STAND. COM. REP. NO. 1296-04

Honolulu, Hawaii

, 2004

RE: S.B. No. 2843

S.D. 1

H.D. 1

 

 

 

Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committee on Judiciary, to which was referred S.B. No. 2843, S.D. 1, entitled:

"A BILL FOR AN ACT PROPOSING AN AMENDMENT TO ARTICLE I OF THE CONSTITUTION OF THE STATE OF HAWAII,"

begs leave to report as follows:

The purpose of this bill is to propose a constitutional amendment to:

(1) Provide the public with the right to access registration information regarding persons convicted of certain sexual offenses and certain crimes against children; and

(2) Empower the Legislature to control the scope and contents of the sex offender registry, as well as its dissemination to the public.

Testimony in support of the measure was provided by the Department of the Attorney General, Department of the Prosecuting Attorney of the City and County of Honolulu, Department of the Prosecuting Attorney of the County of Maui, Honolulu Police Department, Hawaii County Police Department, Maui County Police Department, Victim Witness Kokua Services Division of the Department of the Prosecuting Attorney of the City and County of Honolulu, Hawaii Coalition Against Sexual Assault, Hawaii State Coalition Against Domestic Violence, Sex Abuse Treatment Center, State of Hawaii Organization of Police Officers, Hawaii Reserves, Inc., and many concerned individuals. The Office of the Public Defender, American Civil Liberties Union of Hawaii, and a concerned individual opposed this measure.

Your Committee finds that there is no priority higher than the safety of Hawaii's people, especially our children, and that the public has a right to know about dangerous sexual predators in their community. The need for this information is great and this matter merits immediate action.

Hawaii's Sex Offender Registration and Notification law was passed in 1997. Under that law, the Department of the Attorney General is responsible for making sex-offender information available to the public.

In 2002, the Attorney General's office requested changes to the law that would give sex-offenders an opportunity to be heard before their information is made public. This was in reaction to a 2001 Hawaii Supreme Court decision. The Legislature made the requested changes and left the implementation of the public sex-offender registry to the Attorney General.

In 2003, the Attorney General returned to request more changes to the law, this time to conform to a U.S. Supreme Court holding. The final result was a brief, simplified civil hearing process that placed the burden on sex offenders to convince a judge they are not dangerous and should not be put on a public registry. The hearing process was designed per the Attorney General's specifications, and was intended to revive the public sex-offender registry as quickly as possible. As in 2002, the job of putting these sex-offenders on a published list was entrusted to the Attorney General.

Despite great public need and the tailor-made hearing process, the public registry remains dormant and there is no evidence that the Attorney General has made any attempts to revive it. In both 2002 and 2003, no hearings were completed. Claims that the hearing process is too burdensome cannot be substantiated given the lack of history of any hearings.

The Attorney General speculated that it would take six years to hold hearings for the estimated 1,900 sex-offenders in Hawaii. This means that over 600 offenders might have been put on the registry since 2002 had the Attorney General held the hearings provided under current law.

The scheme proposed by this bill would empower the Legislature to determine what information goes on the registry and what information goes to the public by designating categories of crimes that would determine whether or not an offender is put on the public list.

This measure would require a public vote followed by legislative implementation, a process that would take at least one and a half years to complete. In a period of one and a half years, 500 sex-offenders could be put on the public registry. Added to the 600 that could have been placed on the list since 2002, 1,100 sex-offenders would be in the community without the public having access or knowledge of these offenders due to the Attorney General's continued failure in implementing the process that would make sex-offender information available to the public.

The public has a right to know about dangerous offenders. The current law presumes that convicted offenders are dangerous, and requires offenders to prove to a judge that they are not a threat to the public. Consequently, the Attorney General's Office simply has to prove that the offender was convicted.

This measure would allow the Legislature to decide which crimes warrant public release and which ones do not. Under that scheme, the whole categories of sex offenses and crimes against children could be excluded from the public registry. Under the present system, all offenders subject to chapter 846E, Hawaii Revised Statutes, who are found to be dangerous are put on the public registry regardless of how minor the offense may be.

Certain states, such as Connecticut, do not make any assessment of danger and simply list all sex offenders on one cumulative list accessible through the Internet. Connecticut's registry contains a long disclaimer that states that Connecticut "has made no determination that any individual included in the Registry is currently dangerous." Your Committee finds the effectiveness of such list to identify dangerous predators in your community is questionable.

Given the history of repeated changes to the law followed by periods of complete inactivity, the sweeping constitutional amendment proposed in this measure is an invitation for only more delay, which the state can ill afford. The public deserves a working sex-offender registry implemented immediately.

Accordingly, your Committee has amended this bill by:

(1) Deleting the provision that gives the Legislature the power to control the scope and contents of the sex offender registry, and its dissemination to the public;

(2) Inserting language providing that the public has a right to information regarding dangerous felons convicted of sex offenses and crimes against children who pose a threat to the community, as determined by a court of law;

(3) Inserting language requiring the Legislature to implement the public's right through appropriate legislation; and

(4) Making technical, nonsubstantive amendments for clarity and style.

As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 2843, S.D. 1, as amended herein, and recommends that it pass Third Reading in the form attached hereto as S.B. No. 2843, S.D. 1, H.D. 1.

Respectfully submitted on behalf of the members of the Committee on Judiciary,

 

____________________________

ERIC G. HAMAKAWA, Chair