ACLU. Screenshot

Wisch: And just tacking on to that, like what we’ve seen across the country is when you build a new jail, especially in a state or county, you fill the jail. That’s what happens. It’s not that suddenly you have more space. They find reason to fill the jail, which is not going to make us any safer, which is a key thing to keep in mind.

And one more thing on those kind of the two different worlds here is, I believe, the correct statistic on this. It’s been generally studied that within about 72 hours of being arrested, the three things you start to lose are your job, your housing and access to your children.

And so keep in mind, there are two main purposes of bail. One is to make sure that you return to court and one is to protect public safety. It is not supposed to be punishment, but that is absolutely how it’s being used.

And so what happens with these two different rules?  If you have the money, then you can get out and you can prepare for trial at home while you still have your job, while you still have your housing. And if you don’t, then you sit there and you lose all of those things. And this is one of the reasons that people after a while will plead guilty, whether they are guilty or not, just to get out. So that they can get their job back, so that they can get their housing back.

So is the ACLU in favor of abolishing cash bail?

Wisch: Generally, yes. The only reason I say generally is that there’s been some discussion about whether cash bail is ever actually the least restrictive way (to go). But for the most part, yes, we want to get rid of it. And the reason is, again, going back to what is the purpose of bail, which is to make sure that people return to court and to protect public safety. And there are other methods that have been proven to be better at that. Things that are pretty simple these days, like text message reminders have been put together in other jurisdictions, costs a whole lot less.

A last question about body cameras for police. Josh, understanding correctly your position, you’d like to see a uniform policy statewide versus county to county. Could you explain a little bit about that?

Wisch: So we know that there has been this recent report that came out that showed that there were a number of instances in which the police just turned off their body cameras, just deactivated their body cameras when they were doing things like slapping and kicking people. And HPD has a policy on this, but it seems pretty darn clear that they are not following that policy.

Probably the best thing to do is to make sure that we do have a uniform law across the state. So it’s not just that the departments are choosing when and when not to follow these policies, which at the moment appear to be pretty toothless.

Fernandez: I would just add that body cameras are not a silver bullet and they come with a bunch of complicated issues and the need to balance transparency and accountability and also privacy of the public. Because a lot of people are going to be captured on body cameras, especially in protest situations. Historically mass surveillance like that has not been a tool of liberation, it has been a tool of oppression. And when you start equipping body cameras with technology like facial recognition technology, or if you’re able to take stills from body camera footage and run them against the database and things like that. Right now we have no law preventing them really from doing that, though there has been some dispute about that in Honolulu. That becomes very dangerous.

And we need to make sure that there are very clear guidelines established in statute or established by ordinance that make clear when body cameras have to be activated and deactivated. How long do they retain it to get access to that footage? These are all things that are very important and will make sure that it’s not just up to the discretion of the individual officer, because that’s when we really run into problems. There need to be consequences when those laws and those guidelines are not followed.

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