Bill Text: HI SB1224 | 2018 | Regular Session | Introduced
Bill Title: Relating To Minimum Terms Of Imprisonment.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Introduced - Dead) 2018-01-17 - Re-Referred to JDC/PSM, WAM. [SB1224 Detail]
Download: Hawaii-2018-SB1224-Introduced.html
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THE SENATE |
S.B. NO. |
1224 |
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TWENTY-NINTH LEGISLATURE, 2017 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to minimum terms of imprisonment.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that judges are in the best position to determine appropriate minimum terms of imprisonment for convicted felons sentenced to a maximum indeterminate term of imprisonment. Currently, however, this responsibility comprises an estimated one-third of the Hawaii paroling authority's workload, which also includes later deciding whether and when to parole the offender. Unlike paroling authority members, a sentencing judge presides over the pretrial motions, change of plea or trial, and sentencing phases of a case, has the opportunity to become familiar with an offender's history and the facts and circumstances of the offense committed, and receives input from the prosecution, defense, and victim or victim's surviving family members.
The legislature also finds that the information needed by a sentencing judge to make an informed decision about an offender's minimum term is already transmitted to the judge in the form of a pre-sentence correctional diagnosis report before the offender's sentencing hearing. For these reasons, the legislature finds that it would be more efficient to require a consolidated hearing on a convicted offender's sentence and, if sentenced to a maximum indeterminate term of imprisonment, the minimum term of imprisonment the offender must serve before becoming eligible for parole.
The legislature further finds that crime victims and their surviving family members would suffer less trauma if they could present their input at a consolidated sentencing and minimum setting hearing conducted in court, instead of having to attend a separate minimum setting hearing before the paroling authority at a later date, usually conducted in a correctional facility.
The purpose of this Act is to provide for more informed sentencing decisions and to reduce the burden on victims and their surviving family members by requiring the sentencing judge, instead of the Hawaii paroling authority, to determine the minimum term of imprisonment that a convicted offender must serve before becoming eligible for parole.
SECTION 2. Section 706-604, Hawaii Revised Statutes, is amended to read as follows:
"§706-604 Opportunity to be heard with
respect to sentence and minimum term; notice of pre-sentence report;
opportunity to controvert or supplement; transmission of report to department.
(1) Before imposing sentence, the court shall afford a fair opportunity to the
defendant to be heard on the issue of the defendant's disposition[.];
including the court's determination of any minimum term of imprisonment
pursuant to section 706‑669(1), if applicable.
(2) The court shall furnish to the defendant or the defendant's counsel and to the prosecuting attorney a copy of the report of any pre-sentence diagnosis or psychological, psychiatric, or other medical examination and afford fair opportunity, if the defendant or the prosecuting attorney so requests, to controvert or supplement them. The court shall amend or order the amendment of the report upon finding that any correction, modification, or addition is needed and, where appropriate, shall require the prompt preparation of an amended report in which material required to be deleted is completely removed or other amendments, including additions, are made.
(3) In all circuit court cases, regardless of
whether a pre-sentence report has been prepared or waived, the court shall
afford a fair opportunity to the victim to be heard on the issue of the
defendant's disposition, before imposing a sentence[.] or any
applicable minimum term of imprisonment. The court, service center, or
agency personnel who prepare the pre-sentence diagnosis and report shall inform
the victim of the sentencing date and of the victim's opportunity to be heard.
In the case of a homicide or where the victim is a minor or is otherwise unable
to appear at the sentencing hearing, the victim's family shall be afforded the
fair opportunity to be heard.
(4) If the defendant is sentenced to imprisonment, a copy of the report of any pre-sentence diagnosis or psychological, psychiatric, or other medical examination, which shall incorporate any amendments ordered by the court, shall be transmitted immediately to the department of public safety."
SECTION 3. Section 706-656, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:
"(2) Except as provided in section
706-657, pertaining to enhanced sentence for second degree murder, persons
convicted of second degree murder and attempted second degree murder shall be
sentenced to life imprisonment with possibility of parole. The minimum length
of imprisonment shall be determined by the [Hawaii paroling authority;] court
in accordance with section 706-669; provided that persons who are repeat
offenders under section 706-606.5 shall serve at least the applicable mandatory
minimum term of imprisonment.
