GIVE JUDGES DISCRETION IN DECIDING DRUG OFFENDERS' FATE

THE ISSUE The state's drug reform law that requires probation and treatment
for first-time offenders sometimes conflicts with mandatory sentencing
provisions.

LEGISLATIVE intentions appear to have gone awry last year in a change in
sentencing laws that call for probation and treatment for first-time,
nonviolent drug offenders. The change may conflict in some cases with other
state laws that require minimum prison terms for people convicted repeatedly
for crimes that did not involve drugs, resulting in inconsistent sentences
and appeals as judges struggle to integrate the differences.

An appropriate correction would be to allow judicial discretion in balancing
the objective to provide drug treatment instead of imprisonment while
weeding out recidivists who would use the new drug reform law simply to
avoid another prison term.

The state Legislature approved the change in 2002 to reflect a progressive
approach to drug offenses and to cut the state's prison population. The idea
was to help offenders kick their habits instead of putting them behind bars
and eventually having them return to crime after their release. The law was
intended to apply to those who had committed nonviolent crimes, such as auto
theft or burglary, to pay for illegal drugs.

However, in the final draft of the bill, a portion that denied treatment and
probation for those with previous convictions was eliminated. Law
enforcement officials say this allows repeat offenders a way out of serving
time and should be curtailed, and that it conflicts with mandated minimum
prison sentences for repeat offenders.

Judges acknowledge that the minimum sentence requirements and
treatment-probation provision do not conform, but some believe that since
legislators removed the repeat offender exemption, it appears lawmakers
intended that the new law should apply instead.

The result is that some drug offenders with felony records are being allowed
probation and treatment while others aren't. Appeals to the Hawaii Supreme
Court have ensued in 10 cases as both prosecutors and defense attorneys
point to the inconsistencies.

Another consequence is a drop in cases transferred to Drug Court as more
offenders are opting for probation-treatment rather than undergo the Drug
Court's more stringent two-year program. Kauai Drug Court coordinator Warren
Kitaoka said some defendants and their attorneys have been shopping around
between the two programs, which is acceptable if the goal is to determine
which might better help the offender stay straight.

As a remedy, legislators may choose to restore the exemption for repeat
offenders or redefine mandatory minimum sentencing. The better way may be to
allow judges discretion in imposing a sentence or treatment and probation,
based not only on the conviction and the offense, but on the defendant's
character and past conduct. In other words, allow judges to be judges.