Bill Text: HI SB2514 | 2022 | Regular Session | Amended
Bill Title: Relating To Probation.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-02-28 - The committee on JDC deferred the measure. [SB2514 Detail]
Download: Hawaii-2022-SB2514-Amended.html
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THE SENATE |
S.B. NO. |
2514 |
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THIRTY-FIRST LEGISLATURE, 2022 |
S.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO PROBATION.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that current state laws relating to certain violations of community supervision are resulting in unnecessary, counterproductive, skyrocketing rates of incarceration and severe overcrowding in local jails and prisons. Based on the Final Report of the House Concurrent Resolution No. 85 Task Force on Prison Reform, which was submitted to the legislature before the 2019 regular session, the incarcerated population is increasing at a much faster rate than the State's general population. From 1978 to 2016, the State's overall population increased by fifty-three per cent, while the State's combined jail and prison population increased by six hundred seventy per cent. In 2018, more than twenty-eight thousand Hawaii residents were incarcerated or under some form of probation, parole, or other form of community supervision. According to States of Incarceration: The Global Context 2021, a report of the Prison Policy Initiative, Hawaii has four hundred thirty-nine incarcerated persons for every one hundred thousand overall persons, or an incarcerated population at 0.439 per cent of the overall population, which is higher than in the Philippines (0.200 per cent), South Africa (0.248 per cent), Vermont (0.288 per cent), Russia (0.329 per cent), Turkey (0.332 per cent) and New York (0.376 per cent).
The legislature also finds that based on weekly population reports, typically one-fourth of all jail and prison admissions in Hawaii are the result of probation or parole technical violations, which are violations of the terms of legal supervision, other than the commission of certain crimes. Technical violations include: missing an appointment with a probation officer; working at a job during times that extended past a curfew; using alcohol or drugs; failing to report a change in address; or associating with another person under legal supervision, even if that other person had no involvement in the defendant's crime. According to Confined and Costly: How Supervision Violations are Filling Prisons and Burdening Budgets, June 2019, a report of the Council of State Governments Justice Center, in 2017 fifty-three per cent of all prison admissions in the State were the result of technical violations.
The legislature further finds that the foregoing practices have unequal impacts. Native Hawaiians, Pacific Islanders, Black people, and poor people are disproportionately overrepresented at every stage of the criminal justice system, including the overcrowded jails and prisons. Research shows that incarceration interferes with employment, housing, health care, child custody, and other life opportunities, and results in negative impacts to families and communities.
The legislature also finds that incarceration
for technical violations of probation is expensive. The State currently spends $219 per day, or
$79,935 per year, to incarcerate just one person. Research shows that, in contrast, community-based
services are a fraction of the cost of incarceration. Research also shows that investment in access
to employment; housing; social services; and voluntary, community-based
substance use treatment, mental health, and re-entry programs reduce recidivism
more effectively than incarceration.
The purpose of this Act is to reform probation procedures to reduce the incarcerated population. Specifically, this Act:
(1) Creates a good time credit system, by which a defendant on probation may reduce the defendant's sentence through compliance with conditions of probation;
(2) Provides that a condition of probation that prohibits unnecessary associations may only apply with respect to certain persons having a connection to the defendant's underlying crime or the prosecution of the crime;
(3) Provides that a condition of probation that prohibits the possession or use of alcohol or unauthorized drugs may only be imposed if it is reasonably related to the crime for which the defendant was convicted;
(4) Provides that substance abuse treatment shall not be required of a defendant on probation if a program is not in the county of the defendant's residence and if the defendant has not been accepted into a program; and
(5) Prohibits incarceration for certain technical violations.
SECTION 2. Chapter 706, Hawaii Revised Statutes, is amended by adding a new section to part II to be appropriately designated and to read as follows:
"§706- Good
time credit system. (1) Notwithstanding
any law to the contrary, there shall be a good time credit system through which
a defendant may earn credit for compliance with the conditions of a sentence of
probation.
(2) A defendant
shall earn a credit that is worth a reduction of
days from the defendant's sentence for every days
the defendant is in compliance with the conditions of a sentence of probation.
(3) Credits may be forfeited, but only for failure
to comply with a condition of a sentence
of probation, and only in proportion to the severity of the defendant's failure
to comply with the condition.
(4) Credits earned under this section shall be earned in addition to any other credits for a criminal sentence that may be earned under applicable law."
