Report Title:

Sentencing; Parole

 

Description:

Establishes sentencing guidelines commission and sets forth standards to be applied in developing guidelines for approval by the legislature.  Establishes "truth-in-sentencing" by requiring those persons convicted of a crime and sentenced to prison to serve 85% of the prison term imposed.  "Truth-in-sentencing" provisions effective on 07/01/2009.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1702

TWENTY-FOURTH LEGISLATURE, 2007

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

relaTing to sentencing.

 

 

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

 


     SECTION 1.  Chapter 706, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§706-     Truth in sentencing.  Notwithstanding any other provision of law, a person convicted of an offense committed on or after the effective date of this Act who is sentenced to a term of imprisonment under this chapter shall serve no less than eighty-five per cent of the sentence of imprisonment imposed by the court before being eligible for parole, good time credit release, furlough, work release, or any other form of release from confinement in a correctional facility.  If the sentence imposed by the court is life imprisonment with the possibility of parole, the person shall serve no less than twenty years before being eligible for parole."

     SECTION 2.  (a)  There is established, as an independent commission in the judiciary, a Hawaii sentencing commission which shall consist of nine voting members and four non-voting members.

     (b)  The governor shall appoint the voting members of the commission and shall designate one member as chair.  Three of the voting members shall be a sitting district court or circuit court judges, selected from a list of six judges recommended by the chief justice, and of these three, at least one district court judge and one circuit court judge shall be appointed.  Two of the voting members shall be deputy prosecuting attorneys, selected from a list of six deputy prosecuting attorneys recommended by the Hawaii prosecuting attorneys' association.  One of the voting members shall be a deputy attorney general, selected from a list of three deputy attorneys general recommended by the attorney general.  Two of the voting members shall be members of the Hawaii association of criminal defense attorneys, selected from a list of five members recommended by the Hawaii association of criminal defense attorneys.  One voting member shall be a deputy public defender, selected from a list of three deputy public defenders recommended by the State public defender.  The non-voting members shall be the director of public safety, or the director's designee; the chair of the Hawaii paroling authority, or the chair's designee; the president of the state of Hawaii organization of police officers, or the president's designee; and a victim-witness advocate selected by the crime victims compensation commission.  The chairman and the members of the commission shall be subject to removal from the commission by the governor only for neglect of duty or malfeasance in office or for a showing of other good cause.

     (c)  The voting members of the commission shall be appointed for six-year terms; provided however, that the initial terms of the first members of the commission shall be staggered so that four members, including the chair, serve terms of six years; three members serve terms of four years; and two members serve terms of two years.  Terms of those members appointed because of their public office or position shall end when the member leaves the public office or position, and a successor shall be appointed in the prescribed manner.

     (d)  No voting member may serve more than two full terms.  A voting member appointed to fill a vacancy that occurs before the expiration of the term for which the member's predecessor was appointed shall be appointed only for the remainder of that term.

     (e)  Members of the commission shall serve without compensation, but each member shall be reimbursed by the State for all reasonable expenses incurred in the performance of official duties.

     (f)  Judges who serve on the commission and shall not be required to resign their judicial appointments.

     (g)  The commission shall have the power to perform the functions necessary to carry out the purposes of this chapter and may delegate to any member or designated person powers as may be appropriate to the accomplishment of the duties of the commission as set forth below.  In particular, the commission shall:

     (1)  Appoint and fix the salary and duties of a director and other personnel, who shall be appointed without regard to chapter 76 and serve at the discretion of the commission;

     (2)  Submit appropriations requests to the state director of finance;

     (3)  Utilize, with their consent, the services, equipment, personnel, information, and facilities of federal, state, county, and private agencies and instrumentalities with or without reimbursement therefor;

     (4)  Enter into and perform contracts, leases, cooperative agreements, and other transactions as may be necessary in the conduct of the functions of the commission, with any public agency, or with any person, firm, association, corporation, educational institution, or nonprofit organization;

     (5)  Accept and employ, in carrying out the provisions of this chapter, voluntary and uncompensated services;

     (6)  Request information, data, and reports from any Hawaii agency or judicial officer as the commission from time to time may require and as may be produced consistent with other law;

     (7)  Serve as a clearinghouse for the collection, preparation, and dissemination of information on sentencing practices and assist courts, departments, and agencies in the development, maintenance, and coordination of sound sentencing practices;

     (8)  Make recommendations to the legislature concerning modification or enactment of laws relating to crimes, sentencing, and correctional matters, as well as recommendations concerning programmatic, budgetary, and capital matters that the commission finds to be necessary and advisable to carry out the purposes of this Act; and

     (9)  Hold hearings and call witnesses to assist the commission in the exercise of its powers or duties.

