At the start of the session in January, a flurry of bills were introduced that sought to criminalize the latest and scariest public fixation. Some were legitimate and have survived the gauntlet of our legislative process, but others — from the point of view of a criminal defense attorney — were scarier than the crime itself.

The fentanyl bill is a good example. The public is terrified of this synthetic opioid. And for good reason. It’s addictive and deadly. To address the rising overdoses and deaths, House Bill 506 was introduced.

Citing an unidentified two-decade old report, the bill states that “various illegal drugs” have threatened the state before and “to address the presence of drugs and evil substances in the community, it is imperative that the legislature take action against opioids.”

The answer? A new crime specifically targeted at fentanyl. The bill proposed that anyone possessing, distributing, or producing fentanyl in any amount is guilty of a class A felony.

That was a shocking departure from our drug laws. Not all drug offenders are created equal. The harshest punishments are designed for dealers and manufacturers, intermediate sentences for mid-level dealers, and the lightest sentences for users. The bill obliterated these distinctions and exposes everyone — from the unlawful manufacturer to the addicted user of a single pill to 20 years imprisonment.

Not only that, but while fentanyl is indeed the scary new drug out there, it’s already covered as a “dangerous drug” under existing drug laws. Possession of a single fentanyl pill can lead to five years imprisonment, 10 years if there’s more than 25 pills, and distribution of 25 or more can lead to 20 years. Thankfully, this radical bill got nowhere. It just wasn’t the year for drugs.

The focus this year was on white collar crime. The new crimes of 2023 are a reaction to the now notorious revelations of public corruption by lawmakers, prosecutors and other public officials in the last few years.

From the looks of it, the offense of “official misconduct” in House Bill 986 criminalizes public servants from being bribed with perks and any type of benefit. This is a bit broader than the existing bribery law that focuses on money or economic gain. There’s also a new set of fraud statutes and a new way to obstruct justice with coercion and deceit.

Nor are the penalties a slap on the wrist. These new offenses are all felonies. Official misconduct can lead to five years of prison. Coercive obstruction can lead to a decade of imprisonment. 

These new crimes will join the hundreds of criminal offenses that we already have on the books. Most are in the Hawaii Penal Code. In it, you’ll find a wide range of criminal conduct from murder in the first degree to my personal favorite: theft of a beer keg, a statute passed in 2008 during the copper theft craze. It was intended to crack down on the rising theft of metal beer kegs that were “redeemed for fast cash at scrap dealerships.”

It’s one thing to pass the law, it’s another thing to investigate and prosecute people who violate it.

Of course, creating a new offense doesn’t stop crime. It’s one thing to pass the law, it’s another thing to investigate and prosecute people who violate it.

Here’s how it works. The state’s executive branch has the power to enforce criminal laws. Within that branch the power to prosecute vests in the Attorney General’s Office. The AG’s office handles white collar cases like insurance fraud, cases involving state agencies, or rare cases that “have statewide impact or implications.”

Last year a new division in the Department of the Attorney General was established specifically to investigate and prosecute public corruption and human trafficking called the Special Investigation and Prosecution Division. Those prosecutors and investigators are best equipped to enforce the new crimes of this session.

It’ll take time though. Unlike street crime, these kinds of investigations and cases take a great deal of time. The careful prosecutions of lawmakers and public officials that raised the public’s awareness in the first place took years. There’s no reason to think it would be any different for these cases. The ink on the governor’s signature will likely be dry for some time before we see an indictment accusing a public official of committing one of these new-fangled offenses.

But the cases brought by the attorney general are few compared to the cases in the news and on the docket. The power to prosecute is also delegated to the counties. The vast majority of cases in Hawaii are brought by local prosecutors employed by the county.

The kinds of cases they bring depend almost exclusively on local police forces investigating, gathering evidence, and turning over what it has to them. In other words, the prosecutors tend to be limited to what the police bring in.

What kind of cases do the police typically bring in? Who are the people the police arrest or cite? It’s not really misconduct of public officials. It’s seldom fraud. Cops are responding to calls about people who live outside, about people having a psychotic break or people who may be in the act of committing a crime.

Police are stopping vehicles with expired safety decals or looking in on people who live in their cars. It’s evidence of drug use, theft or violence. These cases become the majority of criminal cases churned out by county prosecutors and heard in court. These cases are much easier to investigate and prosecute than public corruption, bribery or false statements.

Where the police patrol is another factor. Cops aren’t typically surveilling the mean streets of Wailea on Maui or Kahala on Oahu. Working class neighborhoods, homeless encampments, and industrial areas tend to be overpoliced. The result is that more poor people or those on the lower end of the socio-economic scale are arrested and charged.

That’s also why most criminal defendants are represented by public defenders. They are vulnerable members of our community who are the easy pickings for the police to investigate and prosecutors to convict. It means the poor, the mentally ill, and the disadvantaged are overrepresented in our courts, jails, and prisons. It’s what scholars and activists call mass incarceration.

That’s not to say there is no need for the anti-corruption crimes passed by the Legislature this year. Far from it, the calls for reform have been overdue and the struggle to get meaningful reform will only continue. The new crimes, along with the other laws to strengthen good transparent government, are a step in the right direction, but they aren’t the final step.

Criminalizing conduct may not be the best answer either. Defendants for white collar crimes will add to the lengthy court dockets chock full of good old fashioned property crimes and crimes of violence. If they get any time, they will contribute to the mass incarceration plaguing our jails, prisons, and society. Perhaps next year, we’ll tackle that too.