Bill Text: HI SB2524 | 2020 | Regular Session | Introduced
Bill Title: Relating To Sentencing.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-23 - Referred to PSM, JDC. [SB2524 Detail]
Download: Hawaii-2020-SB2524-Introduced.html
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THE SENATE |
S.B. NO. |
2524 |
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THIRTIETH LEGISLATURE, 2020 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to sentencing.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to repeal mandatory minimum periods of imprisonment for certain offenses or under certain circumstances.
SECTION 2. Section 706-606.3, Hawaii Revised Statutes, is amended by amending subsection (7) to read as follows:
"(7) Notwithstanding sections [706-606.5,]
706-620, 706-659, and 706-660[, and 706-660.2], a defendant
considered for the expedited sentencing program under this section when
sentence is imposed may be sentenced to a term of probation pursuant to section
706-624; provided that if the defendant is sentenced to a term of imprisonment
as a condition of probation, the term of imprisonment may allow for the
defendant's retention of employment."
SECTION 3. Section 706-620, Hawaii Revised Statutes, is amended to read as follows:
"§706-620 Authority to withhold sentence of imprisonment. A defendant who has been convicted of a crime may be sentenced to a term of probation unless:
(1) The crime is first or second degree murder or attempted first or second degree murder;
(2) The crime is a class A felony, except class A felonies defined in chapter 712, part IV, and by section 707‑702; or
[(3) The defendant
is a repeat offender under section 706‑606.5;
(4) The defendant
is a felony firearm offender as defined in section 706-660.1(2);
(5) The crime
involved the death of or the infliction of serious or substantial bodily injury
upon a child, an elder person, or a handicapped person under section 706-660.2;
or
(6)] (3) The
crime is cruelty to animals where ten or more pet animals were involved under
section 711-1108.5 or 711‑1109."
SECTION 4. Section 706-622.5, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:
"(2) A person eligible under subsection (1) may be
sentenced to probation to undergo and complete a substance abuse treatment
program if the court determines that the person can benefit from substance
abuse treatment and[, notwithstanding that the person would be subject to
sentencing as a repeat offender under section 706-606.5, the person] should
not be incarcerated to protect the public.
If the person fails to complete the substance abuse treatment program
and the court determines that the person cannot benefit from any other suitable
substance abuse treatment program, the person shall be subject to sentencing
under the applicable section under this part.
As a condition of probation under this subsection, the court may direct
the person to undergo and complete substance abuse treatment under the
supervision of the drug court if the person has a history of relapse in
treatment programs. The court may
require other terms and conditions of probation, including requiring that the
person contribute to the cost of the substance abuse treatment program, comply
with deadlines for entering into the substance abuse treatment program, and
reside in a secure drug treatment facility."
SECTION 5. Section 706-622.9, Hawaii Revised Statutes, is amended by amending subsections (1) and (2) to read as follows:
"(1) Notwithstanding section 706-620(3), a person
convicted for the first time of any class C felony property offense under
chapter 708 who has not previously been sentenced under [section 706-606.5,]
section 706-622.5[,] or this section is eligible to be sentenced to
probation under subsection (2) if the person meets the following criteria:
(a) The court has determined that the person is nonviolent after reviewing the person's criminal history, the factual circumstances of the offense for which the person is being sentenced, and any other relevant information;
(b) The person has been assessed by a certified substance abuse counselor to be in need of substance abuse treatment due to dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index;
(c) The court has determined that the offense for which the person is being sentenced is related to the person's substance abuse dependency or addiction;
(d) The court has determined that the person is genuinely motivated to obtain and maintain substance abuse treatment, based upon consideration of the person's history, including whether substance abuse treatment has previously been afforded to the person, and an appraisal of the person's current circumstances and attitude; and
(e) Except for those persons directed to substance abuse treatment under the supervision of the drug court, the person presents 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.
(2)
A person eligible under subsection (1) may be sentenced to probation to
undergo and complete a substance abuse treatment program if the court
determines that the person can benefit from substance abuse treatment and[,
notwithstanding that the person would be subject to sentencing as a repeat
offender under section 706-606.5, the person] should not be incarcerated to
protect the public. If the person fails
to complete the substance abuse treatment program and the court determines that
the person cannot benefit from any other suitable substance abuse treatment
program, the person shall be sentenced as provided in this part. As a condition of probation under this
subsection, the court may direct the person to undergo and complete substance
abuse treatment under the supervision of the drug court if the person has a
history or relapse in treatment programs.
The court may require other terms and conditions of probation, including
requiring that the person contribute to the cost of the substance abuse
treatment program, comply with deadlines for entering into the substance abuse
treatment program, and reside in a secure drug treatment facility."
