“I resent the comparison to places like Missouri or Maryland where the policing practices are very different from Honolulu. I don’t think that we have a George Floyd problem in Hawai’i.”

These were the words of Honolulu Prosecutor Daniel Hugo during a recent hearing at the Hawaiʻi Legislature on House Bill 128.

That sounds nice, if you take the prosecutor’s word for it.

Unfortunately, the truth is that Native Hawaiians, Pacific Islanders, and Black Americans are disproportionately subjected to use of force in Hawaiʻi. Recent reporting by the Office of Hawaiian Affairs has confirmed that our criminal justice system has disproportionate effects on groups like Native Hawaiians.

The recent shooting of Macayla Duponte by Maui Police officers only demonstrates the reckless “shoot first” mindset that makes mental health intervention, diversion services, and true justice difficult to obtain.

The comments made by the Honolulu prosecutor are not only incorrect and callous, they are also symptomatic of a larger issue. Police and prosecutors typically oppose any reform that would allow establish basic standards for how they can treat the public, dodging transparency and accountability. Instead, on matters of justice they would like you to take their word for it, even when they are wrong.

HB 128 was deferred by the Senate Public Safety and Military Affairs Committee.

Flood Of Litigation? No

The bill was simple. For suspected petty misdemeanors and violations, it would have required officers seeking to make a warrantless arrest to enter on the record the reason why they believe the arrest was justified, making a selection among four reasons including “must be detained to prevent bodily injury to that person or another person.”

Let’s be clear: Officers already need probable cause to make arrests. This bill would have placed basic requirements for officers to provide reasoning for their actions. It did not, at all, constrain the ability of officers to arrest individuals where probable cause exists and an individual posed a flight risk or danger to others.

The opposition offered by some law enforcement and prosecutors is that passing HB 128 would bring a flood of litigation because procedural justice may be violated. The prosecutor warned that misplaced paperwork or copy-machine malfunctions could lead to lawsuits on procedural grounds.

Perhaps a primer in what procedural justice might be necessary.

Why Does Procedure Matter?

Procedural justice is not just paperwork, crossing t’s and dotting i’s. Procedural justice is about making sure justice is done properly, and that the process by which people are evaluated under the law is fair. It is key to giving us confidence that our systems are legitimate, and our liberty has been taken seriously.

If we don’t know how evidence or facts are obtained, for instance, it is hard to trust that evidence in a court of law. Being treated with dignity and respect, being evaluated by a neutral decision maker, and understanding the reasoning for why someone is being arrested is fundamental to a functioning society.

Law enforcement officers should be able to explain why they an arrest was necessary. If probable cause and reasons for detention exist, officers should have nothing to fear from simply noting them.

They should also do this properly. It matters if paperwork is misplaced or reasons are unrecorded, because these directly implicate people’s freedom. Selecting why somebody is being detained from a list of four factors is a low hurdle to clear and provides clarity as to why it is necessary to restrict an individual’s liberty.

Lawmakers should embrace justice, rather than bow to the desire for unfettered discretion by law enforcement. HB 128 would not have allowed people suspected of violations or petty misdemeanors to just walk free. Instead, it would have asked our officers to conform to professional standards by articulating the reasons for an arrest — the bare minimum.

Unless the public and our lawmakers are willing to question our law enforcement and place safeguards on their use of force, I wouldn’t be so sure that Hawai’i is not a “George Floyd state.”

The standard we hold ourselves to must be higher, one that does not dismiss justice (procedural or not) as merely an issue of paperwork. No one should be above the law.