Carlisle pushes for
stronger crystal
meth lawsThe prosecutor wants changes
in wiretap and sentencing rules
Continuing his crusade against crystal methamphetamine, city Prosecutor Peter Carlisle told a task force of legislators yesterday that they need to change several state laws so prosecutors can crack down harder on "ice" dealers.
"Ice is a bad problem that's getting worse, and we need help to fight it," Carlisle told the House and Senate Joint Committee on the Ice Crisis, which is working to define a legislative package for next session that will address the crystal meth problem.
Carlisle, along with other law enforcement experts, say that when it comes to chasing and sentencing drug offenders, state laws need to be tougher and perhaps more in line with what can be done under federal laws.
Carlisle would like to see legislative changes to laws that include those governing wiretapping, drug testing and stronger sentencing for repeat offenders.
Sen. Colleen Hanabusa (D, Nanakuli-Makaha), a co-chairwoman of the joint committee, noted that "Hawaii Legislature and Judiciary have interpreted individual privacy rights under the Hawaii Constitution in a way that gives the individual greater privacy rights than under the federal system."
Hanabusa, an attorney, said legislators "need to balance issues of individual privacy and look at the wiretap law without making major constitutional changes."
"Ice is a critical issue for all of us, but we still don't want to make a knee-jerk reaction to it (legislatively)," Hanabusa said.
Under federal procedures it is easier to get a wiretap. State prosecutors seeking a wiretap must present evidence in a closed-door hearing in which an attorney known as a "devil's advocate" is assigned to represent the privacy rights of the person targeted for the tap. The targeted person is not told of the hearing, but law enforcement officers say the suspects often learn about it because of the long legal process.
Carlisle said getting a state wiretap is a rare event because it is so difficult to get permission.
"I haven't heard of any other state with a devil's advocate system like ours," said Carlisle. "We need to go to a federal system. ... It's still a long process (to get a federal wiretap), and there are safeguards in the system (aimed at protecting privacy rights)."
In an interview, U.S. Attorney Edward Kubo said, "Hawaii is way behind the curve in terms of having the proper tools to fight the importation of this deadly drug."
Kubo, who did not attend the legislative hearing, said Hawaii's wiretap laws prevent state law enforcement from using evidence gained in federal wiretaps.
He said that when federal agents get wiretap evidence for crimes that do not come under federal jurisdiction but can be prosecuted under state laws, state prosecutors are not allowed to use the federal wiretap evidence in court.
"We would love to hand over our solid ice cases which do not fall under federal guidelines to the state for prosecution," said Kubo.
He said that each year, about 70 to 130 ice suspects who could be prosecuted under state laws are not charged because the federal evidence cannot be used.
"This amounts to a state immunity law prohibiting the prosecution of drug dealers," Kubo said.
Carlisle also said he wants stiffer sentencing for repeat offenders.
"Why are repeat offenders and meth addicts out walking among us? The answer is the laws we have here," Carlisle told the committee.
Carlisle also wants to repeal a law, referred to as Act 161, that makes probation mandatory in certain cases of first-time drug offenders. He said the law takes away the discretion of the court in sentencing.
Carlisle also reiterated his support of drug testing in schools, saying it is key to intervening early with treatment. He said the testing should not be used as criminal evidence.
Hanabusa noted that drug testing also raises privacy issues.
Carlisle acknowledged that the testing would probably have to be voluntary. Hanabusa said that if the testing is voluntary, it may not detect student users.
"Yes, there's a public outcry that ice is a big problem that we need to deal with," she said. "At the same time, we need to be responsible in enacting, legislating and balancing all of these interests. This is a very complex problem."