THE SENATE

S.C.R. NO.

141

TWENTY-THIRD LEGISLATURE, 2005

S.D. 1

STATE OF HAWAII

 
   


SENATE CONCURRENT

RESOLUTION

 

REQUESTING THE ESTABLISHMENT OF A TASK FORCE TO DETERMINE WHETHER CLASSIFICATION OF THE OFFENSES OF ASSAULT AND TERRORISTIC THREATENING BASED ON THE OCCUPATION OF THE VICTIM IS STILL NECESSARY.

 

WHEREAS, in 1966, the Judicial Council of Hawaii undertook the task of preparing, for consideration by the Legislature, a proposed revision of the penal laws of the State of Hawaii and presented a proposed draft of the Hawaii Penal Code in 1970 that was intended to bring criminal law in step with modern penological theory; and

WHEREAS, the Hawaii Penal Code was adopted in 1972; and

WHEREAS, neither the proposed draft nor the Penal Code as enacted graded offenses based on the occupation or status of the victim, even in the case of murder, but instead focused on the state of mind of the offender, the offender's conduct, and the result of the offender's conduct; and

WHEREAS, in 1979, the Legislature amended the law regarding assault in the second degree, a class C felony, to include assaults against on-duty correctional workers, even if the nature and extent of the injury sustained did not otherwise meet the requirements for that grade of offense; and

WHEREAS, the Legislature explained that the reason for the change was to deter the rising number of assaults against correctional workers; and

WHEREAS, in 1987, the Legislature further amended the law regarding assault in the second degree to include assaults against public school educational workers, again, without regard to whether the nature and extent of the injury sustained otherwise met the requirements for that grade of offense; and

WHEREAS, the Legislature explained that the reason for the change was to give educational workers added protection by making it a crime to assault them; and

WHEREAS, in 1979, the Legislature amended the law regarding terroristic threatening, a misdemeanor, to create two degrees of terroristic threatening, first degree being a class C felony and second degree being a misdemeanor; and

WHEREAS, terroristic threatening in the first degree was defined as, among other things, terroristic threatening of a public servant, even though the offender's state of mind, the offender's conduct, and the result of the offender's conduct was not otherwise distinguishable from that which constituted terroristic threatening in the second degree; and

WHEREAS, the Legislature explained that the reason for the change was that raising the penalty would provide an incentive for vigorous prosecution and act as a deterrent against such offenses; and

WHEREAS, in 1987, the Legislature amended the offense of terroristic threatening in the first degree to include public school educational workers, although the definition of the offense and the proof required to obtain a conviction was not changed; and

WHEREAS, the Legislature explained that the reason for the change was to make our school environments safer and to better enable prosecuting attorneys to obtain convictions; and

WHEREAS, in 1990, the Legislature created a new offense of assault against a police officer, a misdemeanor with a mandatory minimum prison term of thirty days; and

WHEREAS, the Legislature explained that the reason for creation of the new offense was to afford a police officer some additional measure of protection, even while acknowledging that the law might not have any deterrent effect because assaults on police officers usually happen in the heat of the moment; and

WHEREAS, in 2003, the Legislature upgraded the offense of assault against a police officer to a class C felony and expanded it to include other law enforcement officers, again, without regard to whether the nature and extent of the injury sustained otherwise met the requirements for that grade of offense; and

WHEREAS, the Legislature explained that the reason for the change was that terroristic threatening of a police officer was already a felony, that assault of an on-duty correctional worker or of a public school educational worker was also a class C felony, and that law enforcement officers deserved the same protection as on-duty correctional workers and public school educational workers; and

WHEREAS, the Legislature is regularly asked to further amend the laws regarding assault and terroristic threatening to include, for example, health care workers and athletic contest officials; and

WHEREAS, it appears that this trend of bootstrapping additional categories of victims into the more serious offenses simply because similar categories have already been so included may eventually result in the exception swallowing the rule; now, therefore,

BE IT RESOLVED by the Senate of the Twenty-third Legislature of the State of Hawaii, Regular Session of 2005, the House of Representatives concurring, that the Governor is requested to establish a task force to study and determine whether classification of the offenses of assault and terroristic threatening based on the occupation of the victim is still necessary and, if so, to clarify or establish criteria for an occupation's inclusion as a specially protected class; and

BE IT FURTHER RESOLVED that the Governor is requested to appoint the following individuals and representatives to the task force:

(1) The Attorney General;

(2) The Public Defender;

(3) One Chief of Police to be selected by all county Chiefs of Police;

(4) One Prosecuting Attorney to be selected by all county Prosecuting Attorneys;

(5) Two members from the Criminal Defense Bar;

(6) A member of the American Civil Liberties Union of Hawaii; and

(7) A member of the public; and

BE IT FURTHER RESOLVED that the Governor is requested to appoint the Dean of the University of Hawaii, William S. Richardson School of Law, to serve as the Chairperson of the task force and facilitator for organizational purposes; and

BE IT FURTHER RESOLVED that the Legislature requests that the task force's mission be to:

(1) Determine whether a need still exists to perpetuate the existing special categories of victims of the offenses of assault and terroristic threatening; and

(2) Determine whether there is a need to include additional vocations or individuals within the special categories of victims of the offenses of assault and terroristic threatening; and

BE IT FURTHER RESOLVED that, if the task force determines that the special categories should be maintained, then the task force is requested to:

(1) Recommend the additional categories of victims that should be similarly protected; and

(2) Establish or clarify criteria for inclusion as a specially protected class; and

BE IT FURTHER RESOLVED that, if the task force determines that the special categories should not be maintained, then the task force is requested to provide a justification for this determination; and

BE IT FURTHER RESOLVED that the task force is also requested to prepare any proposed legislation that may be necessary to effectuate its recommendations; and

BE IT FURTHER RESOLVED that the task force is requested to report findings, recommendations, and any proposed legislation to the Legislature twenty days prior to the convening of the Regular Session of 2006; and

BE IT FURTHER RESOLVED that a certified copy of this Concurrent Resolution be transmitted to the Governor, the Attorney General, the Public Defender, the county Chiefs of Police, the county Prosecuting Attorneys, the Dean of the University of Hawaii William S. Richardson School of Law, and the American Civil Liberties Union of Hawaii.

 

 

 

Report Title:

Criminal Law; Disparate Treatment of Victims