Bill Text: HI HB2734 | 2016 | Regular Session | Introduced
Bill Title: Criminal Justice; Incarceration; Sentencing
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2016-02-02 - Re-referred to PBS, JUD, FIN, referral sheet 7 [HB2734 Detail]
Download: Hawaii-2016-HB2734-Introduced.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
2734 |
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TWENTY-EIGHTH LEGISLATURE, 2016 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to criminal justice.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
PART I
The legislature finds that Hawaii's criminal justice system is overwhelmed and overcrowded at every point. Hawaii's court system, public defenders, and correctional institutions are all operating over the capacity for which they were designed. Further, the legislature finds that the burdens of this overcrowding fall disproportionately on Hawaii's most socially disempowered populations. Numerous studies and reports have shown that native Hawaiians are overrepresented in the criminal justice and corrections systems.
The purpose of this Act is to make Hawaii's criminal justice system more equitable and efficient by introducing compassion back into the justice system and implementing policies that enable people to get the help they need for rehabilitation and reintegration into society.
PART II
SECTION 2. The purpose of this part is to repeal mandatory minimum sentences for drug offenses.
SECTION 3. Section 706-606.5, Hawaii Revised Statutes, is amended to read as follows:
"§706-606.5 Sentencing of repeat
offenders. (1) Notwithstanding section 706-669 and any other law to the
contrary, any person convicted of murder in the second degree, any class A
felony[,] or any class B felony[,] other than a class A
or class B felony under part IV or chapter 712, or any of the following
class C felonies: section 134-7 relating to persons prohibited from owning,
possessing, or controlling firearms or ammunition; section 134-8 relating to
ownership, etc., of certain prohibited weapons; section 134-17 only as it
relates to providing false information or evidence to obtain a permit under
section 134-9; section 188-23 relating to possession or use of explosives,
electrofishing devices, and poisonous substances in state waters; section
386-98(d)(1) relating to fraud violations and penalties; section 431:2-403(b)(2)
relating to insurance fraud; section 707-703 relating to negligent homicide in
the second degree; section 707-711 relating to assault in the second degree;
section 707-713 relating to reckless endangering in the first degree; section
707-716 relating to terroristic threatening in the first degree; section
707-721 relating to unlawful imprisonment in the first degree; section 707-732
relating to sexual assault in the third degree; section 707-752 relating to
promoting child abuse in the third degree; section 707-757 relating to
electronic enticement of a child in the second degree; section 707-766 relating
to extortion in the second degree; section 708-811 relating to burglary in the
second degree; section 708-821 relating to criminal property damage in the
second degree; section 708-831 relating to theft in the second degree; section
708-835.5 relating to theft of livestock; section 708-836 relating to
unauthorized control of propelled vehicle; section 708-839.55 relating to
unauthorized possession of confidential personal information; section 708-839.8
relating to identity theft in the third degree; section 708-852 relating to
forgery in the second degree; section 708-854 relating to criminal possession
of a forgery device; section 708-875 relating to trademark counterfeiting;
section 710-1071 relating to intimidating a witness; section 711-1103 relating
to riot; section 712-1221 relating to promoting gambling in the first degree;
section 712-1224 relating to possession of gambling records in the first
degree; [section 712-1243 relating to promoting a dangerous drug in the
third degree; section 712-1247 relating to promoting a detrimental drug in the
first degree;] section 846E-9 relating to failure to comply with covered
offender registration requirements, or who is convicted of attempting to commit
murder in the second degree, any class A felony[,] or any class B
felony[,] other than a class A or class B felony under part IV or
chapter 712, or any of the class C felony offenses enumerated above and who
has a prior conviction or prior convictions for the following felonies,
including an attempt to commit the same: murder, murder in the first or second
degree, a class A felony, a class B felony, any of the class C felony offenses
enumerated above, or any felony conviction of another jurisdiction, shall be
sentenced to a mandatory minimum period of imprisonment without possibility of
parole during such period as follows:
(a) One prior felony conviction:
(i) Where the instant conviction is for murder in the second degree or attempted murder in the second degree覧ten years;
(ii) Where the instant conviction is for a class A felony覧six years, eight months;
(iii) Where the instant conviction is for a class B felony覧three years, four months; and
(iv) Where the instant conviction is for a class C felony offense enumerated above覧one year, eight months;
(b) Two prior felony convictions:
(i) Where the instant conviction is for murder in the second degree or attempted murder in the second degree覧twenty years;
(ii) Where the instant conviction is for a class A felony覧thirteen years, four months;
(iii) Where the instant conviction is for a class B felony覧six years, eight months; and
(iv) Where the instant conviction is for a class C felony offense enumerated above覧three years, four months;
(c) Three or more prior felony convictions:
(i) Where the instant conviction is for murder in the second degree or attempted murder in the second degree覧thirty years;
(ii) Where the instant conviction is for a class A felony覧twenty years;
(iii) Where the instant conviction is for a class B felony覧ten years; and
(iv) Where the instant conviction is for a class C felony offense enumerated above覧five years."
