Controlled Substances; Sentencing
Mandates substance abuse assessment/treatment for offenders under the custody of the Department of Public Safety. Implements a policy shift in addressing non-violent drug possession offenses by requiring mandatory community-supervision and treatment in lieu of incarceration. Repeals mandatory minimum sentence for Class C possession of methamphetamine. (SB1188 HD1)
TWENTY-FIRST LEGISLATURE, 2001
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO SENTENCING FOR DRUGS AND INTOXICATING COMPOUNDS OFFENSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that drug abuse is a serious problem in the State of Hawaii and current policies and practices in the criminal justice system have not adequately addressed the issue. Hawaii's criminal justice system requires a major shift in philosophy—to deal with the needs of drug offenders by requiring non-violent drug possession offenders to participate in community-based supervision and treatment, instead of incarceration. This approach has been instituted in a number of states, including Arizona and California, which are discussed in detail below. And other states are also considering a less punitive approach to dealing with the less serious drug offenders. New Mexico Governor Gary Johnson included in his 2001 State of State address a call to "reform our drug policies. The goal should be to help those addicted to drugs find a better way. The answer is not imprisonment and legal attack." He wants New Mexico to "lead the nation in drug policy reform that will reduce the overall harmful effects of drugs." New York Governor George Pataki, in January 2001, has also stated he wants to "dramatically" reform the state's notoriously harsh Rockefeller drug laws and replace them with a less punitive approach, including expanded treatment.
The relationship between substance abuse and crime is well established. The Department of Justice reports that of thirty-five urban sites included in the Arrestee Drug Abuse Monitoring Program, 1998 arrestees tested positive for drug use at an alarming rate, with cocaine use indicated in as many as sixty-seven per cent and marijuana use indicated in as many as fifty-three per cent. The use of methamphetamine among national arrestee populations has increased substantially since 1990, with western states showing the greatest prevalence for methamphetamine.
The Legislature finds that a growing body of research demonstrates the destructive impact of alcohol and other substance abuse on personal health and health care costs, the spread of communicable disease, educational performance and attainment, work force participation, safety and productivity in the workplace, and financial stability. These indicators of social erosion are in turn related to crime in many obvious but hard to measure ways. Given the recognized relationship between crime and substance abuse and addiction, it is necessary and appropriate to use, adapt, and expand the resources and remedies available within the criminal justice system to address the problem of substance abuse dependency and thereby to help reduce the demand for illicit drugs and the incidence of drug-related crimes.
Studies, such as the drug use forecasting studies conducted by the National Institute of Justice, reveal that a large percentage of persons who are arrested for both drug and nondrug offenses (such as thefts, burglaries, robberies, assaults, rapes, and homicides) test positive for recent drug use. Adults who are under the influence of a controlled substance or alcohol commit many offenses to raise revenues to support their habits. Some mind and mood altering drugs induce criminal and often violent behavior, reducing the person's inhibitions as well as the person's ability to anticipate future consequences, thereby undermining the deterrent thrust of the criminal law. Some drugs may also reduce an offender's ability to empathize with a potential victim, resulting in episodes of seemingly mindless violence. Finally, some crimes, including crimes of violence, are committed in the normal course of conducting illicit drug businesses and enterprises. These include strong-arm robberies and "rip-offs", violent retaliations for these offenses, and efforts to protect markets and "turf" by means of intimidation and terrorism directed against would-be competitors and drug purchasers who patronize competing drug distributors.
Research has demonstrated that substance abuse and addiction are treatable within the offender population and appropriate actions by criminal justice professionals can foster the effectiveness of treatment. This research further demonstrates that the effectiveness of substance abuse treatment is directly related to the length of stay in treatment. The threat of criminal justice sanctions, in turn, can be used to motivate offenders to enter treatment and stay in treatment for as long as necessary to effect positive change. To achieve this change, treatment must:
(1) Be of sufficient duration and intensity;
(2) Be supported by periodic comprehensive drug testing to maintain program integrity;
(3) Be provided by professional staff who have received adequate training and who continue to receive training and adequate supervision; and
(4) Provide for the continued collection and analysis of program data to allow for both process and impact evaluation.
Moreover, the drug and alcohol treatment programs must be accredited by the department of health and must be appropriate in type, duration, and intensity based upon the length and level of treatment derived from an alcohol and other drug assessment of each individual's needs, balanced with the public's right to protection.