SECTION 6. Section 706-656, Hawaii Revised Statutes, is amended to read as follows:
"§706-656 Terms of imprisonment for first and second degree murder and attempted first and second degree murder. (1) Persons eighteen years of age or over at the time of the offense who are convicted of first degree murder or first degree attempted murder shall be sentenced to life imprisonment without the possibility of parole.
As part of such 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].
Persons under the age of eighteen years at the time of the offense who are convicted of first degree murder or first degree attempted murder shall be sentenced to life imprisonment with the possibility of parole.
(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[;
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 7. 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 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 in
accordance with section 706-669."
SECTION 8. 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 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 in accordance with section 706-669."
SECTION 9. Section 706-665, Hawaii Revised Statutes, is amended to read as follows:
"§706-665 Former conviction in
another jurisdiction. For purposes
of sections [706-606.5,] 706-620[,] and 706-662(1), a conviction
of the commission of a crime in another jurisdiction shall constitute a
previous conviction. Such conviction
shall be deemed to have been of a felony if sentence of death or of
imprisonment in excess of one year was authorized under the law of such other
jurisdiction. Such a conviction shall be
graded, for purposes of section 706-620 by comparing the maximum imprisonment
authorized under the law of such other jurisdiction with the maximum
imprisonment authorized for the relevant grade of felony."
SECTION 10. Section 706-666, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:
"(1) An adjudication by a court of competent
jurisdiction that the defendant committed a crime constitutes a conviction for
purposes of sections [706-606.5,] 706-662[,] and 706-665,
although sentence or the execution thereof was suspended, provided that the
defendant was not pardoned on the ground of innocence."
SECTION 11. 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 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, promoting a dangerous drug in the first degree pursuant to section
712-1241 and methamphetamine was the drug upon which the conviction was
predicated, or section 712-1240.8 as that section was in effect prior to July
1, 2016, 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, promoting a dangerous drug in the first degree pursuant to section 712-1241
and methamphetamine was the drug upon which the conviction was predicated, or
section 712-1240.8, as that section was in effect prior to July 1, 2016, 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, promoting a dangerous drug in the first degree pursuant to
section 712-1241 and methamphetamine was the drug upon which the conviction was
predicated, or section 712-1240.8 as that section was in effect prior to July
1, 2016, the mandatory minimum term of imprisonment shall be twenty years]."
SECTION 12. Section 706-606.5, Hawaii Revised Statutes, is repealed.
["§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, any class B felony, or any of the following class C felonies:
(a) Section 134-7
relating to persons prohibited from owning, possessing, or controlling firearms
or ammunition;
(b) Section 134-8
relating to ownership, etc., of certain prohibited weapons;
(c) Section 134-17
only as it relates to providing false information or evidence to obtain a
permit under section 134-9;
(d) Section 188-23
relating to possession or use of explosives, electrofishing devices, and poisonous
substances in state waters;
(e) Section
386-98(d)(1) relating to fraud violations and penalties;
(f) Section
431:2-403(b)(2) relating to insurance fraud;
(g) Section 707-703
relating to negligent homicide in the second degree;
(h) Section 707-711
relating to assault in the second degree;
(i) Section 707-713
relating to reckless endangering in the first degree;
(j) Section 707-716
relating to terroristic threatening in the first degree;
(k) Section 707-721
relating to unlawful imprisonment in the first degree;
(l) Section 707-732
relating to sexual assault in the third degree;
(m) Section 707-752
relating to promoting child abuse in the third degree;
(n) Section 707-757
relating to electronic enticement of a child in the second degree;
(o) Section 707-766
relating to extortion in the second degree;
(p) Section 708-811
relating to burglary in the second degree;
(q) Section 708-821
relating to criminal property damage in the second degree;
(r) Section 708-831
relating to theft in the second degree;
(s) Section
708-835.5 relating to theft of livestock;
(t) Section 708-836
relating to unauthorized control of propelled vehicle;
(u) Section
708-839.55 relating to unauthorized possession of confidential personal
information;
(v) Section
708-839.8 relating to identity theft in the third degree;
(w) Section 708-852
relating to forgery in the second degree;
(x) Section 708-854
relating to criminal possession of a forgery device;
(y) Section 708-875
relating to trademark counterfeiting;
(z) Section
710-1071 relating to intimidating a witness;
(aa) Section
711-1103 relating to riot;
(bb) Section
712-1221 relating to promoting gambling in the first degree;
(cc) Section
712-1224 relating to possession of gambling records in the first degree;
(dd) Section
712-1247 relating to promoting a detrimental drug in the first degree; or
(ee) 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, any class B felony, 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 as provided in subsection
(2).