SECTION 4. Section 712-1240.5, Hawaii Revised Statutes, is amended to read as follows:
"[[]§712-1240.5[]]
Manufacturing a controlled substance with a child present. (1) Except as
provided in subsection (2), any person convicted of manufacturing a controlled
substance in violation of this chapter, who commits the offense knowing that a
child under the age of sixteen is present in the structure where the offense
occurs, shall be sentenced to [a term of two years imprisonment to run
consecutively to] the maximum indeterminate term of imprisonment for the
conviction of any offense involving the manufacturing of a controlled
substance.
(2) Any person convicted of manufacturing a
controlled substance in violation of this chapter, who commits the offense
knowing that a child under the age of eighteen is present in the structure
where the offense occurs and causes the child to suffer serious or substantial
bodily injury as defined in section 707-700, shall be sentenced to [a term
of five years imprisonment to run consecutively to] the maximum indeterminate
term of imprisonment for the conviction of any offense involving the
manufacturing of a controlled substance.
(3) As used in this section, "structure" means any house, apartment building, shop, warehouse, building, vessel, cargo container, motor vehicle, tent, recreational vehicle, trailer, or other enclosed space capable of holding a child and equipment for the manufacture of a controlled substance."
SECTION 5. Section 712-1240.7, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:
"(3) Notwithstanding sections 706-620(2),
706-640, 706-641, 706-659, 706-669, and any other law to the contrary, a person
convicted of methamphetamine trafficking in the first degree shall be sentenced
to an indeterminate term of imprisonment of twenty years [with a mandatory
minimum term of imprisonment of not less than two years and not greater than
eight years] and a fine not to exceed $20,000,000[; provided that:
(a) If the person has one prior conviction
for methamphetamine trafficking pursuant to this section or section 712-1240.8,
the mandatory minimum term of imprisonment shall be not less than six years,
eight months and not greater than thirteen years, four months;
(b) If the person has two prior
convictions for methamphetamine trafficking pursuant to this section or section
712-1240.8, the mandatory minimum term of imprisonment shall be not less than
thirteen years, four months and not greater than twenty years; or
(c) If the person has three or more prior
convictions for methamphetamine trafficking pursuant to this section or section
712-1240.8, the mandatory minimum term of imprisonment shall be twenty years]."
SECTION 6. Section 712-1240.8, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:
"(3) Notwithstanding sections 706-620,
706-640, 706-641, 706-660, 706-669, and any other law to the contrary, a person
convicted of methamphetamine trafficking in the second degree shall be
sentenced to an indeterminate term of imprisonment of ten years [with a
mandatory minimum term of imprisonment of not less than one year and not
greater than four years] and a fine not to exceed $10,000,000[; provided
that:
(a) If the person has one prior conviction
for methamphetamine trafficking pursuant to this section or section 712-1240.7,
the mandatory minimum term of imprisonment shall be not less than three years,
four months and not greater than six years, eight months;
(b) If the person has two prior
convictions for methamphetamine trafficking pursuant to this section or section
712-1240.7, the mandatory minimum term of imprisonment shall be not less than
six years, eight months and not greater than ten years; or
(c) If the person has three or more prior
convictions for methamphetamine trafficking pursuant to this section or section
712-1240.7, the mandatory minimum term of imprisonment shall be ten years]."
SECTION 7. Section 712-1249.6, Hawaii Revised Statutes, is amended to read as follows:
"§712-1249.6 Promoting a controlled substance in, on, or near schools, school vehicles, public parks, or public housing projects or complexes. (1) A person commits the offense of promoting a controlled substance in, on, or near schools, school vehicles, public parks, or public housing projects or complexes if the person knowingly:
(a) Distributes or possesses with intent to distribute a controlled substance in any amount in or on the real property comprising a school, public park, or public housing project or complex;
(b) Distributes or possesses with intent to distribute a controlled substance in any amount within seven hundred and fifty feet of the real property comprising a school, public park, or public housing project or complex;
(c) Distributes or possesses with intent to distribute a controlled substance in any amount while on any school vehicle, or within ten feet of a parked school vehicle during the time that the vehicle is in service for or waiting to transport school children; or
(d) Manufactures methamphetamine or any of its salts, isomers, and salts of isomers, within seven hundred and fifty feet of the real property comprising a school, public park, or public housing project or complex.
