In Hawaii, It Is All Too Easy To Punish - Honolulu Civil Beat


About the Author

David T. Johnson

David T. Johnson is professor of sociology at the University of Hawaii Manoa and the author of many works on criminal justice, including “The Japanese Way of Justice: Prosecuting Crime in Japan,” which received awards from the American Sociological Association and the American Society of Criminology.

For many years all it took to prosecute a person accused of a petty offense in Hawaii was the prosecutor’s signature.

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Then, late last year in State v. Thompson, the Supreme Court of Hawaii ruled unanimously that prosecutors must comply with a 130-year-old law requiring a signed affidavit or official declaration from a complainant in order to file criminal charges. That decision led to the dismissal of more than 1,000 misdemeanor and petty misdemeanor cases — and to widespread lamentations that requiring prosecutors to obey the law was a step too far.

The Hawaii Legislature has reversed course and restored the previous status quo with remarkable alacrity. On March 21, Gov. David Ige signed into law the aptly named Act 2, which declares that past practice is present law.

Once again, all that is required to file a valid criminal complaint is a prosecutor’s signature. Since many of the misbegotten misdemeanor cases were dismissed “without prejudice,” prosecutors can refile them — and they say they will.

‘A Just Result’

Hawaii’s prosecutors are pleased that the criminal process has been streamlined, and the Honolulu Star-Advertiser’s editorial page has called it “a just result.” Kauai County Prosecutor Rebecca Like said, “The passage of this bill will allow our office to focus on prosecuting offenders without worrying about cases getting dismissed.”

Hawaii County Prosecuting Attorney Kelden Waltjen believes the new law fixes problems caused by “the dismissal of criminal cases on technicalities across our state.”

And Honolulu Prosecuting Attorney Steve Alm said the “net effect” of the new law is to “just take us back to what it was before Thompson … That’s the way it had been done for decades. So we are just going to go back to that — that’s the beauty of this.”

OCCC Oahu Community Correctional Center.
A new Hawaii law will make it easier for prosecutors to refile cases. Is that really what we want? Cory Lum/Civil Beat/2022

But there is nothing beautiful about making it easy to punish. The criminal sanction has limited capacity to do good and great potential for doing harm. It should not be easy to punish people. It should be hard.

We should be able to punish people only if we are willing to spend considerable time, money and effort to do so. Yet in Hawaii, as in criminal justice systems throughout the country, it is all too easy to punish.

The penchant for punishing easily is especially striking in misdemeanor cases, which are filed 13 million times a year in the United States, and which are almost always disposed of through plea bargaining. The belief that legitimates the speed and sloppiness of misdemeanor case processing is that minor arrests and convictions are not especially bad for the people who experience them.

This is a pernicious myth because to be cavalier about procedure and evidence is to be cavalier about dignity and guilt. And to be cavalier about a person’s dignity and guilt while we are convicting them of crime is to say that we do not really care about them or what they did.

Criminal trials seldom occur even in felony cases. The vast majority of such cases are disposed of through plea bargaining — over 97% at the federal level, and about 94% in the 50 states. These percentages have been increasing for decades, leading some analysts to wonder if we are experiencing the death of the American trial.

Plea bargaining has many well-documented problems. It distorts the truth because defendants often plead guilty to crimes that bear little relation to their actual conduct. It sacrifices many foundational principles of criminal justice, including the presumption of innocence, proof beyond a reasonable doubt, the privilege against self-incrimination, the right to confront and cross-examine witnesses, and the principle of lay participation in criminal adjudication.

Plea bargaining also concentrates immense power in the prosecutor’s hands, and it forecloses opportunities for appellate review and the detection of error. Ultimately, plea bargaining is punishment without trial, and it is not even mentioned in the Constitution.

The most serious problem with plea bargaining is its coercion. Many plea “deals” are not “negotiated” in any meaningful sense. They are admissions of guilt made under compulsion in response to Godfather-like offers that “cannot be refused.”

A plea offer typically takes this form: accept the punishment that is being offered now, or go to trial and (if you are convicted) receive a much harsher punishment. There is no principled justification for confronting defendants with this Hobson’s choice.

The American practice of plea bargaining is rooted in sheer expediency. Studies show that the “trial penalty” — the extra punishment that defendants receive for having the temerity to exercise their constitutional right to trial — is so large that it renders the right to trial an empty promise.

People are little protected when they are accused of a crime.

In Hawaii and the rest of the United States, the primary proximate cause of mass incarceration is prosecutor-driven prison admissions through these problematic plea bargaining practices.

But there is a second major flow into our jails and prisons, and that is people who have been released and re-incarcerated for having committed criminal or technical violations while on probation, parole, or community supervision. Entrance through this revolving door comprises 45% of state prison admissions and 25% of federal inmates. Most of the returnees are locked up again with little due process.

In American criminal justice, our actual practices could not be further from our stated ideals. People are little protected when they are accused of a crime. They are deposited onto a legal assembly line that carries them from accusation to conviction as expeditiously as possible. At the urging of local prosecutors, the state of Hawaii has decided to keep this assembly line moving.

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About the Author

David T. Johnson

David T. Johnson is professor of sociology at the University of Hawaii Manoa and the author of many works on criminal justice, including “The Japanese Way of Justice: Prosecuting Crime in Japan,” which received awards from the American Sociological Association and the American Society of Criminology.


Latest Comments (0)

I was bullied and threatened to beat me up by a person on the beach, after their dog attacked me and my dog and I confronted them. I reported it to police, who said I would have to sign statement and perhaps testify in court to prosecute them, and it would be their word against mine. My concern was that this person would then know who I was and perhaps later retaliate in vindictive way - This is just example of how many people who have been abused do not confront their abuser without fear of retaliation. I shared this concern with the police - who empathized - and said that they would still investigate my report as I got their car license number and discuss with the individual and warn them about continuing this behavior in the future. The police said my verbal complaint - without my name attached -would be in notes on their record, so if they did it again and were reported it would be more difficult for them to deny the pattern of bullying abusive threatening behaviors. So in this case if a prosecutor could pursue this without my name-signature it would be more likely they would be punished for threatening physical assault without victims concern for retaliation.

Chris · 5 months ago

Thank you Dr. Johnson! I am appalled that our legislators, the governor, and all of our prosecutors are happy to avoid living by the letter and spirit of the the promises of the US Constitution. How can we be preaching "democracy" and "due process" to the rest of the world, when our leaders knowingly refuse to practice it themselves?

JusticePlease · 5 months ago

"But there is nothing beautiful about making it easy to punish. The criminal sanction has limited capacity to do good and great potential for doing harm. It should not be easy to punish people. It should be hard.We should be able to punish people only if we are willing to spend considerable time, money and effort to do so. Yet in Hawaii, as in criminal justice systems throughout the country, it is all too easy to punish."I do not agree with the author on this and believe that we have laws, rules and potential punishment for a reason: to reduce and deter crime. We need only to look whats happening in all of our cities with the shift to woke-prosecutors: A dramatic rise in crime and also a loss of quality of life. The whole "Broken Windows Theory" has stood the test of time for a reason, that being deal with the minor issues before them become major issues. Ignoring misdemeanor crimes as the author suggests has led to lawlessness in most cities (just look at the shoplifting epidemic..) and the general population is tired of coddling lawbreakers. It not hard to do the right thing and avoid prosecution altogether, don't commit crimes and you won't get arrested!!! Thanks..

surfer60 · 5 months ago

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