Drug law
sows confusion

A statute prohibiting jail
for "user" possession
conflicts with another
involving repeat offenses


Wednesday, Dec. 3, 2003

>> A story on Page A6 Monday incorrectly identified Big Island Drug Court Coordinator Warren Kitaoka as the coordinator for Kauai. Also, statements attributed to Kitaoka were made by Kauai Drug Court Coordinator Alton Amimoto.

The Honolulu Star-Bulletin strives to make its news report fair and accurate. If you have a question or comment about news coverage, call Editor Frank Bridgewater at 529-4791 or email him at

Hawaii law enforcement officials want state lawmakers to tighten up a new drug reform law that requires probation and treatment for first-time drug offenders.

They say judges have been following the law, granting probation to convicts with felony records.

The Legislature approved a change to state sentencing laws in 2002 as a way of reducing the state's prison population.

The measure was modeled after drug reform laws in Arizona and California. Hawaii law mandates probation and drug treatment for nonviolent offenders found guilty of possessing small, user amounts of drugs, including crystal methamphetamine, or "ice." Previously, people convicted of possessing any amount of ice were required to serve a mandatory prison term of at least 30 days.

A proposal to limit the law is part of a package of bills backed by the Hawaii Law Enforcement Coalition, made up of state, county and federal law enforcement agencies.

House Judiciary Chairman Eric Hamakawa (D, South Hilo-Kurtistown) said the law targets drug addicts who commit crimes to feed their drug habits.

Its purpose: "to make sure that these people get treatment and not just get a prison sentence where they just sit in prison for a length of time and not get any kind of treatment, come out one day still with the problems that they went in with, still with the same illnesses that they went in with," Hamakawa said.

From the time the law took effect July 1, 2002, to the end of October, state judges have sentenced 190 people to probation under the law, according to figures compiled by the state Judiciary's Adult Probation Division.

Seven of those cases are on appeal with the Hawaii Supreme Court because city prosecutors believe judges improperly disregarded sentencing laws that require minimum prison terms for repeat offenders. The state public defender is appealing three cases in which judges did not grant probation to repeat offenders.

"I don't think the law is working the way it was supposed to," said Jay Kimura, Hawaii County prosecutor.

Kimura said the law is undermining the state's drug court program. And, he said, people sentenced to probation under the law are returning to court for resentencing because they later commit other crimes or fail to abide by the conditions of their release.

Kimura believes the law should apply to those defendants who have no prior convictions.

State Attorney General Mark Bennett said: "It should only be applicable to those not convicted of prior felonies. It should not apply to people who have significant records."

Honolulu City Prosecutor Peter Carlisle is calling for the law's repeal.

The cases on appeal show a lack of consistency among judges, as some abide by repeat offender sentencing laws while others apply the new law.

State Circuit Judge Marie Milks acknowledged the conflict between the repeat offender sentencing and drug reform laws when she sentenced Darrell Nakano to probation Nov. 20, 2002.

Nakano pleaded guilty to auto theft and possessing a dangerous drug, drug paraphernalia and burglary tools. He had previous convictions for theft and auto theft. He also had a forgery charge and another auto theft case cleared from his record after completing drug court.

"You could have somebody charged with 40 burglaries in the first degree, which is deemed a property offense, and it doesn't accept the person under the violence provision of Act 161 (the drug reform law). So if you're a smart criminal, just keep drugs in your pocket every time you commit a burglary. So that you get caught, 'Oh, I was using drugs. Therefore Act 161 should apply.' And technically, it does," Milks said when she explained to Nakano why she was sentencing him to probation.

She said the new law supersedes laws that mandate minimum prison terms for repeat offenders and those that also allow for extended prison terms.

But in February, Milks sentenced Faye Smith to five years in prison for her first convictions for promoting a dangerous drug in the third degree and possessing drug paraphernalia. Smith has prior convictions for forgery and theft.

Nakano's and Smith's cases are among the cases on appeal.

When Circuit Judge Karl Sakamoto sentenced two other convicted felons to probation as first-time drug offenders, he also acknowledged the conflict in state sentencing laws. He said he chose to abide by the drug reform law because he felt the Legislature intended the new law to supersede repeat offender sentencing mandates.

Sakamoto noted that legislators removed a proposed exemption for repeat offenders in the drug reform bill. That means the law was intended to grant probation to repeat offenders, the judge said.

Hamakawa said Sakamoto's interpretation is correct.

"Maybe a guy did have a prior conviction. But you know, he still has a problem that needs to be treated. And we want to make sure that this person receives the treatment that he needs to help kick his problem," Hamakawa said.

But he said the Legislature might need to clarify portions of the law.


Chance for probation undercuts
participation in isle Drug Courts

The number of defendants willing to have their cases transferred to Drug Court has gone down since July 2002.

"Yes, it's having an effect, not a huge one. A few, not many, are opting for 161 (the state drug reform law)," said Maui Drug Court Judge Shackley Raffetto.

Oahu Drug Court Judge Marcia Waldorf said, "The intake numbers did drop from July 2002."

Hawaii County Prosecutor Jay Kimura feels the new law has affected the Drug Court program on the Big Island as more people are opting for probation and drug treatment under the drug reform law rather than undergo the Drug Court's stringent two-year program under the supervision of a judge.

"It's taking away from Drug Court. There's no teeth in the sanctions," Kimura said.

People who fail Drug Court face certain jail time, he said.

From the time Kauai's Drug Court program started in August, coordinator Warren Kitaoka said defendants and attorneys have been "shopping around," inquiring about the difficulty of the Drug Court program vs. probation and drug treatment under the drug reform law.

Raffetto said the exact impact the law is having on Maui's Drug Court program is difficult to measure because the program coordinator has had to turn away referrals when enrollment is full. He also said convicts who violated the terms of their probation under the law are transferring to Drug Court.

Waldorf said enrollment in Oahu Drug Court is going back up because of these kinds of cases.

The Drug Court programs on the Big Island and Kauai do not accept clients who have already been convicted and sentenced.


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