If the court imposes a sentence of life imprisonment without possibility of parole pursuant to section 706-657, as part of that sentence, the court shall order the director of public safety and the Hawaii paroling authority to prepare an application for the governor to commute the sentence to life imprisonment with parole at the end of twenty years of imprisonment; provided that persons who are repeat offenders under section 706-606.5 shall serve at least the applicable mandatory minimum term of imprisonment."
SECTION 4. Section 706-659, Hawaii Revised Statutes, is amended to read as follows:
"§706-659 Sentence of imprisonment for
class A felony. Notwithstanding part II; sections 706-605, 706-606,
706-606.5, 706-660.1, 706-661, and 706-662; and any other law to the contrary,
a person who has been convicted of a class A felony, except class A felonies
defined in chapter 712, part IV, or section 707-702, shall be sentenced to an
indeterminate term of imprisonment of twenty years without the possibility of
suspension of sentence or probation. The minimum length of imprisonment shall
be determined by the [Hawaii paroling authority] court in
accordance with section 706-669. A person who has been convicted of a class A
felony defined in chapter 712, part IV, or section 707-702, may be sentenced to
an indeterminate term of imprisonment, except as provided for in section
706-660.1 relating to the use of firearms in certain felony offenses and
section 706-606.5 relating to repeat offenders. When ordering such a sentence,
the court shall impose the maximum length of imprisonment, which shall
be twenty years. The minimum length of imprisonment shall be determined by the
[Hawaii paroling authority] court in accordance with section
706-669."
SECTION 5. Section 706-660, Hawaii Revised Statutes, is amended to read as follows:
"§706-660 Sentence of imprisonment for class B and C felonies; ordinary terms; discretionary terms. (1) Except as provided in subsection (2), a person who has been convicted of a class B or class C felony may be sentenced to an indeterminate term of imprisonment except as provided for in section 706-660.1 relating to the use of firearms in certain felony offenses and section 706-606.5 relating to repeat offenders. When ordering such a sentence, the court shall impose the maximum length of imprisonment, which shall be as follows:
(a) For a class B felony--ten years; and
(b) For a class C felony--five years.
The minimum length of imprisonment shall be
determined by the [Hawaii paroling authority] court in accordance
with section 706-669.
(2) A person who has been convicted of a class B or class C felony for any offense under part IV of chapter 712 may be sentenced to an indeterminate term of imprisonment; provided that this subsection shall not apply to sentences imposed under sections 706-606.5, 706-660.1, 712-1240.5, 712-1240.8 as that section was in effect prior to July 1, 2016, 712-1242, 712-1245, 712-1249.5, 712‑1249.6, 712-1249.7, and 712-1257.
When ordering a sentence under this subsection, the court shall impose a term of imprisonment, which shall be as follows:
(a) For a class B felony--ten years or less, but not less than five years; and
(b) For a class C felony--five years or less, but not less than one year.
The minimum length of imprisonment shall be
determined by the [Hawaii paroling authority] court in accordance
with section 706-669."
SECTION 6. Section 706-661, Hawaii Revised Statutes, is amended to read as follows:
"§706-661 Extended terms of imprisonment. The court may sentence a person who satisfies the criteria for any of the categories set forth in section 706-662 to an extended term of imprisonment, which shall have a maximum length as follows:
(1) For murder in the second degree--life without the possibility of parole;
(2) For a class A felony--indeterminate life term of imprisonment;
(3) For a class B felony--indeterminate twenty-year term of imprisonment; and
(4) For a class C felony--indeterminate ten-year term of imprisonment.
When ordering an
extended term sentence, the court shall impose the maximum length of
imprisonment. The minimum length of imprisonment for an extended term sentence under paragraphs (2),
(3), and (4) shall be determined by the [Hawaii paroling authority] court
in accordance with section 706-669."
