Isle ballot measures
shake up legal arena

Civil rights advocates voice
concern at the Hawaii
amendments

Voters in heavily Democratic Hawaii have supported toughening the state's criminal justice system by overturning three specific state Supreme Court rulings that favored accused sex offenders -- a move civil rights advocates say is a troubling sign of things to come.

Debate continues more than a month after voters approved four constitutional amendments dramatically altering the state's criminal justice system. Prosecutors, in effect, went to the people when they could not get what they wanted in the courtroom.

"People will not realize what they have lost until they are falsely accused of something," said Kat Brady, legislative liaison for the American Civil Liberties Union of Hawaii.

Supporters led by the state attorney general say the amendments will better protect the public, help crime victims and improve the judicial process.

The ACLU and defense attorneys contend the measures erode civil rights and are a tool for prosecutors to overturn unpopular high court decisions, shifting the balance of power from the courts to a flurry of ballot initiatives.

Jesselyn McCurdy, an ACLU attorney in Washington, said most states adjust their criminal justice system with statutes, rather than taking it to voters.

Paul Rosenzweig, a senior legal fellow at the Heritage Foundation, said using constitutional amendments to toughen the criminal justice system is "very rare."

One of the amendments allows prosecutors to bring charges directly without presenting evidence to a judge or grand jury. The other three make it easier to punish sex offenders.

"It undercuts the rights of the accused. It strengthens the power of government," said Jon Van Dyke, a University of Hawaii constitutional law professor.

The amendments might have been expected to pass in a more conservative state, but they passed overwhelmingly in solid-blue Hawaii.

Van Dyke said he was not surprised by the results of the voting because it was supported "vigorously" by several influential people, including Republican Gov. Linda Lingle and her appointed attorney general.

He said it was unusual, however, that the three amendments dealing with sex abuse were specifically and narrowly drafted to overturn state Supreme Court decisions.

The court had ruled that a defendant in a sexual abuse case should have been allowed to question the accuser, his 13-year-old daughter, who later recanted her story; that sex offenders are entitled to hearings on whether to make their names public; and that jury decisions must be unanimous on specific details in sexual assault cases involving several incidents.

"There's nothing wrong with people adjusting the Constitution, but I voted against these changes myself because I thought they were disrespectful to the Supreme Court," Van Dyke said, adding that they "cluttered the Constitution in an awkward way."

State Attorney General Mark Bennett, who wrote letters and led sign-waving on Honolulu streets to promote a "yes" vote, said the amendments do not take away rights, but add them.

"I believe that the criminal justice system in Hawaii was, in many respects, seriously out of balance," Bennett said. "Court decisions in Hawaii had created rights for those convicted or accused of crimes that didn't exist elsewhere."

While the Supreme Court has the "unfettered right to interpret the constitution as it's written, the people and their legislators have a similarly unfettered right to amend the Constitution," he said.

Bennett said the amendments were above politics, noting it took two-thirds votes in both Democratic-controlled houses of the Legislature to get the issues on the ballot.

The ACLU said the amendments were not needed in a state that has one of the nation's lowest violent crime rates per capita.

"It was not really about victims; it's about their agenda to get us to cede our rights and to get us to kind of conform to the Patriot Act," Brady said.

She accused Bennett and other proponents of playing on people's fears, such as the sex offender next door, to gain support.

"Hawaii is a very mellow place with people who have really espoused democratic values. People's rights are always really important. This climate of fear is very difficult to fight," she said.

Bennett said that is "absolute nonsense" and added that Hawaii is still not among the toughest states on crime, even with the four amendments.