Bill Text: HI SB2239 | 2020 | Regular Session | Introduced

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Bill Title: Relating To Prosecutorial Transparency.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-01-28 - Re-Referred to PSM/JDC, WAM. [SB2239 Detail]

Download: Hawaii-2020-SB2239-Introduced.html

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THE SENATE	S.B. NO.	2239
THIRTIETH LEGISLATURE, 2020
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to prosecutorial transparency.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  The legislature finds that the offices of the prosecuting attorney of the respective counties in the State, which receive taxpayer funding from and are subject to oversight by the legislature, are the most powerful actors in the criminal justice system.  Among other things, prosecuting attorneys decide whether to charge people, and with what crimes.  They determine, virtually unilaterally, whether individuals will be diverted from the criminal system, thereby avoiding criminal records and attendant collateral consequences.  They also make influential recommendations regarding pretrial detention, bail, and sentencing.  These decisions and more have a lasting impact on people accused of crime, victims, families, communities, and Hawai‘i's economy.  Yet basic information and data about these offices and their practices, while nominally publicly available, are exceedingly difficult to access and understand.

     All individuals, including voters who determine which prosecutors should hold elected office and taxpayers who fund these offices, deserve unfettered access to this information in a way they can understand and use, unless protected by a recognized privilege or statutory exemption.  In addition to educating voters, the offices of the prosecuting attorney should disclose information to help identify the drivers of mass incarceration and racial disparities in the criminal justice system.  Such information will improve accountability for offices that violate the law and individuals' rights.  It will help produce fairer outcomes in individual criminal cases, including via better-informed plea negotiations and it will hasten improvements in prosecuting attorneys' offices themselves, creating management efficiencies and cost savings.  The legislature intends these and other salutary results of increased prosecutorial transparency.

     The legislature concludes that it is a compelling state interest to implement uniform information transparency requirements for offices of the prosecuting attorney around the State, and that the public has a right to know such information. 

     Accordingly, the purpose of this Act is to increase prosecutorial transparency in the State.

     SECTION 2.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

prosecutorial transparency

     §   -A  Definitions.  As used in this chapter:

     "Case number" means the unique number assigned to a criminal case associated with a particular criminal charge.

     "Charge" means any accusation of a crime by the offices of the prosecuting attorney of the respective counties, including but not limited to an ordinance, citation, summary, misdemeanor, felony, or other type of crime, and accusations brought by ticket, citation, information, complaint, indictment, or other charging instrument.

     "Charge description" means the name of the charge as given by the penal code; a statement of the conduct that is alleged to have been violated; the associated statutory section establishing such conduct as criminal; the misdemeanor, felony, or other classification of the charge; and any level or tier within the misdemeanor, felony, or other classification.

     "Charge ID" means the unique identification number assigned to a charge.

     "Charge modifier" means any aggravating or mitigating circumstance of an alleged charge that enhances, reduces, or reclassifies it to a different classification grade or level.

     "Disposition" means the conclusion of the prosecution of any charge, including but not limited to nolle prosequi, diversion, dismissal, dismissal as part of plea bargain, conviction as part of plea bargain, conviction at trial, acquittal, or any other means.

     "Initiation" means the creation or institution of a charge against a criminal defendant, whether by police, prosecutors, grand jury, or other entity.

     "Policy" means any policy, procedure, guideline, manual, training material, direction, instruction, or other piece of information, whether formal or informal, oral or in writing, that contains any guidance whatsoever for employees of the offices of the prosecuting attorney of the respective counties.

     "Unique identifier" means a randomly generated number that is assigned in place of a defendant's name.

     §   -B  Information to be collected, maintained, and disclosed.  (a)  Each office of the prosecuting attorney of the respective counties shall collect and disclose the following data for each case prosecuted by the office and maintain a record of all information collected for at least ten years:

     (1)  Case number;

     (2)  Indictment number;

     (3)  Docket number;

     (4)  Unique identifier;

     (5)  Defendant race;

     (6)  Defendant gender;

     (7)  Defendant disability status, if any, including:

          (A)  Mental, psychiatric, developmental, and intellectual disabilities;

          (B)  Physical and mobility disabilities; and

          (C)  Sensory, vision, and hearing disabilities;

     (8)  Source of information of the defendant's disability status, including:

          (A)  Defendant's advocate or attorney;

          (B)  Observation by prosecutor; or

          (C)  Other;

     (9)  Incident date;

    (10)  Arrest date;

    (11)  District or neighborhood of arrest;

    (12)  Primary arresting agency;

    (13)  Other agencies involved in arrest, if any;