SECTION 7. Section 706-667, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:
"(3) Special term. A young adult
defendant convicted of a felony, in lieu of any other sentence of imprisonment
authorized by this chapter, may be sentenced to a special indeterminate term of
imprisonment if the court is of the opinion that [such] the
special term is adequate for the young adult defendant's correction and
rehabilitation and will not jeopardize the protection of the public. When
ordering a special indeterminate term of imprisonment, the court shall impose
the maximum length of imprisonment, which shall be eight years for a class A
felony, five years for a class B felony, and four years for a class C felony.
The minimum length of imprisonment shall be set by the [Hawaii paroling
authority] court in accordance with section 706-669. During this
special indeterminate term, the young adult shall be incarcerated separately
from career criminals, when practicable."
SECTION 8. Section 706-669, Hawaii Revised Statutes, is amended to read as follows:
"§706-669 Procedure for determining minimum term
of imprisonment. (1) When [a person has been] an offender is
being sentenced to an indeterminate or an extended term of imprisonment,
the [Hawaii paroling authority shall, as soon as practicable but no later
than six months after commitment to the custody of the director of the
department of [public safety] hold a hearing, and on the basis of the
hearing] court, at the time of sentencing, shall make an order
fixing the minimum term of imprisonment to be served before the [prisoner]
offender shall become eligible for parole.
(2) [Before holding the hearing, the
authority shall obtain a complete report regarding the prisoner's life before
entering the institution and a full report of the prisoner's progress in the
institution. The report shall be a complete personality evaluation] When
fixing a minimum term of imprisonment pursuant to subsection (1), the court
shall consider the pre-sentence correctional diagnosis report prepared under
section 706-601 and may consider other appropriate sources of information for
the purpose of determining the [prisoner's degree of propensity
toward criminal activity.] offender's minimum term.
[(3) The prisoner shall be given reasonable
notice of the hearing under subsection (1) and shall be permitted to be heard
by the authority on the issue of the minimum term to be served before the
prisoner becomes eligible for parole. In addition, the prisoner shall:
(a) Be permitted to consult with any
persons the prisoner reasonably desires, including the prisoner's own legal
counsel, in preparing for the hearing;
(b) Be permitted to be represented and
assisted by counsel at the hearing;
(c) Have counsel appointed to represent
and assist the prisoner if the prisoner so requests and cannot afford to retain
counsel; and
(d) Be informed of the prisoner's rights
under [paragraphs] (a), (b), and (c).]
[(4) The] (3) Independent of the court's
determination of the minimum term to be served before the offender becomes
eligible for parole, the Hawaii paroling authority in its discretion [may],
in any particular case and at any time, may impose a special condition
that the [prisoner] offender, once imprisoned, will not be
considered for parole unless and until the [prisoner] offender
has a record of continuous exemplary behavior.
[(5) After sixty days notice to the
prosecuting attorney, the authority in its discretion may reduce the minimum
term fixed by its order pursuant to subsection (1).] (4) The authority
in its discretion may reduce a minimum term fixed by its own order, but only
after sixty days notice to the prosecuting attorney. In no event shall the
authority reduce a minimum term fixed by the court pursuant to subsection (1).
[(6) A verbatim stenographic or mechanical
record of the hearing shall be made and preserved in transcribed or
untranscribed form.
(7) The State shall have the right to be
represented at the hearing by the prosecuting attorney who may present written
testimony and make oral comments and the authority shall consider such
testimony and comments in reaching its decision. The authority shall notify
the prosecuting attorney of the hearing at the time the prisoner is given
notice of the hearing. The hearing shall be opened to victims or their
designees or surviving immediate family members who may present a written
statement or make oral comments.
(8) The authority shall establish
guidelines for the uniform determination of minimum sentences, which shall take
into account both the nature and degree of the offense of the prisoner and the
prisoner's criminal history and character. The guidelines shall be public
records and shall be made available to the prisoner and to the prosecuting
attorney and other interested government agencies.]"