(2) A mandatory minimum period of imprisonment
without possibility of parole during that period shall be imposed pursuant to
subsection (1), 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--ten years;
(ii) Where
the instant conviction is for a class A felony--six years, eight months;
(iii) Where
the instant conviction is for a class B felony--three years, four months; and
(iv) Where
the instant conviction is for a class C felony offense enumerated above--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--twenty years;
(ii) Where
the instant conviction is for a class A felony--thirteen years, four months;
(iii) Where
the instant conviction is for a class B felony--six years, eight months; and
(iv) Where
the instant conviction is for a class C felony offense enumerated above--three
years, four
months; and
(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--thirty years;
(ii) Where
the instant conviction is for a class A felony--twenty years;
(iii) Where
the instant conviction is for a class B felony--ten years; and
(iv) Where
the instant conviction is for a class C felony offense enumerated above--five
years.
(3) Except as provided in subsection (4), a
person shall not be sentenced to a mandatory minimum period of imprisonment under
this section unless the instant felony offense was committed during the period
as follows:
(a) Within twenty
years after a prior felony conviction where the prior felony conviction was for
murder in the first degree or attempted murder in the first degree;
(b) Within twenty
years after a prior felony conviction where the prior felony conviction was for
murder in the second degree or attempted murder in the second degree;
(c) Within twenty
years after a prior felony conviction where the prior felony conviction was for
a class A felony;
(d) Within ten
years after a prior felony conviction where the prior felony conviction was for
a class B felony;
(e) Within five
years after a prior felony conviction where the prior felony conviction was for
a class C felony offense enumerated above;
(f) Within the
maximum term of imprisonment possible after a prior felony conviction of
another jurisdiction.
(4) If a person was sentenced for a prior felony
conviction to a special term under section 706-667, then the person shall not
be sentenced to a mandatory minimum period of imprisonment under this section
unless the instant felony offense was committed during that period as follows:
(a) Within eight
years after a prior felony conviction where the prior felony conviction was for
a class A felony;
(b) Within five
years after the prior felony conviction where the prior felony conviction was
for a class B felony;
(c) Within four
years after the prior felony conviction where the prior felony conviction was
for a class C felony offense enumerated above.
(5) Notwithstanding any other law to the
contrary, any person convicted of any of the following misdemeanor offenses:
(a) Section 707-712
relating to assault in the third degree;
(b) Section 707-717
relating to terroristic threatening in the second degree;
(c) Section 707-733
relating to sexual assault in the fourth degree;
(d) Section 708-822
relating to criminal property damage in the third degree;
(e) Section 708-832
relating to theft in the third degree; and
(f) Section 708-833.5(2)
relating to misdemeanor shoplifting,
and who has been convicted of any of the offenses
enumerated above on at least three prior and separate occasions within three
years of the date of the commission of the present offense, shall be sentenced
to no less than nine months of imprisonment.
Whenever a court sentences a defendant under this subsection for an
offense under section 707-733, the court shall order the defendant to
participate in a sex offender assessment and, if recommended based on the assessment,
participate in the sex offender treatment program established by chapter 353E.
(6) The sentencing court may impose the above sentences
consecutive to any sentence imposed on the defendant for a prior conviction,
but the sentence shall be imposed concurrent to the sentence imposed for the
instant conviction. The court may impose
a lesser mandatory minimum period of imprisonment without possibility of parole
than that mandated by this section where the court finds that strong mitigating
circumstances warrant the action. Strong
mitigating circumstances shall include, but shall not be limited to the
provisions of section 706-621. The court
shall provide a written opinion stating its reasons for imposing the lesser
sentence.
(7) A person who is imprisoned in a correctional
institution pursuant to subsection (1) shall not be paroled prior to the
expiration of the mandatory minimum term of imprisonment imposed pursuant to
subsection (1).
(8) For purposes of this section:
(a) Convictions
under two or more counts of an indictment or complaint shall be considered a
single conviction without regard to when the convictions occur;
(b) A prior
conviction in this or another jurisdiction shall be deemed a felony conviction
if it was punishable by a sentence of death or of imprisonment in excess of one
year; and
(c) A conviction
occurs on the date judgment is entered."]
SECTION 13. Section 706-660.1, Hawaii Revised Statutes, is repealed.
