Bill Text: HI SCR110 | 2018 | Regular Session | Introduced

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Bill Title: Requesting The Legislative Reference Bureau To Conduct A Study On The Potential Impact Of The Reclassification Of The Offense Of Promoting A Dangerous Drug In The Third Degree On State Administrative And Judicial Systems And Local Law Enforcement.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2018-03-15 - Referred to JDC/PSM, WAM. [SCR110 Detail]

Download: Hawaii-2018-SCR110-Introduced.html

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THE SENATE	S.C.R. NO.	110
TWENTY-NINTH LEGISLATURE, 2018
STATE OF HAWAII

SENATE CONCURRENT

RESOLUTION

 

 

REQUESTING THE LEGISLATIVE REFERENCE BUREAU TO CONDUCT A STUDY ON THE POTENTIAL IMPACT Of THE reclassification of the offense of PROMOTING A dangerous drug in the third Degree on State ADMINISTRATIVE AND JUDICIAL SYSTEMS AND Local Law Enforcement.

 

 

     WHEREAS, despite longstanding policies that enforce illicit drug prohibition and impose some of the world's harshest penalties for drug possession and sales, illicit drug use in the United States has been steady, and increasing in the case of heroin, according to results from the 2016 National Survey on Drug Use and Health; and

 

     WHEREAS, in 2017, the Department of Health's State of Hawai‘i Epidemiological Profile: Selected Youth and Adult Drug Indicators reported similar trends in drug usage in the State, including higher usage by adolescents, between the ages of eighteen and twenty-five, than adults; and

 

     WHEREAS, arrests, convictions, and incarceration for felony drug possession incur significant costs to the Judiciary, Department of Public Safety, and various county police departments; and

 

     WHEREAS, multi-year probation and parole supervision of those convicted of felony drug possession incur significant costs to the Judiciary and Department of Public Safety; and

 

     WHEREAS, in 2016, the United States Surgeon General's report, Facing Addiction in America: The Surgeon General's Report on Alcohol, Drugs, and Health, highlights the need to move from a "criminal justice-based model for addressing substance use-related problems", to a "public health approach [seeking] to improve the health and safety of the population by addressing underlying social, environmental, and economic determinants of substance abuse and its consequences"; and

 

     WHEREAS, the State, with the adoption of the Hawaii Opioid Initiative and the passage of several laws related to medical cannabis, opioid overdoses, and other drug related concerns, has begun to reassess the efficacy and cost-benefit of a punitive approach to this public health problem; and

 

     WHEREAS, as part of this realignment, the Legislature enacted Act 72, Session Laws of Hawaii 2017, to decriminalize the prior felony offense of drug paraphernalia possession; and

 

     WHEREAS, in 2017, the Hawaii Paroling Authority reported that the number of individuals sentenced due to the offense of drug paraphernalia, one hundred twenty-four, is second in volume only to the number of individuals sentenced due to the offense of promoting a dangerous drug in the third degree, one hundred forty-seven individuals, sentenced to imprisonment of about two and one-half years; and

 

     WHEREAS, at any given moment, dozens of individuals are detained in pretrial, mostly due to the inability to post bail, for the offense of promoting a dangerous drug in the third degree; and

 

     WHEREAS, those convicted of a felony due to drug possession face many collateral consequences even after successful completion of probation or parole, including difficulties in obtaining employment and housing, procuring loans for higher education, and maintaining eligibility for public assistance; and

 

     WHEREAS, harm reduction services and community-based, medically-supervised treatment should be more widely available to those experiencing problems with substance abuse, including those with a co-occurring mental health condition; and

 

     WHEREAS, in recent years many states, including Alaska, California, Delaware, Indiana, Maryland, Minnesota, Mississippi, Oregon, Oklahoma, South Dakota, and Utah, have made drug possession a misdemeanor offense; and

 