    (14)  Charges listed on arresting agency paperwork;

    (15)  The reason for the prosecuting attorney declining to prosecute the arrest, if applicable;

    (16)  Charges brought by the prosecuting attorney;

    (17)  Name of the prosecutor who approved each charge;

    (18)  Whether the defendant was deemed eligible for court-appointed counsel, the name of the proceeding, and location of where such determination was made;

    (19)  Arraignment date;

    (20)  Charge modification date;

    (21)  Charge following modification;

    (22)  Whether diversion was offered;

    (23)  Date diversion was offered;

    (24)  Judicial position on diversion, if any was stated on the record;

    (25)  If diversion was offered, whether it was accepted by the defendant;

    (26)  Diversion terms, including how much defendant must pay, if applicable;

    (27)  Whether the charge carried a mandatory minimum sentence;

    (28)  The prosecutor's recommendation on bail or bond, including release conditions;

    (29)  Whether bail or bond was imposed on the defendant;

    (30)  Whether bond was secured, unsecured, or other type;

    (31)  Date bail or bond imposed;

    (32)  Release conditions, if ordered;

    (33)  Date range of any pretrial detention;

    (34)  Whether a risk assessment or other algorithm-based or quantitative tool was used in determining whether pretrial detention was ordered and the amount of bail or bond, if applicable, including:

          (A)  The name of the office or agency that conducted the risk assessment; and

          (B)  The name of offices, agencies, individuals, or attorneys that received the risk assessment results;

    (35)  Whether any statutory or constitutional rights of defendants were waived, either by stipulation or on the record, including:

          (A)  The dates of such waiver;

          (B)  The rights waived; and

          (C)  Whether and which rights were waived as a condition of a plea bargain;

    (36)  Whether a plea was offered;

    (37)  Whether a time limit was provided with a plea offer;

    (38)  All terms of all pleas offered, including but not limited to:

          (A)  Charges dismissed;

          (B)  Sentence ranges for charges dismissed;

          (C)  Charges in the plea;

          (D)  Sentence ranges for charges in the plea;

          (E)  Any charges covered by the plea but not part of the conviction; and

          (F)  Penalties or sentence offered for taking the plea, if any;

    (39)  Whether the plea was accepted or rejected;

    (40)  Whether discovery was offered to defendant before the plea;

    (41)  Date discovery was disclosed to defense or defendant;

    (42)  Presiding judge at pretrial stage;

    (43)  Disposition, including:

          (A)  Case or charges dropped by the prosecuting attorney or dismissed on motion of the prosecuting attorney, and reason for dismissal;

          (B)  All charges the defendant was convicted of, if any;

          (C)  If convicted, whether by plea, jury trial, or bench trial; and

          (D)  The reason for dismissal if the case was dismissed by the judge;

    (44)  Presiding judge at disposition;

    (45)  Disposition date;

    (46)  Sentence type;

    (47)  Sentence length;

    (48)  Presiding judge at sentencing;

    (49)  Supervision terms;

    (50)  Services required or provided, if any;

    (51)  Fines, fees, or surcharges imposed, if any; and

    (52)  Forfeiture of property required, if any.

     (b)  The offices of the prosecuting attorney of the respective counties shall collect and publish all office policies.  Office policies shall cover procedures and protocols relating to the following:

     (1)  Charge dismissal and charging;

     (2)  Bail;

     (3)  Sentencing;

     (4)  Plea bargains;

     (5)  Grand jury practices;

     (6)  Discovery practices;

     (7)  Witness treatment, including when and how to procure a material witness warrant;

     (8)  How a decision is made to prosecute a juvenile as an adult;

     (9)  Assessment of fines and fees;

    (10)  Criminal and civil forfeiture practices;

    (11)  Mental health screening and collection of mental health history;

    (12)  Substance abuse history screening;

    (13)  Domestic violence survivors;

    (14)  Diversion policies and practices;

    (15)  Human resources, including but limited to hiring, evaluation, firing, promotion, and rotation among divisions or units;

    (16)  Internal discipline;

    (17)  Victim services;

    (18)  Restorative justice programs;

    (19)  Annual office trainings;

    (20)  Practices involving tracking and responding to prison inmates' applications for parole or resentencing; and

    (21)  Policies specific to vulnerable populations.

     (c)  The offices of the prosecuting attorney of the respective counties shall collect and publish the following information for every attorney employed in the office, with names and other personally identifying information redacted or replaced by an anonymizing identifier.

     (1)  Age;

     (2)  Gender;

     (3)  Race;

     (4)  Date hired;

     (5)  Title; and

     (6)  Disciplinary history.

