[ OUR OPINION ]
Give judges discretion
in deciding drug
offenders’ fateLEGISLATIVE intentions appear to have gone awry last year in a change in sentencing laws that call for probation and treatment for first-time, nonviolent drug offenders. The change may conflict in some cases with other state laws that require minimum prison terms for people convicted repeatedly for crimes that did not involve drugs, resulting in inconsistent sentences and appeals as judges struggle to integrate the differences.
THE ISSUE
The state's drug reform law that requires probation and treatment for first-time offenders sometimes conflicts with mandatory sentencing provisions.
An appropriate correction would be to allow judicial discretion in balancing the objective to provide drug treatment instead of imprisonment while weeding out recidivists who would use the new drug reform law simply to avoid another prison term.
The state Legislature approved the change in 2002 to reflect a progressive approach to drug offenses and to cut the state's prison population. The idea was to help offenders kick their habits instead of putting them behind bars and eventually having them return to crime after their release. The law was intended to apply to those who had committed nonviolent crimes, such as auto theft or burglary, to pay for illegal drugs.
However, in the final draft of the bill, a portion that denied treatment and probation for those with previous convictions was eliminated. Law enforcement officials say this allows repeat offenders a way out of serving time and should be curtailed, and that it conflicts with mandated minimum prison sentences for repeat offenders.
Judges acknowledge that the minimum sentence requirements and treatment-probation provision do not conform, but some believe that since legislators removed the repeat offender exemption, it appears lawmakers intended that the new law should apply instead.
The result is that some drug offenders with felony records are being allowed probation and treatment while others aren't. Appeals to the Hawaii Supreme Court have ensued in 10 cases as both prosecutors and defense attorneys point to the inconsistencies.
Another consequence is a drop in cases transferred to Drug Court as more offenders are opting for probation-treatment rather than undergo the Drug Court's more stringent two-year program. Kauai Drug Court coordinator Warren Kitaoka said some defendants and their attorneys have been "shopping around" between the two programs, which is acceptable if the goal is to determine which might better help the offender stay straight.
As a remedy, legislators may choose to restore the exemption for repeat offenders or redefine mandatory minimum sentencing. The better way may be to allow judges discretion in imposing a sentence or treatment and probation, based not only on the conviction and the offense, but on the defendant's character and past conduct. In other words, allow judges to be judges.
