The paroling authority sets the minimum terms that inmates must serve before they can be released from prison, a task that other states assign to judges.

The Legislature has ordered up a task force to study whether the state should remove one of the most important powers now wielded by Hawaii Paroling Authority — the power to impose minimum sentences on prisoners who have been convicted of felonies.

Hawaii is the only state that assigns to a paroling authority that responsibility for setting minimum sentences, according to the Hawaii Correctional System Oversight Commission.

In most other states minimum terms are imposed by the judges who preside over the inmates’ criminal trials or plea agreements, and hear the arguments and evidence in the criminal cases.

The Hawaii Paroling Authority is a five-member board that operates almost entirely out of the public eye. Retired Intermediate Court of Appeals Judge Dan Foley described it as “the most powerful paroling authority in the United States.”

Halawa Correctional Facility tour with chess game, as we entered, all inmates were corralled back to their cells and a chess game was left unfinished.
A chess game at Halawa Correctional Facility sits unfinished after staff at the prison ordered the inmates back to their cells. State lawmakers want a new task force to recommend changes to the parole system, and to consider whether judges should set inmates’ minimum terms rather than the Hawaii Paroling Authority. (Cory Lum/Civil Beat/2019)

“There’s none more powerful,” Foley said. “It sets the minimum, can reduce the minimum, decides when someone is paroled, (can) revoke parole, all under rules and guidelines that they set. It is the most powerful.”

This year lawmakers approved House Concurrent Resolution 23, which creates an 18-member task force to study HPA’s current procedures and recommend what changes should be made. The resolution specifically asks whether responsibility for setting minimum terms should be removed from the authority.

Last year the HPA imposed minimum prison terms for 488 people for convictions for 1,137 crimes. The convictions in those cases ranged from breaking into a car to second-degree murder.

The paroling authority also heard requests last year from 1,462 prisoners who were seeking release on parole, and granted parole to 528 inmates. It considered 162 requests for reductions in inmates’ minimum prison terms, and agreed to reduce the minimum terms for 31 prisoners.

Hawaii is one of 33 states that primarily uses an indeterminate sentencing scheme in which judges generally set the maximum prison terms for convicts. For example, a Hawaii judge may impose a sentence of up to five years in prison for a Class C felony conviction.

In some cases the same judges will also impose minimum terms that are required by law, such as mandatory minimum terms for repeat offenders or offenses that involve the use of a firearm.

But in most cases it is left to the paroling authority to compile criminal histories, psychiatric reports and reports from the correctional system, and then meet to set the minimum terms the inmates must serve before they can be considered for parole.

Victims and prosecutors are allowed to provide information to the HPA for the minimum term hearings, which generally last 15 to 30 minutes. The prisoners can also address the board or be represented by a lawyer at those hearings.

The resolution creating the task force describes that process as “redundant and time consuming,” and then cites an estimate that setting prisoners’ minimum terms takes up about 30% of the HPA’s time.

Fred Hyun, chairman of the HPA, declined to be interviewed about the task force, saying through a spokeswoman it would be premature to comment before the task force is actually assembled.

However, Hyun supported the resolution that created the task force, and submitted written testimony suggesting the process “should remove any perception of redundancy and promote a fair and just process acceptable to all parties to include inmates, victims (and/or family) and the criminal justice system.”

Edmund Hyun
Edmund “Fred” Hyun, chairman of the Hawaii Paroling Authority. (Courtesy: Governor’s Office)

Foley, who wrote rules governing the operations of the HPA in the early 1990s and has represented prisoners at minimum term hearings, said he believes the courts should set the minimum terms.

When HPA sets minimum terms, it is relying largely on information available to the courts when the courts set the maximum terms, Foley said.

HPA has an “incredible workload,” and Foley contends there is no purpose served by having HPA set the minimums.

Removing responsibility for setting minimum terms from HPA would “allow them to spend more of their time supervising parolees, doing parole revocation, doing parole, so I think it’s a win-win,” Foley said. “I hope the Legislature moves forward on that.”

Retired Circuit Court Judge Michael Town, who also served as a member of the paroling authority for eight years, agreed. He said having HPA set minimum terms merely “creates another layer of government.”

“I just don’t think it’s a wise use of resources, and it backed up the calendar” of the HPA during his tenure, he said. Town is a member of the Hawaii Correctional System Oversight Commission, which will convene the task force, but Town said he is expressing his own opinion.

The state Public Defender’s Office also supported the resolution, saying it makes sense to examine “whether the administration of justice would be better served by having the sentencing court set the minimum term.”

HPA uses detailed guidelines for setting the minimum terms it imposes, and has chosen in some cases to impose minimum terms that are equal to the maximum terms. That essentially eliminates the possibility of parole unless the authority can be later convinced to reconsider the minimum term and reduce it.

The state Supreme Court ruled in 2001 that HPA had the authority to set minimum terms equal to the maximums terms set by the courts.

State Rep. Gregg Takayama, who introduced the resolution creating the task force, said it seemed to him the current system might be a duplication of effort.

“It seems like we probably should take a look at whether that’s the best way to do things, or whether we should give the minimum sentencing to one or the other,” the courts or the parole board, he said.

Takayama said he does not know exactly why Hawaii adopted this sentencing scheme, which has been in place for more than 40 years. He said corrections officials don’t seem to know either, and said that is “another reason for having a task force look at this.”

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