     (h)  Except as hereinafter provided, the commission shall act by affirmative vote of at least five of its voting members.

     (i)  Upon request of the commission, each agency and department of the State is hereby authorized and directed to make its services, equipment, personnel, facilities, and information available to the greatest practicable extent to the commission in the execution of its functions.  The commission, to the extent practicable, shall, utilize existing resources of the administrative offices of the district and circuit courts for the purpose of avoiding unnecessary duplication.

     (j)  Except as otherwise provided by law, the commission shall maintain and make available for public inspection a record of the final vote of each member on any action taken by it.

     (k)  The director shall supervise the activities of persons employed by the commission and perform other duties assigned to the director by the commission.  The director, subject to the approval of the commission, shall appoint officers and employees as necessary in the execution of the functions of the commission.

     SECTION 3.  (a)  The purposes of the Hawaii sentencing commission shall be to recommend sentencing policies and practices for the State that:

     (1)  Punish the offender justly;

     (2)  Secure the public safety of the State by providing a swift and sure response to the commission of crime;

     (3)  Meet the purposes of sentencing, which are to:

         (A)  Reflect the seriousness of the offense;

         (B)  Promote respect for the law;

         (C)  Provide just punishment for the offense;

         (D)  Afford adequate deterrence to criminal conduct;

         (E)  Protect the public from further crimes of the defendant; and

         (F)  Provide the defendant with educational or vocational training;

     (4)  Provide certainty and fairness in sentencing, avoiding unwarranted sentencing disparities among defendants with similar criminal records who have been found guilty of similar criminal conduct, while maintaining judicial discretion and sufficient flexibility to permit individualized sentences warranted by mitigating or aggravating factors;

     (5)  Promote truth in sentencing, in order that all parties involved in the criminal justice process, including the prosecution, the defendant, the court, the victim, and the public, are aware of the nature and length of the sentence and its basis;

     (6)  Ration correctional capacity and other criminal justice resources to sentences imposed, making the rationing explicit, rational, and coherent in order to:

         (A)  Afford sufficient correctional capacity to incarcerate violent offenders consistent with paragraph (1);

         (B)  Evaluate, on a yearly basis, the performance of the rationing, making appropriate remedial recommendations;

         (C)  Prevent the prison population in the State from exceeding the capacity of the prisons, prevent premature release for any other reason, and serve the ends of truth in sentencing by taking into account, in establishing sentencing policies and practices for the State, the nature and capacity of correctional facilities and community sanctions available in the State consistent with protecting public safety;

     (7)  Encourage the development and implementation of intermediate sanctions in appropriate cases as a sentencing option, consistent with protecting public safety;

     (8)  Enhance the value of criminal sanctions and ensure that the criminal penalties imposed are the most appropriate ones by encouraging the development of a wider array of criminal sanctions;

     (9)  Make offenders accountable to the community for their criminal behavior, through community service, restitution, and a range of intermediate sanctions; and

    (10)  Evaluate the impact, if any, on correctional facility capacity of the discontinuation of sentence reductions for good conduct; and

     (b)  Nothing contained in this section shall be construed as creating any right of action.

     SECTION 4.  (a)  The commission, by affirmative vote of at least six members of the commission and consistent with all pertinent provisions of this Act and existing law, shall recommend sentencing guidelines, which shall take effect only if enacted into law.

