Hawaii’s World

By A.A. Smyser

Thursday, September 18, 1997

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How Hawaii courts
are soft on crime

IS Hawaii soft on crime? You can safely bet your life on it. You'll be able to back up your bet with tales Honolulu Prosecutor Peter Carlisle plans to tell again and again between now and through next year's legislative session.

Maybe a few re-election-conscious legislators will listen. In the 1998 election campaign, they may even feel hot breath on their shoulders if they don't, because the public is fed up with crime. It is fed up particularly with repeat offenders going free, something more likely to happen in our state courts than in our federal ones.

Carlisle tells it simply. He contrasts tough, even-handed justice administered in our federal courts on one side of Punchbowl Street with the fuzzy, offender-protective processes in the state circuit courts across the street.

The two judicial systems operate within a football field's length of each other but with a world of difference. Items:

The state refuses to allow police to approach arriving passengers at Honolulu Airport, ask to talk to them, then prosecute if this leads to a drug find. Federal courts allow it and have sent offenders to prison.

If a suspected criminal is about to be incarcerated, federal officials can subject him or her to a genuine inventory search. Thus a woman's purse containing a gun, packets that look like crack cocaine and cash can be used in the case against her. The Honolulu police log on the same case would read "woman's purse, contents unknown" because no search is permitted.

If a defendant chooses to testify on his own behalf, federal attorneys can confront him with evidence of prior convictions. State prosecutors can't.

In sex-abuse cases, federal courts allow evidence of prior sexual abuse by the accused. Not so in Hawaii courts, where the hearing is reduced to "a one-on-one swearing contest." Carlisle can cite chapter and verse on state acquittals that would have been convictions in federal court.

Sentencing in federal court is uniform and sure, determined by rigid guidelines. There are no parole boards to reduce federal sentences. In state courts defense attorneys shop for the most lenient judges. They may plea bargain only if the case is assigned to these judges. This, they contend, will save the state the expense of a trial. Yes, but it also defeats fair sentencing.

Carlisle won a life sentence for a criminal in state court because the judge deemed him a danger to the community. The Parole Board freed him in a year. Thus, says Carlisle, there is no truth in sentencing in the state courts. A federal criminal sentence means something. One in the state courts doesn't.

"Local law enforcement officers and prosecutors look at the federal system with the same yearnings that the sailors in 'South Pacific' felt for Bali Hai," Carlisle says. Maybe the public should, too.

CARLISLE has a further gripe about the lack of uniformity of crime definitions among the 50 states, as compared to federal standards.

All across America, he says, an offside offense in football brings a five-yard penalty -- "the rule is simple and uniform." States have no such commonality. Rules, some of them freakish, vary from state to state and even from courthouse to nearby courthouse.

Carlisle seems to accept that Nevada permits prostitution and gambling, which he hopes we never will. But why, he asks, can't we drive for uniformity in the criminal law and its procedures for offenses such as burglary, theft, murder, robbery, sexual assault, hard drugs and other major crimes?