(2) A person who violates subsection (1)(a), (b), or (c) is guilty of a class C felony. A person who violates subsection (1)(d) is guilty of a class A felony.
[(3) Any person with prior conviction or
convictions under subsection (1)(a), (b), or (c) is punishable by a term of
imprisonment of not less than two years and not more than ten years.
(4) Any individual convicted under
subsection (3) of this section shall not be eligible for parole until the
individual has served the minimum sentence required by such subsection.
(5)] (3) For the purposes of
this section, "school vehicle" means every school vehicle as defined
in section 286-181 and any regulations adopted pursuant to that section.
[(6)] (4) For purposes of this
section, "school" means any public or private preschool,
kindergarten, elementary, intermediate, middle secondary, or high school.
[(7)] (5) For purposes of this
section, "public housing project or complex" means a housing project
directly controlled, owned, developed, or managed by the Hawaii public housing
authority pursuant to the federal or state low-rent public housing
program."
PART III
SECTION 8. The purpose of this part is to assist the office of the public defender in its advocacy for some of the State's most vulnerable and high-needs criminal defendants by providing adequate resources and training to deal with defendants who are affected by mental illness.
SECTION 9. Section 802-12, Hawaii Revised Statutes, is amended to read as follows:
"§802‑12 Organization of office; assistance. (a) Subject to the approval of the defender council, the state public defender may employ assistant state public defenders and other employees, including investigators, as may be necessary to discharge the function of the office. Assistant state public defenders shall be qualified to practice before the supreme court of this State. Assistant state public defenders shall be appointed without regard to chapter 76 and shall serve at the pleasure of the state public defender. All other employees may be appointed in accordance with chapter 76. An assistant state public defender may be employed on a part-time basis, and when so employed, the assistant public defender may engage in the general practice of law, other than in the practice of criminal law.
(b) Subject to the approval of the defender council, the state public defender shall employ at least one mental health specialist on a permanent, full-time basis. The mental health specialist shall be qualified by training, education, and experience to identify persons served by the office who are affected by mental illness, evaluate any special needs that such persons may have in relation to their participation in the criminal justice system, provide for those needs either through direct services or referrals, and conduct training for assistant state public defenders and other employees on identifying, assessing the needs of, and effectively advocating for persons with mental illness within the criminal justice system."
SECTION 10. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2016-2017 for one full time (1.0 FTE) mental health specialist position in the office of the public defender.
The sum appropriated shall be expended by the office of the public defender for the purposes of this Act.
PART IV
SECTION 11. The legislature finds that one of the principal objectives of both contemporary sentencing theory and current judicial practice is the imposition of sentences that are proportionate to the offense committed and likely to improve long-term, community-wide public safety. In cases involving extremely violent and serious crimes or habitual offenders, incarceration may be the only response that is both proportionate and guarantees public safety, at least for the period in which the offender is removed from the larger society. However, in cases involving less-serious crime or offenders who have not demonstrated resistance to rehabilitation, appropriate sentences often need not take the form of imprisonment or long-term incarceration. In fact, the ultimate goal of improved community safety is often best served by evidence-based sentencing policies and programs that focus on rehabilitation and community reintegration.
The legislature finds that long-term incarceration in the State's correctional facilities should be reserved for those offenders convicted of extremely violent or serious crimes or who demonstrate little interest in or capacity for rehabilitation. In other cases, however, appropriate punishment need not solely take the form of incarceration but can and should take the form of some other intermediate sanction less severe than incarceration but more severe than standard probation. In these cases, intermediate sanctions that have been shown to reduce the risk of future recidivism, adequately protect the public safety, and control short and medium term risks to the community must be available to the courts. If appropriate, evidence-based sentencing alternatives are not available, courts have little choice but to ignore risk reduction consequences and resort to imprisonment or long-term incarceration in many felony cases.
The purpose of this part is to authorize and fund evidence-based sentencing alternatives that include appropriate intermediate sanctions and other offender control mechanisms designed to address the criminogenic needs of felony offenders to reduce the risk of recidivism, emphasize long-term community safety, and concentrate space in state correctional facilities on violent and career offenders.