["§706-660.1 Sentence of
imprisonment for use of a firearm, semiautomatic firearm, or automatic firearm
in a felony. (1) A person convicted of a felony, where the
person had a firearm in the person's possession or threatened its use or used
the firearm while engaged in the commission of the felony, whether the firearm
was loaded or not, and whether operable or not, may in addition to the indeterminate
term of imprisonment provided for the grade of offense be sentenced to a
mandatory minimum term of imprisonment without possibility of parole or probation
the length of which shall be as follows:
(a) For murder in
the second degree and attempted murder in the second degree--up to fifteen
years;
(b) For a class A
felony--up to ten years;
(c) For a class B felony--up
to five years; and
(d) For a class C felony--up
to three years.
The sentence of imprisonment for a felony
involving the use of a firearm as provided in this subsection shall not be
subject to the procedure for determining minimum term of imprisonment
prescribed under section 706-669; provided further that a person who is
imprisoned in a correctional institution as provided in this subsection shall
become subject to the parole procedure as prescribed in section 706-670 only
upon the expiration of the term of mandatory imprisonment fixed under paragraph
(a), (b), (c), or (d).
(2) A person convicted of a second firearm felony
offense as provided in subsection (1) where the person had a firearm in the
person's possession or threatened its use or used the firearm while engaged in
the commission of the felony, whether the firearm was loaded or not, and
whether operable or not, shall in addition to the indeterminate term of
imprisonment provided for the grade of offense be sentenced to a mandatory
minimum term of imprisonment without possibility of parole or probation the
length of which shall be as follows:
(a) For murder in
the second degree and attempted murder in the second degree--twenty years;
(b) For a class A
felony--thirteen years, four months;
(c) For a class B
felony--six years, eight months; and
(d) For a class C
felony--three years, four months.
The sentence of imprisonment for a second felony
offense involving the use of a firearm as provided in this subsection shall not
be subject to the procedure for determining a minimum term of imprisonment
prescribed under section 706-669; provided further that a person who is
imprisoned in a correctional institution as provided in this subsection shall
become subject to the parole procedure as prescribed in section 706-670 only
upon expiration of the term of mandatory imprisonment fixed under paragraph
(a), (b), (c), or (d).
(3) A person convicted of a felony, where the
person had a semiautomatic firearm or automatic firearm in the person's possession
or used or threatened its use while engaged in the commission of the felony,
whether the semiautomatic firearm or automatic firearm was loaded or not, and
whether operable or not, shall in addition to the indeterminate term of
imprisonment provided for the grade of offense be sentenced to a mandatory
minimum term of imprisonment without possibility of parole or probation the
length of which shall be as follows:
(a) For murder in
the second degree and attempted murder in the second degree--twenty years;
(b) For a class A
felony--fifteen years;
(c) For a class B
felony--ten years; and
(d) For a class C
felony--five years.
The sentence of imprisonment for a felony
involving the use of a semiautomatic firearm or automatic firearm as provided
in this subsection shall not be subject to the procedure for determining a
minimum term of imprisonment prescribed under section 706-669; provided further
that a person who is imprisoned in a correctional institution as provided in
this subsection shall become subject to the parole procedure as prescribed in
section 706-670 only upon expiration of the term of mandatory imprisonment
fixed under paragraph (a), (b), (c), or (d).
(4) In this section:
"Automatic firearm" has
the same meaning defined in section 134-1.
"Firearm" has the same
meaning defined in section 134-1 except that it does not include "semiautomatic
firearm" or "automatic firearm".
"Semiautomatic firearm"
means any firearm that uses the energy of the explosive in a fixed cartridge to
extract a fired cartridge and chamber a fresh cartridge with each single pull
of the trigger."]
SECTION 14. Section 706-660.2, Hawaii Revised Statutes, is repealed.
["§706-660.2 Sentence of imprisonment for offenses
against children, elder persons, or handicapped persons. (1)
Notwithstanding section 706-669, if not subjected to an extended term of
imprisonment pursuant to section 706-662, a person shall be sentenced to a
mandatory minimum term of imprisonment without possibility of parole as
provided in subsection (2) if:
(a) The person, in
the course of committing or attempting to commit a felony, causes the death or
inflicts serious or substantial bodily injury upon another person who is:
(i) Sixty
years of age or older;
(ii) Blind,
a paraplegic, or a quadriplegic; or
(iii) Eight
years of age or younger; and
(b) Such disability
is known or reasonably should be known to the defendant.
(2) The term of imprisonment for a person
sentenced pursuant to subsection (1) shall be as follows:
(a) For murder in
the second degree--fifteen years;
(b) For a class A
felony--six years, eight months;
(c) For a class B
felony--three years, four months;
(d) For a class C felony--one
year, eight months."]
SECTION 15. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 16. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 17. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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Report Title:
Penal Code; Sentences of Imprisonment; Mandatory Minimum
Description:
Repeals mandatory minimum periods of imprisonment for certain offenses or under certain circumstances.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
