Hawaii lawyers normally take notice of decisions by the 9th Circuit Court of Appeals because Hawaii is within its extensive jurisdiction. However, a 9th Circuit ruling that allows incarcerated felons in Washington state to vote is based on a panel's stunning conclusion that the state's entire criminal justice system is racially discriminatory. While many will argue the same can be said of Hawaii's criminal justice system, it should not be easily conceded.

In a 2-1 decision, a three-judge panel overturned a district judge's ruling that a Washington state law forbidding felony inmates from voting in elections does not unquestionably violate the federal Voting Rights of 1965. The two-judge majority found that the disproportional number of African-Americans behind bars “;cannot be explained by factors other than racial discrimination.”;

The duo noted, for example, that blacks in Washington are more than nine times likely to be in prison than whites, even though the black-to-white ratio of those arrested for violent offenses was only 3.72 to one. They added that blacks and Latinos also are much more likely than whites to be searched.

In Hawaii, concerns have been raised about statistics indicating that native Hawaiians comprise as much as 45 percent of the state's prison population while making up only 20 percent of the population. Last year's Legislature approved a resolution calling for the Office of Hawaiian Affairs to complete a study of Hawaiians' “;disparate treatment”; in the state's criminal justice system before this session's Jan. 20 opener.

In the Washington case, dissenting Judge Margaret McKeown questioned the majority conclusion of racial discrimination. She cited a Senate committee report on 1985 amendments to the Voting Rights Act that minority voting figures may “;bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process.”; Of course, those same conditions have been attributed to Hawaiians' high crime rates and level of incarceration.

In her dissent, McKeown commented that the police tendency to “;focus on street markets”; in drug crimes and respond to citizens' calls occurring most often when drug crimes are “;out in the open”; may affect racial aspects of arrests.

“;Or finally, it may be that this approach to policing is race-based,”; she added. “;The point is that there are material factual questions as to cause and effect.”;

The prevailing two judges in the Washington case took a giant leap that McKeown declined. Judges and legislators in Hawaii also should be reluctant to so easily embrace such a conclusive explanation for high rates of minority incarceration.