Sentencing changes are needed to comply with high court

THE ISSUE The Legislature is considering a bill to assign juries the responsibility to determine if extended sentences are warranted.

HAWAII has been slow to respond to a series of U.S. Supreme Court rulings restricting judges' imposition of lengthy sentences. The high court in March specifically declared Hawaii's enhanced sentencing policies to be unconstitutional, and state legislators should use the special Superferry session to correct them.

The court ruled seven years ago that any "fact" that increases the penalty for a crime, other than prior convictions, be put before a jury and proved beyond a reasonable doubt. The court subsequently struck down an enhanced sentence in Washington state in 2004.

It rejected California's sentencing law for similar  reasons in February and a month later directed the Hawaii Supreme Court to reconsider consecutive life prison terms for Miti Maugaotega Jr. for the 2003 attempted murder of homeowner Eric Kawamoto and other charges. The state Supreme Court this month rescinded Maugaotega's sentence and sent the case back to Circuit Court for resentencing.

Judiciaries in some states have directed judges to reconvene juries for second stages, a common practice in capital cases in states with death penalties. Supreme courts in those states determined that they had the power to order such jury sentencing phases without legislative action.

However, Ohio's high court was restricted from doing that for constitutional reasons and a state law that assigns the judge to determine if aggravating factors should result in extended sentences. The Hawaii Supreme Court reached a similar conclusion, leaving changes in the state's sentencing procedures to the Legislature.

Last year's Legislature enacted changes that were intended to comply with the U.S. Supreme Court rulings but, the Hawaii high court noted they "did not vest in the jury the power to find the requisite aggravating facts," leaving that responsibility to the judge, in violation of the rulings. The needed changes are made in a bill introduced in the special session.

Prompt action is necessary because of pending cases. In one case, U.S. District Judge Susan Mollway overturned the life sentence of Wayman Kaua, convicted of attempted manslaughter and other offenses for shooting at police in an armed standoff in 1998. The 9th U.S. Circuit Court of Appeals upheld Mollway's ruling last year.

Other similarly disputed sentences are on appeal, including the term of life in prison without the possibility of parole imposed by a judge on Shane Mark for the 2003 shooting death of plainclothes police Officer Glen Gaspar at a Kapolei ice cream shop. Murdering a police officer calls for such a sentence, but the jury rejected conviction of such an offense, failing to find beyond a reasonable doubt that Mark realized Gaspar was a policeman.