Part 3 Of 4

NEW LAW ON DRUG SENTENCING UNDER FIRE

A new state sentencing law meant to steer first-time, nonviolent drug users
away from jail and into treatment programs has not produced the sea change
many of its backers hoped for.

The question now is whether Act 161 should be strengthened or abolished.

Only 190 drug defendants were sentenced to probation and treatment under
the law's provisions during the first 15 months after it went into effect
in July 2002.

But only 51 were placed in treatment programs during that time, and just 12
of those offenders completed treatment by then, according to state
probation officials.

Another 29 drug offenders were paroled from prison through Act 161 over the
first six months, but more than half failed in outside treatment programs
and were re-incarcerated, according to the Hawai'i Paroling Authority.

Act 161 didn't include any money to pay for the treatment, and it created a
tangle of arguments over who is eligible.

The law aimed to improve Hawai'i's strategy to control the crystal meth
epidemic by giving first-time offenders probation and treatment rather than
prison sentences.

Act 161's proponents say the state must make a major shift so that drug
abusers don't become hardened criminals in prison and the state doesn't
build itself into a gulag archipelago. The law has the right intent, and
the Legislature can straighten its flaws out this year, they say.

"We have this law in place which could be fixed and could become a really
terrific vehicle for doing what I think needs to be done," said Pam Lichty,
president of the Drug Policy Forum of Hawai'i.

But others say offenders who deserve a second chance can be funneled into
treatment in ways that provide more accountability, such as through Drug
Court. Defendants who don't take the opportunity seriously and fail to
comply with the court's requirements can be locked up more swiftly,
creating a strong incentive to change, they say.

"It's the carrot-and-stick approach," Honolulu Prosecutor Peter Carlisle
said. "The other way, it's the carrot, the carrot, the carrot and no stick.
That's what Act 161 is."

The law states that its intent is "to require first-time nonviolent drug
offenders, including probation and parole violators, to be sentenced to
undergo and complete drug treatment instead of incarceration."

Under Act 161, an offender cannot be locked up the first time they violate
probation solely by using or possessing drugs. They can be imprisoned for
drug dealing or manufacturing, however, or if there is ample evidence they
are a danger to the community.

But the law wasn't clear in other ways, and critics say it didn't deliver
on its promises.

The defendants sentenced under Act 161 so far had indeed been charged with
drug use or possession for the first time. But some were far from
first-time law-breakers. They had long arrest records, even multiple
misdemeanor and felony convictions for charges that didn't involve drugs.

Though the law is meant to apply to nonviolent offenders, it does not bar
those who were convicted of violent felonies more than five years earlier
from being sentenced to probation for their first drug offenses. It doesn't
specify what felonies are considered violent and should disqualify someone
if committed more recently. Nor does it spell out whether a recent arrest
for a violent crime should bar someone, even if felony charges are pending
and likely to result in conviction.

For more than a year, it was unclear whether Act 161 superceded an earlier
law that required incarceration of repeat offenders. Different judges ruled
each way, and prosecutors and defense attorneys appealed 10 cases to the
Hawai'i Supreme Court.

Last month, the high court ruled unanimously that Act 161 does not override
the repeat offender law or its mandatory prison sentences.

The Supreme Court upheld a Circuit Court ruling that denied probation and
treatment to a woman who pleaded guilty to felony drug and paraphernalia
charges.

Faye A. Smith had previously been convicted of felony forgery and theft
charges, and was sentenced as a repeat offender to up to five years in
prison for the drug charges.

Another flaw, some say, is that Act 161 doesn't preclude someone from being
sent to treatment instead of jail if their first drug case was tied to
another offense that would not normally entitle them to probation.

"So if you're a smart criminal, just keep drugs in your pocket every time
you commit a burglary so that if you get caught, 'Oh, I using drugs';
therefore Act 161 should apply and, technically, it does," one judge
observed in another case appealed to the Supreme Court, according to
sentencing transcripts.

The bill creating Act 161 was introduced as part of then-Gov. Ben
Cayetano's legislative package. The original version excluded repeat
offenders and those charged with concurrent offenses, but lawmakers amended
it repeatedly to make more people eligible for treatment. The final version
was approved with bipartisan support by the full Senate, but 10 House
Republicans voted against it.

The law didn't require any comprehensive tracking of who is sentenced under
its provisions, how they fare in treatment and whether they commit new crimes.

But limited information compiled by probation officials shows that although
Act 161 "requires" treatment, many defendants aren't getting it.

Of the 190 drug offenders sentenced to treatment by October, 21 were judged
to not need it, 14 were on a waiting list to get in and 36 could not be
found for treatment assessments.

In the meantime, Act 161 has created competition for a limited number of
publicly financed treatment slots, limiting opportunities for others who
may be more responsive to help.

Act 161 was modeled loosely on laws voters approved in Arizona and
California, which also diverted some drug offenders to treatment programs.
But there was a key difference in those states: money.

The 1996 Arizona law was linked to a luxury tax on liquor sold in the
state, which paid for drug-treatment programs and a parental commission on
drug education and prevention programs. The 2001 California law included an
annual appropriation of $120 million for treatment.

But some say it's too early to regard Act 161 as a failure, and that the
proper support is needed to make it work.

"It certainly has allowed people who didn't otherwise need to be in prison,
but did need treatment, to get it," said Deputy Public Defender Susan
Arnett. "There's no question that we need more treatment, but I think the
proponents of Act 161 rightly recognized that if we waited to enact
something like that until we had all the treatment that was necessary, it
would never happen. Somebody has to take the first step."