     WHEREAS, according to the Substance Abuse and Mental Health Services Administration, many states that treat possession of a dangerous drug as a misdemeanor have slightly lower rates of illicit drug use and higher rates of admission to drug treatment than states that consider it a felony; and

 

     WHEREAS, the various state drug courts, Community Outreach Court, Law Enforcement Assisted Diversion (LEAD), and related programs alleviate prison overcrowding by offering effective rehabilitation options for qualified defendants, such as community supervision to obtain substance abuse treatment in lieu of incarceration; and

 

     WHEREAS, H.C.R. No. 85, H.D. 2, S.D. 1, Regular Session of 2016, requested the Chief Justice to convene a task force to examine effective incarceration policies, and the task force issued an interim report stating, "Hawaii must chart a new course and transition from a punitive to a rehabilitative correctional model"; and

 

     WHEREAS, H.C.R. No. 134, H.D. 1, Regular Session of 2017, also requested the Judiciary to convene a task force to examine criminal pretrial practices; and

 

     WHEREAS, in 2018, the American Civil Liberties Union of Hawai‘i released a report entitled, As Much Justice As You Can Afford – Hawaii's Accused Face an Unequal Bail System, which highlights the average bail amount for a class C felony, such as promoting a dangerous drug in the third degree, is $20,000, which few can afford; and

 

     WHEREAS, pretrial detainees charged with, and inmates convicted of, promotion of a dangerous drug in the third degree constitute a large share of the individuals who contribute to the inhumane overcrowding of the State's correctional centers, particularly the Oahu Community Correctional Center; and

 

     WHEREAS, the Research and Statistics Branch of the Crime Prevention and Justice Assistance Division of the Department of the Attorney General noted in Crime in Hawaii 2016: A Review of Uniform Crime Reports that there were almost as many arrests statewide for felony drug possession as violent crime from 2007 to 2016; and

 

     WHEREAS, the same report supports similar findings by a report conducted by the Office of Hawaiian Affairs entitled, The Disparate Treatment of Native Hawaiians in the Criminal Justice System, which concluded that despite similar rates of drug use to other groups, Native Hawaiians are disproportionately arrested for offenses such as promoting a dangerous drug in the third degree; and

 

     WHEREAS, according to the National Resource Center on Children and Families of the Incarcerated, the incarceration of a parent is an adverse childhood experience distinguishable from other adverse childhood experiences by "[t]he unique combination of trauma, shame, and stigma"; and

 

     WHEREAS, as the Sentencing Project states in a fact sheet, Incarcerated Women and Girls, women, especially those of color, are increasingly being criminalized by drug laws and are more likely than men to be incarcerated for a drug offense; and

 

     WHEREAS, the homeless population is particularly vulnerable to being criminalized by drug laws, with a disproportionate share of arrestees on Oahu being houseless and suffering from a drug use or mental health issue; and

 

     WHEREAS, documented and undocumented immigrants are potentially deportable for drug possession offenses, particularly state felonies such a promoting a dangerous drug in the third degree, and given the State's stance against the increasingly anti-immigrant rhetoric and action emanating from the current federal administration, this treatment of immigrants convicted of non-violent drug possession offenses is severely disproportionate; and

 

     WHEREAS, the Human Rights Watch and American Civil Liberties Union concluded in a 2016 report, Every 25 Seconds:  The Human Toll of Criminalizing Drug Use in the United States, that nearly half of over one million drug possession arrests nationwide are for substances other than cannabis, and arrest rates vary starkly from county to county despite similar rates of use; and

 

     WHEREAS, the Global Commission on Drug Policy urges governments to "[s]top criminalizing people for drug use and possession"; and

 

     WHEREAS, the World Health Organization recommends, "[c]ountries should work toward developing policies and laws that decriminalize injection and other use of drugs and, thereby, reduce incarceration"; and

 

     WHEREAS, the American Public Health Association urges the federal and state governments to "[e]liminate federal and state criminal penalties and collateral sanctions for personal drug use and possession offenses"; and

 

