State Senator Sharon Moriwaki, along with several other legislators, has introduced a bill to ramp up criminal punishment in Hawaii. Senate Bill 2347 would reclassify misdemeanor assault as a class C felony upon a third conviction for the offense.

Moriwaki’s bill aims to address genuine concern over crime in Hawaii, including “catch and release” policies. However, this misguided idea will only double down on a punitive approach that we long ago learned is costly, ineffective, and counterproductive.

Those defending the bill might point to recent events, including Sebastian Mahkwan’s horrific attack on Danying Zhang, a teacher at Maryknoll School. Mahkwan threw an unidentified chemical on Zhang, causing severe burns and disfigurement.

The unprovoked attack was terrifying enough, but it was even more alarming considering that Mahkwan has a long criminal history and was released on bail for charges related to a previous assault only a day before.

Such cases elicit outrage among the public, which is compounded when police bemoan repeatedly arresting the same individuals only to see them on the streets shortly after. No doubt, our criminal justice system doesn’t efficiently deliver public safety.

The system often fails to hold accountable those who pose a threat to public safety, while many who pose no such threat languish in our jails and prisons. But SB 2347 only increases punishment, it does nothing to enhance real accountability or rehabilitation. Thus, it offers little potential to mitigate crime but would exacerbate other problems including prison overcrowding, violence, and offender recidivism.

Moriwaki’s bill is essentially a habitual offender law. These bills have been around for decades.

The most well-known variant is the Three Strikes law, which requires a person who has been convicted of a third offense to serve a mandatory 25 years to life sentence in prison. Three strikes laws are notorious for their (often arbitrary) punitiveness. One oft-cited example involves a man sentenced to 25 years for stealing a slice of pizza from a child.

In the case of SB 2347, the crimes in question are relatively minor. Misdemeanor assault is a far cry from cases like that of Mahkwan, which was charged as first-degree assault and attempted murder.

Mixed Evidence For Deterrence

Those supporting habitual offender laws argue that they are a tough deterrent policy. Moriwaki cited this rationale regarding her bill, but it’s a dubious argument.

There’s mixed evidence for deterrence. Studies find that increasing the severity of punishments has at best a modest deterrent effect, and the harshest policies tend to be the least effective.

Furthermore, research on mass incarceration in general indicates that it made only a minimal contribution to the historic crime decreases documented across the U.S. since the early 1990s. Any deterrent effect must also be weighed against the costs of deterrent-based policies, economic and social. They’re not effective justice policy, though they make for good political theater.

We must also consider that under Moriwaki’s bill “the prosecution shall not be required to prove any state of mind with respect to the person’s status as a habitual violent misdemeanor offender.”

Effectively, this means being of sound mind is inconsequential when someone commits an offense. This bill creates the pretext for long-term incarceration of houseless people who experience chronic mental illness, extracting vulnerable people from their communities rather than providing them assistance.

There are promising alternatives though, some of which are already being implemented locally. The Hawaii prison system is, in theory, being overhauled into a more rehabilitative framework to provide offenders with the resources, support, and skills they need to desist from crime.

This includes utilizing restorative justice practices, which, informed by indigenous notions of justice, are more effective than traditional criminal justice, as studies suggest lower recidivism with the use of restorative justice.

Restorative justice repairs harms between people and communities, implementing accountability rather than simply punishing. Moreover, promising programs like the Crisis Outreach Response and Engagement program and drop-off sites need to be fully funded, implemented with care, and expanded. Legislation to these ends is being considered this session.

For example, House Bill 1831 sponsored by Rep. Della Au Belatti would establish a behavioral health crisis center pilot program in the Department of Health to redirect persons experiencing a mental health crisis who are involved with, or at risk for involvement with, the criminal justice system to the appropriate health care system and services.

Hawaii has tried the mass incarceration approach exemplified by habitual offender laws for decades. These punitive shifts have had dramatic consequences; in just four decades Hawaii’s combined jail and prison population increased 670%, and the incarceration rate increased 400%.

More punitive approaches to minor offenses, as proposed by Senator Moriwaki, will only exacerbate the many challenges faced by Hawaii’s criminal justice system.