SECTION 3. Section 706-624, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:
"(2)
Discretionary conditions. The court
may provide, as further conditions of a sentence of probation, to the extent
that the conditions are reasonably related to the factors set forth in section
706-606 and to the extent that the conditions involve only deprivations of
liberty or property as are reasonably necessary for the purposes indicated in
section 706‑606(2), that the defendant:
(a) Serve a term of imprisonment to be determined by the court at sentencing in class A felony cases under section 707-702, not exceeding two years in class A felony cases under part IV of chapter 712, not exceeding eighteen months in class B felony cases, not exceeding one year in class C felony cases, not exceeding six months in misdemeanor cases, and not exceeding five days in petty misdemeanor cases; provided that notwithstanding any other provision of law, any order of imprisonment under this subsection that provides for prison work release shall require the defendant to pay thirty per cent of the defendant's gross pay earned during the prison work release period to satisfy any restitution order. The payment shall be handled by the adult probation division and shall be paid to the victim on a monthly basis;
(b) Perform a specified number of hours of services to the community as described in section 706-605(1)(d);
(c) Support the defendant's dependents and meet other family responsibilities;
(d) Pay a fine imposed pursuant to section 706-605(1)(b);
(e) Work conscientiously at suitable employment or pursue conscientiously a course of study or vocational training that will equip the defendant for suitable employment;
(f) Refrain from engaging in a specified occupation, business, or profession bearing a reasonably direct relationship to the conduct constituting the crime or engage in the specified occupation, business, or profession only to a stated degree or under stated circumstances;
(g) Refrain from
frequenting specified kinds of places or from associating unnecessarily with specified
persons[,]; provided that the court shall not prohibit association with
any person unless the person has or had any involvement in the crime for which the
defendant was convicted, or in any events leading to the arrest, prosecution, or
conviction of the defendant; including [the] any victim of
the crime, any [witnesses,] witness, regardless of whether [they]
the witness actually testified in the prosecution[,]; any law
enforcement [officers, co-defendants,] officer; any co-defendant;
or any other [individuals with whom contact may adversely affect the
rehabilitation or reformation of the person convicted;] relevant individual;
(h) Refrain from the
use of alcohol or any use of narcotic drugs or controlled substances without a
prescription; provided that this condition may only be imposed if the possession
or use of alcohol or prohibited drugs is reasonably related to the offense for which
the defendant was convicted;
(i) Refrain from possessing a firearm, ammunition, destructive device, or other dangerous weapon;
(j) Undergo available
medical or mental health assessment and treatment, including assessment and
treatment for substance abuse dependency, and remain in a specified facility if
required for that purpose; provided that the court shall not require the defendant
to undergo a substance abuse treatment program if no qualifying substance abuse
treatment program is available in the county in which the defendant resides, or
if no qualifying substance abuse program accepts the defendant, in spite of the
defendant's good faith efforts to enter into qualifying substance abuse treatment
programs;
(k) Reside in a specified place or area or refrain from residing in a specified place or area;
(l) Submit to periodic urinalysis or other similar testing procedure;
(m) Refrain from entering specified geographical areas without the court's permission;
(n) Refrain from leaving the person's dwelling place except to go to and from the person's place of employment, the office of the person's physician or dentist, the probation office, or any other location as may be approved by the person's probation officer pursuant to court order. As used in this paragraph, "dwelling place" includes the person's yard or, in the case of condominiums, the common elements;
(o) Comply
with a specified curfew;
(p) Submit
to monitoring by an electronic monitoring device;
(q) Submit
to a search by any probation officer, with or without a warrant, of the
defendant's person, residence, vehicle, or other sites or property under the
defendant's control, based upon the probation officer's reasonable suspicion
that illicit substances or contraband may be found on the person or in the place
to be searched;
(r) Sign
a waiver of extradition and pay extradition costs as determined and ordered by
the court;
(s) Comply
with a service plan developed using current assessment tools; and
(t) Satisfy
other reasonable conditions as the court may impose."
SECTION 4. Section 706-625, Hawaii Revised Statutes, is amended to read as follows:
"§706-625 Revocation,
modification of probation conditions. (1) The court, on application of a probation
officer, the prosecuting attorney, the defendant, or on its own motion, after a
hearing, may revoke probation except as otherwise provided in [subsection
(7),] this section, reduce or enlarge the conditions of a sentence
of probation, pursuant to the provisions applicable to the initial setting of the
conditions and the provisions of section 706-627.
(2)
The prosecuting attorney, the defendant's probation officer, and the defendant
shall be notified by the movant in writing of the time, place, and date of any
such hearing, and of the grounds upon which action under this section is
proposed. The prosecuting attorney, the
defendant's probation officer, and the defendant may appear in the hearing to
oppose or support the application, and may submit evidence for the court's
consideration. The defendant shall have
the right to be represented by counsel.
For purposes of this section the court shall not be bound by the
(3) The court shall revoke probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or has been convicted of a felony. The court may revoke the suspension of sentence or probation if the defendant has been convicted of another crime other than a felony.
(4) The court shall not impose incarceration upon
a defendant for the defendant's failure to comply with a condition of probation
if the defendant's failure to comply constitutes solely a technical violation.
(5) The court shall not revoke probation based on
the defendant's failure to undergo and complete a substance abuse treatment
program if there is no qualifying substance abuse treatment program available in
the county in which the defendant resides, or if no qualifying substance abuse program
accepted the defendant, in spite of the defendant's good faith efforts to enter
into qualifying substance abuse treatment programs.
