A Pair of Tough-On-Crime Bills Divides Legal Experts in Hawaii
UPDATED 3/20/14 4:45 p.m.
Two bills expected to be approved by the Senate Judiciary and Labor committee Thursday represent the kind of legislation that demonstrates lawmakers can get tough on crime.
Both measures have divided law enforcement officials, attorneys and advocacy groups, with opponents of the bills arguing that they are unnecessary and will have a negative impact on Hawaii’s criminal justice system.
Supporters counter that the bills are needed to help victims advocates crying out for action. And, both measures have influential supporters who, along with the fact that it’s an election year, may ultimately determine legislative outcomes.
would remove the probation option for sentencing people convicted of habitual property crimes. Under of the bill, the penalty could be five years in prison.
would eliminate the statute of limitations on first- and second-degree sexual assault of a minor under the age of 14. The statute of limitations would also be lifted for civil actions against perpetrators of these types of sexual assault.
‘Slap on the Wrist’
Update
Both bills have already passed the House, where they originated, and await Senate action. Judiciary Chairman Clayton Hee said Wednesday that he is inclined to approve both measures Thursday. The bills would then head to the full Senate for approval and perhaps be finalized in conference committee next month before being sent to the governor for his signature.1
State Rep. Della Au Belatti.
HB 2205 comes from House Rep. Chris Lee, a Democrat who represents Kailua and Waimanalo. The legislation is a direct response to what Lee has described as residents and visitors “being victimized by criminals who continue to commit the very same crimes because of light sentencing which puts them back on our streets.”
Kailua residents like Bill Hayes and Chuck Prentiss have pushed for HB 2205’s passage. They’ve circulated a “crime map” showing property crimes in Kailua from August to October last year exceeding other Oahu neighborhoods including Manoa, Pearl City, Mililani and Kapolei.
“Last year, I filed more reports with HPD regarding property theft than I care to remember,” Hayes said in testimony last month. “This problem persists into the new year as just yesterday I called 911 to report another incident at my home.”
Also supporting HB 2205 is Honolulu Prosecutor Keith Kaneshiro, well-known for his tough-on-crime stance and skepticism toward rehabilitation of convicted criminals. The Kauai prosecutor’s office also likes the bill.
Opponents say increased sentencing is not the answer.
State Rep. Chris Lee.
“A community suffering from a string of property crimes may get the false impression that perpetrators are ‘getting off’ with a slap on the wrist only to return to their criminal ways,” testified Timothy Ho, the state’s chief deputy public defender.
“However, a person who is arrested for a felony offense may be released pending investigation and charged at a later date. There have been instances, especially with individuals suffering from substance abuse, where they continue to commit crimes after being released pending investigation.”
Ho said his office believes the focus on habitual property crimes should be on “enforcement and timely prosecution, in order to prevent repeat offenses.”
Kat Brady, the Coordinator of the Community Alliance on Prisons, disputed the notion that crime is on the rise in the islands. She pointed to 2012 Hawaii statistics that she says show “record low” rates for property crime, burglary and motor vehicle theft.
“If we truly want to discourage property crime, we must look at its motivation which, in most cases, is substance abuse — stealing to get money to feed a habit,” said Brady, long an advocate for rehabilitation. “It is a cycle that appropriate treatment can address. We know that community-based treatment is effective and less costly than incarceration. We know that the lack of available community-based treatment programs is a missed opportunity for persons exiting incarceration and for the community.”
‘Sends a Strong Message’
HB 2034, the sexual assault bill, was introduced by the Women’s Legislative Caucus, the bipartisan coalition comprised of all the females in the state House and Senate.
Over the past two decades, caucus members have “provided women with a strong voice when it comes to passing measures that will improve women’s quality of life and protect their safety and rights,” said Rep. Della Au Belatti, a Democrat, when the caucus unveiled its 2014 package in January.
Honolulu Prosecutor Keith Kaneshiro.
Rep. Mele Carroll, another Democrat, introduced HB 2034, which is supported by Lee and 16 other representatives.
County prosecuting attorneys like the bill.
“Eliminating the statute of limitations on sexual assault sends a strong message that sexual violence will not be tolerated in our community,” testified Mitchell Roth, prosecuting attorney for the County of Hawaii. “Reporting a sexual assault is never an easy process and takes tremendous courage, and victims may take time to work through many emotions and experiences before being ready to engage with the legal system.”
Other advocates for women support HB 2034, too, saying it can take years for victims to come forward when crimes are perpetuated against them.
“Survivors of sexual assault often do not seek criminal justice immediately after the crime has occurred,” testified Renae Hamilton, executive director YWCA of Kauai. “There are many reasons for this — shame, fear of serious repercussions, family and societal pressures. When the victims are children, they often do not even have a say in the decision to seek justice or not.”
But Hawaii Attorney General David Louie and Deputy Attorney General Caron Inagaki called the lack of any statute of limitations for a civil action against an alleged perpetrator “troubling and unprecedented.”
Kat Brady, Community Alliance on Prisons.
“Hawaii has already determined that certain crimes, such as murder, are so heinous and pernicious that the criminals who commit them should not be able to evade prosecution,” the attorneys general said in testimony. “Perpetrators of sexual assault against minors and the disabled violate the most vulnerable who are often intimidated by threats and unlikely to report the crime until many years later. Society has an interest in ensuring that these predators are caught and brought to justice.”
Louie and Caron suggested that HB 2034 violates the due process clause of state and federal constitutions, “because a claim could conceivably be brought against any person at any time, which could prevent or severely impair that person’s ability to defend himself or herself. Over the passage of time, memories fade, witnesses move or pass away, and documents are lost or destroyed.”
Criminal defense attorney Brook Hart also objects to the legislation. He submitted more than six pages of written testimony supported by other legal experts, including state public defender Susan Arnett. He is concerned that the bill makes no distinction between cases of alleged sexual assault that involve complainants who were adults, rather than juveniles, at the time of the alleged offense.
He continues in his testimony:
Further, although an alleged sexual assault in the first degree can sometimes rely upon a complainant’s status as “mentally defective” or “mentally incapacitated” at the time of the alleged offense, and an alleged sexual assault in the second degree can sometimes rely upon a complainant’s status as “mentally incapacitated” at the time of the alleged offense, numerous complainants in such cases were not mentally defective or mentally incapacitated. Yet again, the sweeping language of House Bill No. 2034 (H.D. 2) indiscriminately applies to all complainants in such cases, including those who were fully competent adults at the time of the alleged offense.
Should HB 2205 and HB 2034 pass out of the Legislature, Gov. Neil Abercrombie will have the final say. No doubt the arguments of both sides of each bill will factor in to his decision making.
Contact Chad Blair via email at cblair@civilbeat.com or follow him on Twitter at .
