A statewide standards commission recommended new felonies dealing with fraud, false claims and statements that may allow state and county prosecutors to bring charges against public officials similar to those brought by federal prosecutors in a string of public corruption cases this year.

The U.S. Department of Justice has brought a handful of cases dealing with bribery and other forms of public corruption under the broad federal crime of honest services wire fraud, a felony. Those include cases against two former lawmakers, former county officials and several businessman who bribed them.

“It would have been difficult if not impossible to charge those cases under the existing state laws,” Flo Nakakuni, a deputy Honolulu prosecutor, told the Commission to Improve Standards of Conduct on Wednesday.

The commission was formed in February after two former lawmakers, J. Kalani English and Ty Cullen, pleaded guilty to accepting bribes to influence legislation. The commission was tasked with making recommendations on new laws to weed out corruption and strengthen government ethics and transparency.

Federal Building and US Courthouse.
A state commission is recommending new laws that could aid county prosecutors in charging public corruption. Cory Lum/Civil Beat/2022

The new felony charges, which mirror federal crimes, would be punishable by up to 10 years in prison in the case of fraud charges and five years in prison in the case of the two false claims and statements charges. All the charges carry mandatory minimum sentences of one year. The new crimes could be applied to both government employees and the general public.

Kristin Izumi-Nitao, a member of the commission and director of the state Campaign Spending Commission, said these measures exemplify the kinds of bills the commission should be recommending.

“Think about what we were charged to do,” Izumi-Nitao said. “We saw an extraordinary amount of criminal behavior. Hopefully these types of laws will deter future conduct in those areas … there needs to be less acceptance to turn the other cheek, to turn a blind eye.”

But the mandatory minimum sentencing provisions saw some pushback by at least two commission members as well as the Office of the Public Defender and the American Civil Liberties Union of Hawaii.

Nikos Leverenz, who along with Janet Mason voted against the new felony proposals, said the bills cast a broad net and the state must still address other issues with incarceration and the criminal justice system.

In a letter to the commission, the public defender’s office said the bill may tie the hands of judges when it comes to sentencing.

“Not all conduct, which would constitute fraud, are the same, and therefore, should not be treated the same,” the letter said.

The office compares two examples that could be charged under the bill. One, of an employee who claimed sick leave while not sick. The other, of a former airport officials who took part in a bid-rigging scheme in the early 2000s.

“The employee claiming unauthorized sick leave should not be punished the same as the airport officials. But, as currently written, the draft bill would subject both to mandatory prison sentences,” the letter said.

Nakakuni, the deputy prosecutor, said this new fraud statute would not likely be appropriate to charge a worker for sick leave abuse. She said state attorneys general and county prosecutors should be judicious in how they use the new statutes, if they are enacted into law by the Legislature, which convenes in January.

“Bad facts make bad law, and that’s the last thing prosecutors want,” she said.

Nakakuni said mandatory minimum sentences were included as a means of deterring criminals and providing some people cooperating with an investigation assurances that the target of a criminal probe would face at least some time behind bars.

Also Wednesday, the commission advanced a proposal to dramatically increase the amount of public funding available to candidates in future elections.

The commission is heading into its final stretch of meetings and will soon begin drafting a full report of all its recommendations to the next Legislature. That report is due mid-December.

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