It's called commutation.
Based on new information, a convict's sentence is reduced -- possibly from life without parole to freedom.
It's rare, but it happens, and it gives wronged or reformed inmates ...
A look at the lifers in Hawaii
One commutation: the Massie case
100-year term sought for killer
Tomorrow: A freed inmate's struggle
By Debra Barayuga
Eighteen years ago, Sitoe Liuafi was sentenced to life without parole for the "horrible" murder of another Hawaii State Prison inmate.
He may still walk out of prison.
The Hawaii Paroling Authority has prepared an application and is expected to make a recommendation on whether the governor should commute Liuafi's sentence to life with the possibility of parole.
His brother, Liuafi Liuafi, faces the same dispensation.
A commutation is a reduction in punishment exercised by the governor and is usually sought for inmates serving life without parole.
Under Hawaii law, a defendant serving a life term without parole receives an automatic review by the governor after serving 20 years. The Liuafi brothers were convicted 18 years ago, but were credited for time served while awaiting trial.
The governor has inherent power and total discretion under the Constitution to grant commutations and pardons, said Honolulu criminal attorney Earle Partington. The Legislature can't alter that power even if it wants to.
The power to commute or pardon -- inherited from England -- has survived this long because of its usefulness, he said.
Commutations are a good thing, Partington said, because they factor in the possibility that people can reform in prison.
"It prevents the (criminal justice) system from being too harsh because of the inflexibility built into the system," he said.
Legal observers say commutations are extremely rare and highly unlikely for defendants such as multiple murderer Byran Uyesugi. Four inmates serving life without parole who have come up for commutation in the last 10 years have been denied.
But commutations are possible, for example, if the inmate has developed an "extraordinary" record in prison, said Patrick Cullen, head of the attorney general's investigations division that reviews the applications forwarded to them by the parole board.
Inmates must show they are deserving of a reduced sentence. They must exhibit some type of exemplary behavior leading up to the time of the application or be free of disciplinary actions, Cullen said.
One of the foremost factors considered is the likelihood of the inmate re-offending and posing a danger to society if released early, he said. Each application is treated on a case-by-case basis.
Sitoe Liuafi was 31 years old when he and five fellow inmates were accused in the June 6, 1980, stabbing and gang-related beating death of fellow inmate Milton Nihipali.
Nihipali was attacked in the prison recreation yard by a gang of prisoners using pipes, knives, sticks and the cast iron base of a microphone stand, and his throat was slit. Another inmate, Clarence Freitas III, also was beaten in the melee, but survived.
Convicted of first-degree murder in Nihipali's death were Sitoe Liuafi; his older brother, Liuafi Liuafi Jr., 32; Lepo T. Utu, 22, who later changed his name to Lepo Taliese; Sopo Faalafua, 23; and Fiatau Mika, 25.
All five were sentenced to life in prison without parole - the stiffest sentence possible. Mel Agena, the deputy who prosecuted five of the inmates and is now in private practice, said the Nihipali beating was the worst he had seen in his life as a prosecutor.
Photographs of Nihipali after the beating were "indescribable," Agena recalled. "It was horrible."
The beating allegedly stemmed from the shooting death of inmate Francis Scott Key just the day before. Police described Key's death as being part of an ongoing feud between prison factions. Nihipali was later found responsible for Key's murder.
Victim's kin gives blessingWhile conditions have improved since then, the prison at that time was loosely run, with inmates allegedly running the facility, said deputy prosecutor Kevin Takata, who later supported a commutation for Faalafua.
Utu and Faalafua were granted commutations by then-Gov. John Waihee in November 1994 based on new information that they were not in the area of the beating when it happened.
Despite the brutality of Nihipali's beating, Agena said he has no problems with the commutation process as long as the inmate has served the statutory requirement of 20 years.
He has no knowledge of Sitoe Liuafi's conduct in prison for the past 20 years, but said, "if he's turned his life around and the Hawaii Paroling Authority recommends it, I have no objections."
One member of the Nihipali family contacted recently said they laid their brother to rest 20 years ago and bear no bitterness toward those who served time for his death.
"God bless them," said Gina Nihipali, one of Milton Nihipali's 10 siblings, when she heard the Liuafis were being considered for a reduction in their sentences.
Twenty years is a long time to spend in jail, she said. "I pray they go on with their lives, too."
She blames a "corrupt" prison system and politics, not the inmates, for her brother's death. The guards, not inmates, ran the facility and should have been investigated, she said.
Public Safety Director Ted Sakai, who joined the department just a year before the Nihipali murder, declined to respond to Gina Nihipali's characterization of the prison system 20 years ago.
Despite the overcrowding, staff at the prisons today work hard to ensure security is enforced, he said. "We have sound security procedures and we try very hard to keep contraband out."
Sakai said Hawaii's prisons now are run by a professional group of wardens. Inmates are classified into different facilities and housing units. Prison staff conduct regular searches of cells, visitors and incoming parcels to ensure contraband doesn't get in.
