MANDATORY PRISON TERMS FAIL TO FULLY DETER ICE USE

A big part of Hawai'i's response to the ice epidemic so far has been to
crack down hard on people caught repeatedly with the drug.

The result has been a steady influx of prisoners into a correctional system
that's strained far beyond its limits, but the crystal meth problem is as
bad as ever -- or worse.

One way the state got tough was to require mandatory jail and prison terms
for repeat ice offenses.

Lawmakers approved the sentencing law in 1996, following an alarming series
of violent incidents involving suspects high on the drug, including the
shooting of a police officer and a shooting in a hospital emergency room.

The measure requires that anyone with a record caught with even a tiny
amount of crystal meth be locked up for 30 days to 2 1/2 years, and anyone
caught selling one-eighth of an ounce or more faces an automatic 10-year
sentence.

The changes gave prosecutors powerful tools to get repeat ice offenders off
the street, and echoed the methods some other states used to attack drug
problems.

But although passing the law didn't cost anything, paying for the
incarceration has become a growing expense, and many agree its
effectiveness has been limited.

"The thought behind this whole thing was that if people know they're going
to get mandatory jail time for using, it will deter them and therefore
solve the drug problem. Clearly, that strategy has failed to work, but the
law is still in place," state Public Defender John Tonaki said.

"If what law enforcement says is true, that the drug problem has increased
exponentially, obviously the mandatory penalties for possession of crystal
meth are not having a deterrent effect on anyone."

Restructured Penalties

The sentencing law is not solely responsible for Hawai'i's growing prison
population, and the exact impact is virtually impossible to quantify. Many
defendants would likely have been sentenced to some amount of jail or
prison time even if there were no mandatory term; some of those who weren't
imprisoned would likely have been locked up later for new crimes.

But over the past few years, 17 states rolled back mandatory minimum
sentences or restructured other penalties that had been meant to get tough
on low-level or nonviolent offenders, especially those convicted of drug
offenses.

The changes were often driven by a mix of fiscal conservatives who didn't
want to raise taxes to pay for more prisons, and by others seeking
alternatives to incarceration.

"In the past few years, there has been a major shift in public opinion and
political will away from criminal justice policies that do not distinguish
between offenders and waste precious tax resources on incarcerating too
many low-level, nonviolent lawbreakers," said Laura Sager, director of
Families Against Mandatory Minimums, a group that advocates giving more
sentencing discretion to judges.

In Hawai'i, a 2002 law that requires probation and treatment for some
first-time drug offenders now overrules mandatory sentences in
ice-possession cases. But for others, prosecutors have the power to specify
whether a drug offense should highlight crystal meth -- possibly drawing a
mandatory sentence -- or to pursue a generic drug charge.

Discretion As A Tool

Honolulu Prosecutor Peter Carlisle said that discretion can be a powerful
tool to persuade defendants to enter Drug Court and abide by its close
supervision. The tactic was working well before the new treatment law,
known as Act 161, went into effect, he said.

"We were willing to strike meth language rather than seeking a mandatory
for people who were genuinely first time nonviolent offenders who hadn't
been previously given treatment regimens," he said. "If you use that as a
hammer to do that it's a very effective one. But for some amounts of
crystal methamphetamine, you ought to go to jail in a heartbeat."

Others say giving prosecutors the discretion to file charges that carry
automatic sentences distorts the judicial process.

"The problem with mandatory anything is that it gives one of the
adversaries in an adversarial process all the power," said Deputy Public
Defender Susan Arnett, who supervises felony trials. "In an adversarial
process, it really seems like the higher power, the neutral power, which is
the court, should be the one with the discretion. Not one of the adversaries."

And although the meth law is used to funnel offenders into Drug Court, it
doesn't always because such forums are relatively new, have limited
capacity and aren't set up equally across the state.

Through Drug Court, a judge may dismiss a charge or set aside a sentence if
the offender completes a treatment program and complies with other
requirements.

On O'ahu, 622 clients have been admitted to Drug Court since 1996, and 373
have graduated. More than 100 are enrolled on O'ahu, and about 100 more are
participating in newer Drug Courts on Neighbor Islands.

When a Drug Court was set up on Maui, prosecutors there sometimes told
co-defendants that only one of them would be allowed into the program, and
must testify against the other to qualify, Arnett said.

"That was clearly not what Drug Court was set up to do, to be used in that
manner," she said. "But that's the nature of those things. Prosecutors
prosecute ... that's one of the problems with putting all the discretion in
their hands. Because they're not there to do what's best for a defendant.
They're there to prosecute."