STAND. COM. REP. NO. 565

Honolulu, Hawaii

, 2001

RE: S.B. No. 1188

S.D. 1

 

 

Honorable Robert Bunda

President of the Senate

Twenty-First State Legislature

Regular Session of 2001

State of Hawaii

Sir:

Your Committee on Judiciary, to which was referred S.B. No. 1188 entitled:

"A BILL FOR AN ACT RELATING TO SENTENCING FOR DRUGS AND INTOXICATING COMPOUNDS OFFENSES,"

begs leave to report as follows:

The purpose of this measure is to require community based supervision and treatment for offenders convicted of nonviolent drug possession offenses, and probationers and parolees who are at-risk of revocation because of continued drug use.

Your Committee received testimony in support of this measure from the Judiciary, Department of Public Safety (PSD), Department of Health, Community Alliance on Prisons, ACLU, Kako'o 'Ohana Pa'ahao, and Drug Policy Forum of Hawaii. Testimony in opposition was received from the Honolulu Prosecuting Attorney and Honolulu Police Department. Comments were submitted by the Public Defender.

This measure requires that a person convicted of a nonviolent drug possession offense be sentenced to probation. "Nonviolent drug possession offense" is where the drugs, intoxicating compounds, or drug paraphernalia are solely for personal use, and excludes the possession for sale, production, or manufacture of any drugs or intoxicating compounds. As a condition of probation, the court is required to assess the defendant, the assessment to be conducted by a person certified by the Department of Health to conduct such assessments. Certain specified offenders are not eligible for probation under the measure.

This measure prohibits the court from revoking probation for a first violation of a nonviolent drug related probation condition under specified circumstances. This measure further prohibits the Hawaii paroling authority from revoking parole for the first violation of a nonviolent drug related parole condition under specified circumstances.

Your Committee finds that the link between substance abuse and crime is well established. In the past, Hawaii has dealt with reducing crime by increasing criminal penalties. The results have been discouraging, as evidenced by the continued rise in crime rates in general and recidivism in particular. This measure represents the principle of harm reduction, which is a set of practical strategies that reduce the negative consequences of drug use. Harm reduction does not attempt to minimize or ignore the real and tragic harm and danger associated with licit and illicit drug use. Rather, it attempts to shift the focus of drug control policies from law enforcement and criminal justice to public health, in recognition that the problem is essentially one of disease rather than criminality. Your Committee does not wish to diminish the seriousness of crime, but looks to approaching crime as being the result of addiction that is treatable. The treatment route is expected to produce a reduction in crime and recidivism. In the process, the State will save money on incarceration, societal ills will diminish, and social services will not be diverted from more pressing needs such as welfare for the disabled.

This measure is intended to operate in concert with the $4.5 million provided in S.B. No. 879, S.D. 1, which is another vehicle for carrying out the commitment of the legislature to begin to address the substance abuse treatment needs of our State. It is the intent of your Committee to provide substance abuse treatment to the greatest number of persons in need of such treatment.

Your Committee finds that many first time offenders are not receiving any treatment for their substance abuse problems. Your Committee concurs with the main thrust of the measure that promoting treatment of nonviolent substance abuse offenders, rather than incarceration, is best for the individual and the community at large. Your Committee is also cognizant, however, that some offenders may be reluctant to enter a treatment program without the threat of incarceration. Consequently, your Committee believes that providing the court with the authority to impose a short term of incarceration could serve as a motivating factor in enrolling first time offenders in a treatment program.

Your Committee further believes that offenders whose conviction involves the possession of crystal methamphetamine should be excluded from participation in the program. Permitting those offenders to participate may undermine the intent and purpose of Act 306, Session Laws of Hawaii, Regular Session of 1996, that established mandatory minimum sentences for methamphetamine offenders. Moreover, your Committee finds that since the introduction of methamphetamine into the State, there has been an alarming growth in methamphetamine abuse which shows no evidence of abating. Your Committee believes that the widespread and devastating impact on the community caused by methamphetamine abusers requires a more severe response than that which is provided for other substance abusers in this measure.

Your Committee has amended this measure as follows:

(1) Making clarifying revisions and specifying the expungement procedures, on the recommendation of the PSD to facilitate judicial administration;

(2) Deleting the exception of imposing imprisonment as a condition of probation, because your Committee believes that the threat of a short term of imprisonment may serve as a firm incentive for some reluctant offenders to enter into treatment and encourage future compliance;

(3) Exempting the conviction for possession of methamphetamine from eligibility for probation under this measure; and

(4) Making technical, nonsubstantive amendments for proper drafting.

As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 1188, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 1188, S.D. 1, and be referred to the Committee on Ways and Means.

Respectfully submitted on behalf of the members of the Committee on Judiciary,

____________________________

BRIAN KANNO, Chair