DRUG-OFFENDER LAW NEEDS CLARIFICATION

The state Supreme Court has ruled that a first-time drug offender may
be denied probation if he has record of other crimes.

FIRST-TIME drug offenders are to be put on probation and enrolled in
drug-treatment programs, according to a law enacted by the 2002
Hawaii Legislature. The state Supreme Court has misread the new law,
denying probation to defendants convicted of drug offenses for the
first time but who had been convicted of other nonviolent crimes.
Legislators now need to amend the law to clarify their intention.

State House Judiciary Chairman Eric Hamakawa says legislators two
years ago intended for first-time drug offenders to be eligible for
probation and drug treatment, even if they previously had committed
nonviolent felonies. The Legislature should revise the law to make
that intention abundantly clear.

The new law seems plain enough. It requires that first-time drug
offenders, i.e. a person convicted for the first time for any offense
under statutes dealing with illegal drug possession, be given
probation and drug treatment, unless a conviction in the previous five
years had been for a violent felony.

However, Circuit Judge Marie Milks applied statutes dealing with
repeat offenders in sentencing Faye Smith to a prison term of six
months to five years for a first-time conviction of a drug offense.
Smith, who pleaded guilty to the drug charge, had prior convictions
for forgery and theft but she had not been convicted of a drug offense
or a violent felony.

Legislators should consider injecting some flexibility to judges in
sentencing first-time drug offenders. Smith reasonably may have
deserved to be denied probation even though she was a first-time drug
offender. Milks cited Smith's long-term drug use and failed attempts
at drug treatment.

What some lawyers have regarded as contradictory laws -- affecting
repeat offenders and first-time drug offenders -- has resulted in
prosecutors' appeal of seven cases after judges granted probation to
repeat offenders. Public defenders have appealed three cases in which
first-time drug offenders had been denied probation.