     (b)  The sentencing guidelines shall be used by the district and circuit courts of the State in imposing a sentence in every criminal case.  The sentence shall not be suspended in whole or in part.  The sentencing judge shall impose a sentence within a range prescribed by the sentencing guidelines for every offense, unless the sentencing judge sets forth in writing reasons for departing from that range, on a sentencing statement as set forth in subsection (1), based on a finding that there exists one or more aggravating or mitigating circumstances that should result in a sentence different from the one otherwise prescribed by the guidelines.  The commission shall establish non-exclusive aggravating and mitigating circumstances to guide the sentencing judge, as set forth in subsection (g).  In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in section 3.

     (c)  The sentencing guidelines shall be based upon reasonable offense characteristics, taking into account the nature and seriousness of each offense, and reasonable offender characteristics, taking into account the offender's character, background, amenability to correction, and criminal history and the availability of the State's criminal justice and public safety resources.

     (d)  For every criminal offense under the laws of the State, the guidelines shall establish:

     (1)  The circumstances, if any, under which the imposition of intermediate sanctions may be proper and the circumstances under which imprisonment may be proper;

     (2)  Appropriate intermediate sanctions for offenders for whom imprisonment may not be necessary or appropriate.  In establishing intermediate sanctions, the commission shall make specific reference to non-institutional sanctions, including but not limited to:  standard probation, intensive supervision probation, community service, home confinement, weekend prison sentences, day reporting, residential programming, substance abuse treatment, restitution, means-based fines, continuing education, vocational training, special education, and psychological counseling; provided however, that in no event shall a state employee be replaced by an offender serving an intermediate sanction;

     (3)  A target sentence for offenders for whom an intermediate sanction may not be appropriate based upon a combination of reasonable offense and offender characteristics for each offense and the adequacy of the State's criminal justice and public safety resources.  The guidelines shall provide that, for each target sentence, the sentencing judge may impose a maximum sentence within a range to be established by the commission for each offense and a minimum sentence of two-thirds of the maximum sentence; provided however, that for target sentences of two years or greater, the range may not be greater than twenty per cent greater or less than the target sentence; and provided further, that for target sentences of less than two years, the sentencing judge may impose an intermediate sanction.  Within that range, the sentencing court may impose any sentence without stating its reasons therefor.  The commission shall act consistent with the need for flexibility, expeditious administration, case-flow management, and resources of the trial courts in sentencing guidelines;

     (4)  The circumstances, which shall not be considered exclusive, under which a sentencing judge may depart upward or downward from the range otherwise prescribed by the guidelines; and

     (5)  The circumstances, if any, under which substance abuse treatment may be mandated and the circumstances under which substance abuse treatment may be offered to an offender for voluntary participation.

     (e)  The commission shall adopt, in conjunction with the sentencing guidelines, general policy statements which shall be used in interpreting the guidelines.

     (f)  In its development of the sentencing guidelines, the commission shall not be bound by any existing mandatory maximum or minimum term prescribed by statute and may recommend target sentences that exceed existing mandatory maximum terms or that fall below existing mandatory minimum terms.  The commission shall conduct an empirical study in order to ascertain, to the extent practical, a survey of those individuals appearing before the State's criminal courts and those committed to probation and prison.  It shall also include the average sentences imposed for all offenses prior to the adoption by the commission of the sentencing guidelines and the length of prison terms actually served in such cases.  The commission shall not be bound by average sentences and shall independently develop a sentencing range that is consistent with the purposes of sentencing described in section 3.  The commission shall establish guidelines regarding participation in work release, education, training, employment, or treatment programs outside correctional facilities.  The commission shall utilize this data and develop any other data it deems necessary to assess the impact of the sentencing guidelines and carry out the purposes set forth in section 3.

     (g)  In establishing non-exclusive aggravating and mitigating circumstances pursuant to subsection (b), the commission shall determine whether the following kinds of factors, among others, are relevant and shall take these factors into account only to the extent that it deems them to be relevant:

     (1)  Factors that describe the nature and circumstances of the offense;

     (2)  Factors that describe the offender's mental state at the time of the offense;

     (3)  Factors that describe the relationship, if any, between the offender and victim;

     (4)  Factors that describe the nature and degree of the harm caused by the offense;

     (5)  The community view of the gravity of the offense;

     (6)  The public concern generated by the offense;

     (7)  The deterrent effect a particular sentence may have on the commission of the offense by others;