SECTION 9. Section 706-670, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:
"(1) Parole hearing. A person sentenced
to an indeterminate term of imprisonment shall receive an initial parole
hearing at least one month before the expiration of the minimum term of
imprisonment determined [by the Hawaii paroling authority] pursuant to
section 706-669. If the person has been sentenced to multiple terms of
imprisonment, the parole hearing shall not be required until at least one month
before the expiration of the minimum term that expires last in time. A
validated risk assessment shall be used to determine the person's risk of
re-offense and suitability for community supervision. For purposes of this
subsection, "validated risk assessment" means an actuarial tool to
determine a person's likelihood of engaging in future criminal behavior. The
department of public safety shall select a research-based risk assessment tool
and shall validate the accuracy of the risk assessment tool at least every five
years in consultation with the paroling authority. Assessments shall be
performed by department of public safety staff who are trained in the use of
the risk assessment tool. Except for good cause shown to the paroling
authority, a person who is assessed as low risk for re-offending shall be
granted parole upon completing the minimum sentence, unless the person:
(a) Is found to have an extensive criminal history record that is indicative of a likelihood of future criminal behavior in spite of the finding by the risk assessment by the paroling authority;
(b) Is found to have committed misconduct while in prison that is equivalent to a misdemeanor or felony crime within thirty-six months of the expiration of the minimum term of imprisonment;
(c) Has any pending felony charges in the State;
(d) Is incarcerated for a sexual offense under part V of chapter 707 or child abuse under part VI of chapter 707; or
(e) Does not have a parole plan as set forth under section 706-670(3) and (4), as approved by, and at the discretion of, the paroling authority.
If parole is not granted at the initial parole hearing, additional hearings shall be held at twelve-month intervals or less until parole is granted or the maximum period of imprisonment expires. The State shall have the right to be represented at the initial parole hearing and all subsequent parole hearings by the prosecuting attorney, who may present written testimony and make oral comments. The authority shall consider the testimony and comments in reaching its decision. The authority shall notify the appropriate prosecuting attorney of the hearing at the time the prisoner is given notice of the hearing."
SECTION 10. Section 707-784, Hawaii Revised Statutes, is amended to read as follows:
"[[]§707-784[]] Extended
terms of imprisonment; labor trafficking offenses. If a person is found
guilty of a violation under section 707-781 or 707-782 and the victim of the
offense suffered bodily injury, the person may be sentenced to an extended
indeterminate term of imprisonment as described in this section. Subject to
the procedures set forth in section 706-664, the court may impose, in addition
to the indeterminate term of imprisonment provided for the grade of offense, an
additional indeterminate term of imprisonment as follows:
(a) Bodily injury – an additional two years of imprisonment;
(b) Substantial bodily injury – an additional five years of imprisonment;
(c) Serious bodily injury – an additional fifteen years of imprisonment; or
(d) If death results, the defendant shall be sentenced in accordance with the homicide statute relevant for the level of criminal intent.
When ordering an extended term sentence, the court
shall impose the maximum length of imprisonment. The minimum length of
imprisonment for an extended term sentence under paragraph (a), (b), (c), or
(d) shall be determined by the [Hawaii paroling authority] court
in accordance with section 706-669."
SECTION 11. No later than December 1, 2017, the judiciary shall conduct training for all judges who will be required to determine an offender's minimum term of imprisonment pursuant to this Act.
SECTION 12. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 13. This Act shall take effect on January 1, 2018; provided that:
(1) Section 11 shall take effect on July 1, 2017;
(2) The amendments made to section 706-670, Hawaii Revised Statutes, by section 9 of this Act shall not be repealed when that section is reenacted on July 1, 2018, pursuant to section 14 of Act 139, Session Laws of Hawaii 2012, as amended by section 2 of Act 67, Session Laws of Hawaii 2013 and section 69 of Act 231, Session Laws of Hawaii 2016;
(3) This Act shall apply to offenses committed on or after January 1, 2018, and shall not be construed to confer a right on any person sentenced before the effective date of this Act to move a court for reduction of a minimum term fixed by the Hawaii paroling authority; and
(4) In cases involving offenses committed before January 1, 2018, the court shall fix the minimum term of imprisonment in accordance with the amendments made in section 8 of this Act, if the person is sentenced after December 31, 2017.
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INTRODUCED BY: |
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Report Title:
Imprisonment; Minimum Terms
Description:
Requires judges, instead of the Hawaii paroling authority, to determine the minimum term of imprisonment a convicted offender must serve before becoming eligible for parole.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
