Assign enhanced sentencing decisions to juries

THE ISSUE The U.S. Supreme Court has set aside an extremely long prison sentence that had been upheld by the Hawaii Supreme Court.

SEVERAL U.S. Supreme Court rulings in recent years should have prompted the city prosecutor to assign enhanced sentencing issues to juries instead of judges. Failure to do so will negate 10 life sentences of a dangerous multiple offender and is jeopardizing at least a half-dozen other lengthy sentences. Prosecutors should recognize and follow sentencing procedures required by the high court.

The federal Supreme Court directed the Hawaii Supreme Court last week to reconsider its decision upholding the consecutive life terms for Miti Maugaotega Jr. after reading its recent ruling that struck down California's sentencing law. The Hawaii court had been derelict in rejecting the argument in 2005 that a jury, not a judge, should have made such a decision.

The federal high court ruled nearly seven years ago that any "fact" that increases the penalty for a crime beyond the statutory maximum be submitted to a jury and proved beyond a reasonable doubt. Prior convictions were exempt from the consideration, but not behavior evaluations that might be based at least partly on prior crimes.

That instruction was reiterated in two cases in the past three years and again last month, in a ruling that struck down California's sentencing scheme. By a 3-2 vote, the Hawaii Supreme Court has refused to accept the new ground rule.

More than two years ago, in recognition of the federal decisions, U.S. District Judge Susan Mollway overturned the life sentence of Wayman Kaua following his conviction of shooting at police in an armed standoff. Similar sentencing issues in other cases are on appeal.

Those include the case of Mark Shane, now serving a sentence of life in prison without the possibility of parole for the 2003 shooting death of plainclothes police Officer Glen Gaspar at a Kapolei ice cream store. Killing a police officer calls for a sentence of life without parole, but Shane's jury found him guilty of second-degree murder, failing to find beyond a reasonable doubt that Shane realized Gaspar was a policeman.

Circuit Judge Karen Ahn sentenced Shane in 2004 to life without parole anyway, finding that he was a persistent and multiple offender whose extended sentencing was needed to protect the public. She cited the same provision of Hawaii law that had been used by Judge Patrick Border three months earlier in imposing the consecutive sentences on Maugaotega, convicted of attempted murder, rape and a series of burglaries.

In most cases, evidence of prior crimes is not allowed in jury trials because of its prejudicial nature. However, a jury may be asked following a conviction to return for a second stage to determine whether such facts support enhanced sentencing. The two-tiered system is routine in federal court and capital-punishment states where prosecutors seek the death penalty.