Recently, the prisons purchased portable metal detectors to search inmates to ensure they don't have any metal tools hidden on their bodies when they move from one area in the prison to another. Inmates also are drug-tested regularly.
"Inmates will try constantly, so we make sure procedures are enforced all the time," Sakai said.
The Liuafi brothers and Mika, who will face a commutation review in the near future, are all currently being housed at the Florence Correctional Center in Arizona.
Respectful and well-behavedWarden Pablo Sedillo said their behavior since they arrived at the facility in February has been "excellent."
"They are very respectful and work very hard."
The Liuafi brothers work in the prison kitchen five days a week and do outstanding work, said Gary Churich, programs manager. Sitoe is a cook and Liuafi is a prep cook. Both make $2.75 per day.
Mika makes $2.25 per day as a janitor, stripping floors and waxing. Working in maintenance and the kitchen are the top jobs at Florence, Churich said.
All three like to work, and keep their living conditions clean. During a recent reevaluation, they each received a 25-cent pay raise, Churich said. "They're real courteous and all three have done outstanding jobs in work performance and behavior."
All three have been participating in rehabilitative programs. Mika wants to implement a "Scared Straight" program, which would bring at-risk adolescents to the prison so they can see up close what happens if they choose a life of crime, and hear inmates talk about why the youths shouldn't want to end up in prison.
City Prosecutor Peter Carlisle said his office has no input into the commutation review process, but wishes it did.
Gov. Ben Cayetano has yet to commute an inmate's sentence since he took office in 1994. But he has pardoned 82 inmates, including former attorney Tom Foley.
Foley was sentenced to 10 years for driving while drunk, causing an accident that killed a man and injured the man's wife. Foley served most of a four-year minimum term before he was pardoned.
The governor, in pardoning Foley, cited his exemplary participation in the work furlough program, acceptance of responsibility for his actions and his "model" conduct in prison.
Carlisle said an inmate's record in prison should not be the qualifier to be released early.
"Your conduct in prison may or may not be a reflection of how you behave outside," he said.
He cites the case of convicted murderer Sopo Faalafua as an ironic example. After Faalafua's sentence was reduced and he was released on parole for model behavior in prison, he attempted to "strong-arm" a Waianae drug operation, Carlisle said.
Unknown to Faalafua, the drug house was "armed to the absolute gills" with surveillance cameras, Carlisle said. "He walked into a dead zone and got himself killed." It was March 1995, less than a year after Faalafua's release from prison.
Attorney Dan Foley, who represented Sopo Faalafua in commutation proceedings (and is no relation to Tom Foley) said the question should not be why Faalafua's sentence was commuted, but whether he should have been paroled.
"He wouldn't have been paroled if he was a danger," Foley said.
"If you put someone in Halawa for 14 years, you can learn some bad habits," Foley said. "Apparently he had some before he went in and when he came out. It's really unfortunate."
Commutation: A change in a sentence or punishment to one less severe.
Glossary of terms
Pardon: A release from further punishment (i.e. prison, probation, or parole) for a crime. Crime is not erased from a defendant's criminal record, but certain rights, such as voting or running for political office, are reinstated.
Parole: The release of an inmate whose sentence has not expired, on condition of future good behavior. Person remains under the supervision of the parole board.
Probation: A sentence requiring a period of court supervision, ranging from six months for a petty misdemeanor to 10 years for a class A felony. Defendant must abide by conditions imposed by the court, including regular reporting to a probation officer.
The difference between probation and the three other terms above is that probation is a sentence or disposition for a newly convicted person. Commutation, parole and pardons are dispositions for inmates already serving sentences.
Commuting a sentenceHow it works:
1) After an inmate has served 20 years of a life term, the Hawaii Paroling Authority automatically prepares an application for commutation. The board makes a recommendation on whether his sentence should be reduced based on the nature of the offense and the inmate's conduct outside and inside prison.
2) The director of the Department of Public Safety reviews and concurs or disagrees with the parole board's recommendation.
3) The attorney general's office prepares its own report and also makes its own recommendation.
4) The recommendations are forwarded to the governor for a decision. The process can take about six months.
5) If the governor grants a reduction, the inmate goes before the parole board, which sets a minimum term to be served before being eligible for parole.
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One of the most notable examples of commutation power was exercised by Territorial Gov. Lawrence M. Judd in a case that stemmed from the infamous 1931 Thalia Massie rape.
A local man slain,
his killers freed
Four local men were accused and later acquitted of raping and beating Massie, wife of a Navy lieutenant.
A month later on Jan. 8, 1932, the body of Joseph Kahahawai, one of the four men cleared in the rape, was found in the trunk of a car stopped for speeding on Waialae Avenue.
In the car was Thalia Massie's husband, Lt. Thomas Massie, her mother, Grace Fortescue, and another man. The three, including another man, were tried for Kahahawai's murder and convicted of the lesser charge of manslaughter, punishable by 10 years imprisonment.