(6) The court shall not revoke probation based on
the defendant's failure to refrain from the use of alcohol, or any use of narcotic
drugs or controlled substances without a prescription, unless the possession or
use of alcohol or prohibited drugs is reasonably related to the offense for which
the defendant was convicted.
[(4)] (7) The court may modify the requirements imposed
on the defendant or impose further requirements, if it finds that such action
will assist the defendant in leading a law-abiding life.
[(5)] (8) When the court revokes probation, it may
impose on the defendant any sentence that might have been imposed originally
for the crime of which the defendant was convicted.
[(6) As used in this section,
"conviction" means that a judgment has been pronounced upon the verdict.
(7)] (9) The court may require a defendant to undergo
and complete a substance abuse treatment program when the defendant has
committed a violation of the terms and conditions of probation involving
possession or use, not including to distribute or manufacture as defined in
section 712-1240, of any dangerous drug, detrimental drug, harmful drug, intoxicating
compound, marijuana, or marijuana concentrate, as defined in section 712-1240,
unlawful methamphetamine trafficking as provided in section [712-1240.6,]
712-1240.7, or involving possession or use of drug paraphernalia under
section 329-43.5. If the defendant fails
to complete the substance abuse treatment program or the court determines that
the defendant cannot benefit from any other suitable substance abuse treatment
program, the defendant shall be subject to revocation of probation, except as
provided in subsection (5), and incarceration[.], except as provided
in subsection (4). The court may require
the defendant to:
(a) Be assessed by a certified substance abuse counselor for substance abuse dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index;
(b) Present a proposal to receive substance abuse treatment in accordance with the treatment plan prepared by a certified substance abuse counselor through a substance abuse treatment program that includes an identified source of payment for the treatment program;
(c) Contribute to the cost of the substance abuse treatment program; and
(d) Comply with any other terms and conditions of probation.
[As used in this subsection,
"substance abuse treatment program" means drug or substance abuse
treatment services provided outside a correctional facility by a public,
private, or nonprofit entity that specializes in treating persons who are
diagnosed with substance abuse or dependency and preferably employs licensed professionals
or certified substance abuse counselors.]
(10) Nothing in [this subsection] subsections
(5) or (9) shall be construed to give rise to a cause of action against the
State, a state employee, or a treatment provider.
(11) As used in this section:
"Convicted" means that a judgment has been pronounced upon the verdict.
"Substance abuse treatment
program" means drug or substance abuse treatment services provided outside
a correctional facility by a public, private, or nonprofit entity that specializes
in treating persons who are diagnosed with substance abuse or dependency and preferably
employs licensed professionals or certified substance abuse counselors.
"Technical violation" means any conduct that violates a condition of community supervision, other than the commitment of a new misdemeanor offense under chapter 134, chapter 707, or section 709-906, or a new felony offense."
SECTION 5. Section 706-626, Hawaii Revised Statutes, is amended to read as follows:
"§706-626 Summons or arrest of defendant
on probation; commitment without bail.
[At] (1) The following may
apply any time before the discharge of the defendant or the termination of
the period of probation[:], to the extent applicable:
[(1)] (a) The court may, in connection with the
probation, summon the defendant to appear before it or may issue a warrant for
the defendant's arrest;
(b) A probation or law enforcement officer, having probable cause to believe that the defendant has failed to comply with a requirement imposed as a condition of the order, may, if the failure to comply was a technical violation, issue the defendant a written notice of a court hearing that states the defendant's alleged violation and the date, time, location and purpose of the hearing;
[(2)] (c) A probation or law enforcement officer,
having probable cause to believe that the defendant has failed to comply with a
requirement imposed as a condition of the order, may, if the failure to comply
was not a technical violation, arrest the defendant without a warrant,
and the defendant shall be held in
custody pending the posting of bail pursuant to a bail schedule established by
the court, or until a hearing date is set; provided that when the punishment
for the original offense does not exceed one year, the probation or law enforcement
officer may admit the probationer to bail; or
[(3)] (d) The court, if there is probable cause
to believe that the defendant has committed another crime or has been held to
answer therefor, may commit the defendant without bail, pending a determination
of the charge by the court having jurisdiction thereof.
(2) As used in this section, "technical violation" has the same meaning as in section 706-625."
SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect upon its approval.
Report Title:
Probation; Crimes; Conditions; Revocation; Substance Abuse
Description:
Creates a good time credit system, by which criminal defendant on probation may reduce their time on probation through compliance with conditions of probation. Provides that a condition of probation that prohibits unnecessary associations may only apply with respect to certain persons having a connection to the underlying crime or the prosecution of the crime. Provides that a condition that prohibits the possession or use of alcohol or unauthorized drugs may only be imposed if it reasonably related to the crime for which the defendant was convicted. Provides that substance abuse treatment shall not be required of a defendant on probation if a program is not available in the county of the defendant's residence or if the defendant has not been accepted into a program. Prohibits incarceration for certain technical violations. (SD1)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