     (8)  The current incidence of the offense in the community and in the State as a whole;

     (9)  The role in the offense of each offender in cases involving multiple offenders;

    (10)  The age of the offender;

    (11)  The mental and emotional condition of the offender, to the extent that such condition mitigates the defendant's culpability or to the extent that such condition is otherwise plainly relevant;

    (12)  The offender's physical condition, including drug dependence;

    (13)  The offender's family ties and responsibilities;

    (14)  The offender's community ties;

    (15)  The offender's degree of dependence upon criminal activity for a livelihood;

    (16)  The offender's character and personal history; and

    (17)  The offender's amenability to correction, treatment, or supervision.

     (h)  Except for the crimes set forth in part II of chapter 707, the sentencing judge may depart from the range established by the sentencing guidelines and impose a sentence below any mandatory minimum term prescribed by statute, if the judge sets forth in writing reasons for departing from that range on a sentencing statement as set forth in subsection (l), based on a finding that there exists one or more mitigating circumstances that should result in a sentence different from the one otherwise prescribed by the guidelines and below any applicable mandatory minimum term.

     (i)  The commission shall ensure that the guidelines are neutral as to the race, sex, national origin, creed, religion, and socio-economic status of offenders.

     (j)  The commission periodically shall assess the impact of the sentencing guidelines to determine the type and amount of correctional resources needed.  In particular, the commission shall examine the impact of the guidelines on intermediate sanctions and correctional institutions and may consult with all appropriate authorities for this purpose.  Beginning in the year after the sentencing guidelines become law, but no later than May 1 of that year, the following persons shall submit comments and recommendations to the commission regarding the implementation and impact of the sentencing guidelines:

     (1)  The attorney general;

     (2)  The chair the Hawaii paroling authority;

     (3)  The prosecuting attorney of each county;

     (4)  The state public defender;

     (5)  The director of public safety;

     (6)  The chief judges of the circuit court and district court of each circuit; and

     (7)  The Hawaii association of criminal defense attorneys.

     (k)  Beginning in the calendar year following the effective date of the sentencing guidelines, the commission annually, not less than twenty days prior to the convening of each regular session of the legislature, may submit a report to the legislature including proposed amendments to the sentencing guidelines.  The amendments to the guidelines shall take effect only if enacted into law.

     (l)  The chief justice, in consultation with the sentencing commission, shall establish the form of a sentencing statement, conforming to the sentencing guidelines, which shall be used by the sentencing judge in the application of the guidelines when imposing a sentence.  The sentencing judge shall complete the statement for every sentence imposed.  If the sentencing judge imposes a sentence that departs from the range established by the guidelines, the judge shall specify in the sentencing statement the facts, circumstances, evidence, opinions, and any other matters considered by the judge to support the mitigating circumstances justifying the imposition of a sentence different from the one otherwise prescribed by the guidelines or below any applicable mandatory minimum term.  One copy of the sentencing statement shall be forwarded by the court to the commission, which shall be used by the commission to submit to the legislature, as part of its annual report, an analysis of sentencing patterns under the guidelines.

     (m)  Any inmate sentenced to a state facility prior to the effective date of any sentencing guidelines enacted into law shall be subject to the law and rules governing the issuance of parole and the supervision of parole at the time the offense was committed.

     (n)  A person sentenced to a term of imprisonment as prescribed by any sentencing guidelines enacted into law shall be eligible for parole as provided by section 706‑   .

     (o)  The commission shall provide a public hearing and opportunity for public comment on its sentencing guidelines prior to submitting the guidelines to the legislature.

     SECTION 5.  There is appropriated out of the general revenues of the State of Hawaii the sum of $        , or so much thereof as may be necessary for fiscal year 2007-2008, and the same sum, or so much thereof as may be necessary for fiscal year 2008-2009, for establishing and operating the Hawaii sentencing guidelines commission.

     The sums appropriated shall be expended by the judiciary for the purposes of this Act.

     SECTION 6.  New statutory material is underscored.

     SECTION 7.  This Act shall take effect on July 1, 2007; provided that section 1 shall take effect on July 1, 2009.

 

INTRODUCED BY:

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