Immediately after their sentencing, the defendants crossed the street to the office of Gov. Judd who, pressured by threats to the territory's self-governance and amid calls for pardons, commuted their 10-year sentences to one hour.
Debra Barayuga, Star-Bulletin
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About three dozen Hawaii inmates are serving sentences of life without parole:
pay for their
Byran Uyesugi: Shot to death seven Xerox coworkers in November 1999 -- Hawaii's worst multiple slaying.
Albert Batalona: Convicted of first-degree attempted murder for shooting at a police officer in July 1999 after robbing the American Savings Bank in Kahala.
Darwin Ramirez: Youngest inmate serving life without parole. Then 17, he was the alleged ringleader of a group of boys who beat an undercover officer and an informant with baseball bats and robbed them in September 1998 in a botched sting.
Peter Moses: Shot a police officer at Makapuu Point in September 1998. The officer survived.
Daniel Kosi: Shot Eric Vinge to death in August 1997 and 12 days later, fatally stabbed 17-year-old hostage Aisha Tolentino during a standoff with police. Also convicted of trying to suffocate a witness to the Vinge shooting.
Mitchell Peralto and his wife, Monica Alves Peralto: Beat and suffocated Alves Peralto's 23-year-old cousin in 1997. Witnesses said the couple taped Kimberly Washington-Cohen's mouth shut so tightly her face was deformed, then tied a plastic bag over her head before taping her into a blanket.
Norman Montira: Shot at three people, fatally wounding one, at a family barbecue in April 1997.
Freedus Wilton: Slashed a Utah woman and her two sons after breaking into their Kihei vacation apartment in January 1997.
Mark Dunse: Killed 43-year-old musician Johnnie May Nuuhiwa, who was found nude, her head battered with a rock and wrapped with a towel with a stone in her mouth near a Kona beach in January 1996.
Dat Minh Tran: Convicted of attempted murder in a October 1995 drive-by shooting in Waikiki that wounded one of three men riding in a truckbed.
Orlando Ganal: Convicted in August 1995 of shooting his wife's parents to death, wounding his wife and son and firebombing a Kailua home, killing a man and his two children.
Gordon Cordeiro: Shot to death his high-school classmate in an August 1994 drug deal and tried to hire three inmates to kill a witness.
Fred E. Hammond: Stabbed an inmate in 1992 and attempted to stab another in 1994.
Juan Velazquez: Killed two Kahuku brothers in July 1991 at the Waikiki Jack-in-the-Box.
David Kwon: Strangled fellow Halawa inmate Llewellyn Kupihea in May 1990.
Wendell Pichay: Attempted to shoot at eight police officers and two civilians in May 1990. Killed a Marine sentry at Pearl Harbor in March 1990.
Efren Renon: Convicted of second-degree murder in July 1990 and first-degree attempted murder in September 1990.
Michael R. Hughes: Ambushed two men with a shotgun in Kihei, killing one, in June 1989.
Lawrence Dedrick: Killed two people in Hilo in July 1989.
Clyde Pinero: Fatally shot police officer David Ronk with the officer's service handgun in June 1989. First to be convicted under a 1987 law that makes killing a police officer punishable by life without parole.
Catherine Samuel: Stabbed ex-lover Agnes Spears to death in prison on New Year's Eve 1989.
Lael Samonte: Attempted to kill a police officer in a 1988 standoff with police.
Tony Alan Williams: Murdered police officer Troy Barboza in 1987. Barboza was to testify against him in a minor drug deal.
Steven Lee Fisher: Killed a fellow Kulani inmate in July 1980 with the blunt end of an ax while the prisoner was asleep.
Liuafi Liuafi and Sitoe Liuafi: Beat fellow inmate Milton Nihipali to death in June 1980 in a prison yard.
Fiatau Mika: First person to be sentenced under state law calling for life without parole for committing a murder in prison. Convicted in the June 1980 slaying of fellow prison inmate Milton Nihipali.
Donald Lester: First person to be convicted under the murder-for-hire statute. Found guilty in February 1979 for hiring seven people to kill his wife for $7,000. Commutation denied.
Roy Apao: Beat witness Faafouina Tualolo to death with a bumper jack in July 1974. Tualolo was to testify against Apao, who was later convicted of killing a neighbor. Commutation denied.
William K. Medeiros: In December 1970, he murdered his girlfriend who was to testify she had witnessed him kill another man. Commutation denied.
Norman Santiago: Shot a reserve policeman to death in October 1969.
George Shimabuku: Sentenced to two life sentences without parole for murdering fellow inmate Ben Aipa in August 1967 and shooting another man to death while on parole for manslaughter in November 1963.
Kenneth Lono and Alfred Tai: Shot and killed two police officers in December 1963. Commutation denied to Lono.
Debra Barayuga Star-Bulletin