     WHEREAS, the Organization of American States declares, "Decriminalization of drug use needs to be considered as a core element in any public health strategy"; and

 

     WHEREAS, Human Rights Watch declares, "Drug control policies that impose criminal penalties for personal drug use undermine basic human rights...[s]ubjecting people to criminal sanctions for the personal use of drugs, or for possession of drugs for personal use, infringes on their autonomy and right to privacy...[t]he criminalization of drug use has undermined the right to health...[g]overnments should rely instead on non-penal regulatory and public health policies"; and

 

     WHEREAS, the National Latino Congress urges federal and state governments "to follow the successful example of countries like Portugal that have decriminalized personal adult possession and use of all drugs, which has improved the health of drug users, reduced incarceration and death, and saved taxpayer money with no negative consequences to society"; and

 

     WHEREAS, the International Federation of the Red Cross and Red Crescent Societies declared to the United Nations Commission on Narcotic Drugs that "drug use is a health issue.  It is an issue of human rights.  It cannot be condoned, but neither should it be criminalized"; and

 

     WHEREAS, the Legislative Reference Bureau in its recent report, Panacea or Pipe Dream: Does Portugal’s Policy Translate for Hawaii?, pursuant to H.C.R. No. 127, H.D. 1, S.D. 1, Regular Session of 2016, did not specifically look at the potential impact of amending existing laws related to dangerous drugs, as defined in section 712-1240, Hawaii Revised Statutes; and

 

     WHEREAS, the benefits of reducing possession of certain drugs from a felony to a misdemeanor include reductions in the number of persons arrested and incarcerated; redirecting law enforcement resources to prevent serious and violent crime; diminishing unjust racial disparities in drug law enforcement and sentencing, incarceration, and related health characteristics and outcomes; minimizing the social exclusion of individuals who use drugs and creating a climate in which they are less fearful of seeking and accessing treatment, and protecting people from the wide-ranging and debilitating consequences of a criminal conviction; now, therefore,

 

     BE IT RESOLVED by the Senate of the Twenty-ninth Legislature of the State of Hawaii, Regular Session of 2018, the House of Representatives concurring, that the Legislative Reference Bureau is requested to conduct a study on the potential impact of reclassifying the penalty for promoting a dangerous drug in the third degree from a class C felony to a misdemeanor on state administration and judicial systems and local law enforcement; and

 

     BE IT FURTHER RESOLVED that the study include:

 

     (1)  The potential impact on state administrative and judicial systems and local law enforcement by amending the existing statute of promoting a dangerous drug in the third degree;

 

     (2)  An evaluation of the ability of an individual charged with a misdemeanor instead of a class C felony to post bail;

 

     (3)  An assessment of other states' decisions to reduce the penalty for drug possession offenses from a felony to a misdemeanor; and

 

     (4)  An analysis on how existing laws impact the State's population, particularly youth and a particular gender, as well as disparate arrest and incarceration rates across racial and ethnic groups and various counties; and

 

     BE IT FURTHER RESOLVED that the Judiciary, Department of Public Safety, Office of the Public Defender, various county police departments, and various offices of the county prosecuting attorneys are requested to provide statistics and other information as may be requested by the Legislative Reference Bureau; and

 

     BE IT FURTHER RESOLVED that the Bureau may request input from independent organizations, both inside and outside the State; and

 

     BE IT FURTHER RESOLVED that the Legislative Reference Bureau is requested to submit a report of its findings and recommendations, including any proposed legislation, to the Legislature no later than twenty days prior to the convening of the Regular Session of 2019; and

 

     BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Director of the Legislative Reference Bureau, Chief Justice of the Supreme Court of Hawaii, Administrative Director of the Courts, Director of Public Safety, Office of the Public Defender, Chief of Police of each county in the State, and Prosecuting Attorney of each county in the State.

 

 

 

	OFFERED BY:	_____________________________

Report Title: 

Drug Offense; Misdemeanor; Study; Legislative Reference Bureau