More aggressive minimum sentences coincide with severe overcrowding and deteriorating prison conditions.

When criminal defense attorney Doris Lum advises her clients, she tries to be as realistic as possible.

That means letting them know that even if the judge, the prosecutor and her client agree on a minimum sentence, there’s no guarantee the parole board will follow that recommendation.

Lum, who spent 14 years in the public defender’s office, had one client plead down to second-degree robbery where the state recommended a four year minimum sentence. When Lum’s client went before the Hawaii Paroling Authority he was given an eight year minimum sentence, double what he might have expected coming out of trial.

“If you’ve been to a minimum hearing, it’s like being in front of a firing squad,” Lum said.

Lum’s experience is an example of a trend toward more aggressive minimum sentences set by the Hawaii Paroling Authority since 2017. Nobody could explain why the increase is happening, but it coincides with a change in the composition of the panel under the former governor.

Hawaii Community Correctional Center located in Hilo.
The Hawaii Community Correctional Center and other jails and prisons across the state suffer from overcrowding. (Cory Lum/Civil Beat/2022)

Critics say that complicates efforts to make plea deals and lengthens prison stays at a time when many activists and legislators are pushing to move toward a system focused on restorative justice.

More Prison Time

In the last six years, of the 10 most common offenses, nine have seen their average minimum sentence increase, a Civil Beat analysis has found. Several offenses have seen spikes in minimums of more than 20%, while second-degree assault minimums more than doubled.

The minimum sentence for first-degree burglary has gone from just under four years to over six years, meaning inmates convicted in 2022 will spend nearly two more years in prison before they’re eligible for parole than their 2017 counterparts.

Hawaii is the only state that assigns a paroling authority the responsibility for setting minimum sentences for felonies, which determine how long before prisoners are eligible for parole.

Inmates can be grilled on their drug and life habits before getting slapped with a minimum sentence well beyond what they might have expected.

“The chance for parole is about hope,” said Ben Lowenthal, Maui deputy public defender. “If a person is given an opportunity to be paroled, there’s hope. A long minimum gets rid of that.”

The longer minimums also come as severe overcrowding and dilapidated conditions in jails and prisons across the state raise have raised red flags from activists and legislators.

In a July Department of Public Safety newsletter, DPS Director Tommy Johnson said he plans to "shift from what some may see as a punitive incarceration model to a model focused on treatment, education, and successful re-entry."

But the trend toward longer minimum sentences is an "insight into the fact that rather than becoming more therapeutic, the system's becoming more punitive," said former Hawaii Associate Supreme Court Justice Michael Wilson.

Several studies have found that lengthy prison stays have little effect on deterring crime and can actually increase the chances that inmates may commit a crime after their release.

Minimum sentences also determine when prisoners can access rehabilitative programs like drug treatment. These programs are often required for prisoners to be paroled and beyond that, are considered important steps in successful reentry.

But priority for these programs is determined by the time until parole eligibility, meaning prisoners with longer minimums can languish in their cells for years without access to needed programming.

'Justice Should Be Done In The Light'

The sentencing guidelines on the HPA website lay out a set of criteria but specify that the authority may "deviate from the guidelines" with a written justification to do so.

DPS, which encompasses the paroling authority, declined to answer questions about changes in sentencing or provide data on the criteria used, saying in an email that justifications are done on a case-by-case basis. It also declined to provide data on the criteria used in sentencing, saying that was "not in a readily available format."

Deputy public defender Jon Ikenaga said the current parole board has made "it clear that they don't feel bound at all by the trial court decision," making it hard to advise clients on whether to take a plea deal or go to trial.

"We just have to take a closer look at whether or not the minimum sentencing process of the Hawaiian Paroling Authority is beneficial to public safety."

Correctional System Oversight Commission Chair Mark Patterson

Part of the struggle to understand parole board decisions comes from a lack of available data.

Data for offense-level minimum terms is available in annual reports posted by the HPA, but there is no information on basic characteristics that can impact sentencing such as prior convictions or level of offense. Data on demographics like race or gender also is not available.

Activists like Hawaii Innocence Project Director Ken Lawson say that other state sentencing commissions track data to ensure that sentencing is not biased.

"Justice should be done in the light," said Lawson. "It should not be done in the dark with numbers that are not available to the public. The parole board is doing justice in the dark and it really is troubling."

The need for data takes on greater significance considering the influence that the parole board has on the criminal justice system.

A report by the The Robina Institute of Criminal Law and Criminal Justice, a nonpartisan research institute at the University of Minnesota Law School, found that the the parole board in Hawaii is one of the most powerful in the country.

Because minimum sentences are left up to the discretion of the parole board, any patterns or deviations in sentencing are the result of voluntary decision-making on the part of the board members. Other states have moved away from minimum sentencing, or have minimums set by trial judges who retain a level of judicial independence.

The Hawaii Paroling Authority consists of five members who are appointed by the governor and confirmed by the state Senate.

None of the four board members from Hawaii Paroling Authority Chairman Fred Hyun's first year in 2016 remained on the board in fiscal year 2022. The current board is composed of Hyun, Clayton Hee, Gene Demello Jr., Milton Kotsubo and Carol Matayoshi, who were all appointed by former Gov. David Ige.

The swings in minimum sentencing that can come with an overhauled parole board have been a part of the system for years.

As far back as 2000, a study by the State Attorney General's office found that "that the current HPA in early 2000 was setting significantly higher minimum terms than had been set by the previous board a few years ago." Average minimum sentences overall increased from roughly 2.7 years to 3.3 years with the new parole board in 2000.

Ikenaga said in his time at the public defender's office this is not the harshest board he's appeared under, but the lack of predictability makes it difficult.

Overall, the minimum handed out for any offense has gone up roughly 22% since fiscal year 2017.

Change Could Be Coming

The Hawaii Correctional System Oversight Commission, the body tasked with moving Hawaii’s prisons and jails to a “rehabilitative and therapeutic model” of corrections, is bringing added scrutiny to the Hawaii Paroling Authority.

Commission Chair Mark Patterson said "public confidence is down" in the parole board. "There's a lack of transparency," Patterson said. "Who are these individuals that were given this power of decision-making?"

This year, legislators passed House Concurrent Resolution 23, creating a task force to study if HPA should have the responsibility of setting minimum terms.

On Sept. 12, the task force, which is also chaired by Patterson, will be meeting to discuss the role of the parole board in minimum sentencing.

"We just have to take a closer look at whether or not the minimum sentencing process of the Hawaiian Paroling Authority is beneficial to public safety," Patterson said.

Help power our public service journalism

As a local newsroom, Civil Beat has a unique public service role in times of crisis.

That’s why we’re committed to a paywall-free website and subscription-free content, so we can get vital information out to everyone, from all communities.

We are deploying a significant amount of our resources to covering the Maui fires, and your support ensures that we can pivot when these types of emergencies arise.

Make a gift to Civil Beat today and help power our nonprofit newsroom.

About the Author