SECTION 12. Section 706-602, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:
"(1) The pre-sentence diagnosis and report shall be made by personnel assigned to the court or other agency designated by the court and shall include:
(a) An analysis of the circumstances attending the commission of the crime;
(b) The defendant's history of delinquency or criminality, physical and mental condition, family situation and background, economic status and capacity to make restitution or to make reparation to the victim or victims of the defendant's crimes for loss or damage caused thereby, education, occupation, and personal habits;
(c) Information made available by the victim or other source concerning the effect that the crime committed by the defendant has had upon said victim, including but not limited to, any physical or psychological harm or financial loss suffered;
(d) Information concerning defendant's compliance or
non-compliance with any order issued under section 806-11; [and]
(e) A needs and risk assessment based on the best available research that identifies the relative risk that the defendant poses to public safety through future criminal conduct, the defendant's needs that must be met to facilitate rehabilitation and community reintegration, and recommendations for appropriate evidence-based sentencing alternatives or rehabilitative programs to be offered in a correctional facility or in the community; and
[(e)] (f) Any other matters that the
reporting person or agency deems relevant or the court directs to be
included."
SECTION 13. Section 706-605, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:
"(1) Except as provided in parts II and IV or in section 706-647 and subsections (2), (6), and (7), and subject to the applicable provisions of this Code, the court may sentence a convicted defendant to one or more of the following dispositions:
(a) To be placed on probation as authorized by part II;
(b) To pay a fine as authorized by part III and section 706-624;
(c) To be imprisoned for a term as authorized by
part IV; [or]
(d) To perform services for the community under the
supervision of a governmental agency or benevolent or charitable organization
or other community service group or appropriate supervisor; provided that the
convicted person who performs such services shall not be deemed to be an
employee of the governmental agency or assigned work site for any purpose. All
persons sentenced to perform community service shall be screened and assessed
for appropriate placement by a governmental agency coordinating public service
work placement as a condition of sentence[.]; or
(e) To participate in an evidence-based sentencing alternative adopted by the court pursuant to the recommendation of the judicial council."
SECTION 14. Section 706-606, Hawaii Revised Statutes, is amended to read as follows:
"§706-606 Factors to be considered in imposing a sentence. The court, in determining the particular sentence to be imposed, shall consider:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant;
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense, to promote respect for law, and to provide just punishment for the offense;
(b) To afford adequate deterrence to criminal conduct;
(c) To protect the public from further crimes of the defendant; and
(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) The kinds of sentences available; [and]
(4) The need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct[.]; and
(5) The reservation of space and resources within the State's correctional facilities for violent and repeat offenders."
SECTION 15. The judicial council shall make recommendations to the chief justice for instruments or processes, based on the best available research, to:
(1) Assess the needs of offenders that must be met to facilitate their rehabilitation and to assist the courts in judging the amenability of individual offenders to rehabilitative programs in confinement or in the community; and
(2) Estimate the relative risk that individual offenders pose to public safety through future criminal conduct.
The judicial council shall study the feasibility of identifying, through risk assessment instruments or processes, those felony offenders who present an unusually low risk to public safety and for whom the sentencing court shall have discretion to impose an evidence-based sentencing alternative rather than a term of incarceration or to impose a shorter term of incarceration conditioned upon completion of a rehabilitative program, either in confinement or in the community.
The judicial council shall make recommendations to the chief justice on the adoption by the judiciary of evidence-based sentencing alternatives and of rehabilitative programs to be offered in confinement and in the community.
PART V
SECTION 16. The legislature finds that costs associated with corrections and services to offenders are some of the State's largest expenditures. The legislature also finds that reforms to corrections and offender services and reallocation of current expenditures in these areas have the potential to be important engines of cost savings for the State. Transparency with regard to the fiscal impact of corrections-related legislation is critical for sound decisionmaking on corrections policy. Fiscal transparency will empower the legislature, and the people of Hawaii, to ensure that corrections policy reflects prudent investment in effective initiatives that benefit the State's long term interest.
The purpose of this part is to require that every measure concerning corrections or criminal sentencing policy that is introduced for consideration by the legislature shall include a fiscal impact statement.
SECTION 17. Chapter 21, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§21- Fiscal impact statement; corrections and sentencing. (a) No measure that concerns sentencing of criminal defendants, the operation of any correctional facility, or any matter of statewide corrections policy shall be referred for a vote by either house of the legislature or by any standing committee of either house of the legislature unless the measure contains a fiscal impact statement in accordance with requirements for fiscal impact statements contained in the rules of the relevant house of the legislature.
(b) The legislative reference bureau shall prepare fiscal impact statements for all measures subject to this section."
PART VI
SECTION 18. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 19. This Act shall take effect on July 1, 2016.
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INTRODUCED BY: |
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Report Title:
Criminal Justice; Incarceration; Sentencing
Description:
Repeals mandatory minimum sentences for drug offenses. Establishes a mental health specialist position in the Office of the Public Defender. Authorizes evidence-based sentencing alternatives to incarceration. Requires fiscal impact statement for legislation relating to sentencing and corrections.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