     (d)  The offices of the prosecuting attorney of the respective counties shall collect and publish the following information:

     (1)  Number of attorneys on staff;

     (2)  Cases handled per year per attorney;

     (3)  Number of attorneys who worked for the office in a temporary or contract capacity during the previous calendar year;

     (4)  Number of paralegals and administrative staff employed by the office;

     (5)  Number of investigators utilized during the previous calendar year;

     (6)  Number of experts utilized during the previous calendar year, whether on staff or otherwise; and

     (7)  Number of police officers and detectives who work directly for the office of the prosecuting attorney.

     §   -C  Reporting requirements.  (a)  Beginning January 1, 2021, the offices of the prosecuting attorney of the respective counties shall make publicly available all the information required pursuant to section    -B by posting it on the office's website and making it readily publicly available to any person who requests it directly from the office.  The information required pursuant to subsection    -B (b) shall include the effective date of the policy or the date the information was gathered, and the office shall ensure that it posts revised, updated, or newly drafted policies or newly collected information on a timely basis; provided policies are updated at least once each year.

     (b)  No later than January 1, 2023, the criminal justice research institute shall:

     (1)  Determine a uniform and consistent manner in which the offices of the prosecuting attorney of the respective counties shall transmit the data required pursuant to section    -B;

     (2)  Determine an implementation schedule and plan by which all offices of the prosecuting attorney in the State shall report all data required pursuant to section    -B .  The plan may include, at the sole discretion of the criminal justice research institute, implementation on a rolling basis that starts by prioritizing a subset of the data in section    -B or starts by prioritizing reporting from larger offices;

     (3)  In accordance with the plan, begin receiving data from the offices of the prosecuting attorney, stripped of any individualized or identifying personal information about any person arrested or prosecuted, on or before January 31st, for the preceding calendar year;

     (4)  On May 1 of each year, begin publishing online the data collected under section    -B in a modern, open, electronic format that is machine-readable, machine-searchable, and readily accessible to the public on the centralized statewide criminal pretrial justice data reporting and collection system.  No published data shall contain individualized or identifying personal information about any person arrested or prosecuted;

     (5)  On September 1 of each year, produce an annual report that analyzes the data received from all offices of the prosecuting attorney comparing and contrasting the practices and trends among and between offices in the State and identifying any offices that are not in compliance with this chapter; and

     (6)  From time-to-time, but not less frequently than twice per year, publish issue-specific reports that provide a deeper analysis of one or more areas of prosecutorial decision-making.  At least one such report per year shall focus on racial disparities in a particular point of prosecutorial decision-making.

     (c)  Notwithstanding any other provision of law, where the criminal justice research institute has made a determination that an office of the prosecuting attorney is not in compliance with this chapter, that office shall be ineligible to receive funding from the State.  Funding shall be restored only after full compliance with the requirements of this section, after the office provides the required information from the date of non-compliance through the current date, and upon a compliance review by the criminal justice research institute and certification that the office is in compliance with this chapter.

     (d)  If an office of the prosecuting attorney is in compliance with this section and receives a request for information under the Hawaii uniform information practices act that the office reasonably and in good faith believes can be satisfied by reference to data made publicly available under this section, the office may satisfy its obligation under the Hawaii uniform information practices act by referring the requesting party to the relevant website containing the data.  In such circumstance, the office of the prosecuting attorney need not collect and disclose the particular data requested.

     If the requesting party does not believe that its request can be satisfied with data collected under this section and published on the relevant website, the requesting party may file suit in accordance with the Hawaii uniform information practices act to compel disclosure."

     SECTION 3.  No later that October 1, 2020, the governor shall establish a prosecutorial transparency advisory board.  The advisory board shall meet no less than once per quarter with the criminal justice research institute to provide input and guidance on any and all draft rules, regulations, policies, plans, reports, or other decisions made by the criminal justice research institute relating to this Act.  The advisory board shall be appointed by the governor without regard to chapter 76 and shall be comprised of no fewer than seven members,  including at least two members who are public defenders or criminal defense attorneys and two members who have direct experience of being prosecuted by the State's criminal justice system.  The members of the advisory board shall serve without compensation.

     SECTION 4.  In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 5.  If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 6.  This Act shall take effect on July 1, 2020.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Office of the Prosecuting Attorney; Criminal Justice Research Institute; Prosecutorial Transparency; Reporting Requirements; Advisory Board

 

Description:

Requires the offices of the prosecuting attorney of the respective counties to collect and publish certain data relating to criminal defendants and prosecutorial decision-making.  Requires governor to establish a prosecutorial transparency advisory board.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.