Most addicted offenders who are convicted of serious crimes and who are sentenced to terms of imprisonment will eventually be released back into the community either on parole or at the expiration of their sentences. Without proper treatment, an offender is at risk to continue to be drug dependent and to commit new offenses, resulting in further injury to victims, loss of property, and the expenditure of limited resources to identify, apprehend, prosecute, and return the offender to confinement. Under these circumstances, the overriding need to protect the public safety requires that all substance abusing and addicted offenders receive appropriate treatment and monitoring services. The treatment and services should be based on the individual's need as determined by an alcohol and other drug assessment, either in lieu of or during the course of traditional imprisonment, and the individual should continue to receive needed treatment or appropriate after-care, support, or monitoring services as a condition of parole or other release from confinement.
Persons charged with repeat offenses, who actively abuse or are addicted to a controlled substance or alcohol and who are not undergoing appropriate treatment and monitoring, pose a proportionately greater risk of criminal recidivism.
To ensure uniformity and the best possible use of limited resources, the department of health must develop and enforce accreditation and operational standards for all programs, whether public or private, that provide substance abuse assessment services or treatment services to adults who are repeat offenders and inmates in correctional centers and facilities.
For treatment and intervention services to be most effective, alcohol and other drug abusing and addicted offenders must be assured that information provided during the course of treatment and counseling will be kept confidential in accordance with 42 United States Code section 290dd-2 and 42 C.F.R. Part 2, which govern the confidentiality of alcohol and other drug abuse treatment records. Without these protections, an offender in need of alcohol and other drug treatment services may be discouraged from constructively engaging in the treatment process. Preserving the confidentiality of treatment information and records is consistent with the vital goal of holding alcohol and other drug abusing and addicted offenders fully accountable for their past and future actions. Statistics for Hawaii show that 70 per cent of pre-trial offenders annually placed on supervised release under the auspices of the intake service centers have substance abuse problems. During fiscal year 1998-1999, 150 (25 per cent) of the 600 offenders had their supervised release status revoked; 120 (80 per cent) of the 150 were drug related revocations. Of the approximately 1,050 pre-trial and pre-sentence individuals who are incarcerated, the rate of substance abuse is even higher.
Currently, there are about 16,000 offenders on probation in Hawaii, including 500 under the supervision of federal probation authorities. An estimated 13,600 (85 per cent) of the probationers are in need of substance abuse treatment. During fiscal year 1998-1999, 595 state probationers were incarcerated for violating conditions of probation; 150 (25 per cent) violated their probation only for drug related reasons.
The department of public safety currently has 4,800 offenders incarcerated in state and mainland correctional facilities. Of those, 3,600 are sentenced to greater than one year. Substance abuse assessments indicate that 85 per cent require substance abuse treatment.
The Hawaii paroling authority is responsible for supervising an active parole population of 2,265. During fiscal year 1998-1999, 433 parolees were incarcerated for violating conditions of parole; 175 (40 per cent) of the 433 violated their parole only for drug related reasons.
Arizona (Proposition 200, 1996) and California (Proposition 36, 2000) have passed initiatives providing for mandatory community supervision of non-violent drug possession offenders, with substance abuse treatment requirements. These measures change state law so that certain drug offenders who use or possess illegal drugs would receive drug treatment and supervision in the community, rather than being sent to prison or jail or supervised in the community without treatment.
Representing a shift in philosophy from a criminal justice model of controlling drug use to a public health model based on harm reduction, the Arizona and California initiatives received substantial support from the voters, garnering approximately two-thirds of the votes. The goal of harm reduction measures is found in California's Proposition 36, "Purpose and Intent" section:
(1) To divert from incarceration into community-based substance abuse treatment program non-violent defendants, probationers, and parolees charged with simple drug possession or drug use offenses;
(2) To halt the wasteful expenditure of hundreds of millions of dollars each year on the incarceration of non-violent drug possession defendants who would be better served by community-based treatment;
(3) To enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies.
The measure excludes certain offenders from it provisions, such as those who refuse treatment, have failed drug treatment two or more times, or were convicted in the same criminal proceeding of a non-drug use misdemeanor or felony.
The California Legislative Analyst provided an overview of the Proposition 36 for the voters and included a summary of fiscal effects. The reports states, "This measure is likely to result in net savings to the state after several years of between $100 and $150 million annually due primarily to lower costs for prison operations. Assuming the inmate population growth would have otherwise continued, the state would also be able to delay the construction of additional prison beds for a one-time cost avoidance of capital outlay costs of between $450 million and $550 million in the long term. Counties would probably experience net savings of about $40 million annually due primarily to lower jail population."
The defining strength of the Arizona Justice Model is the incorporation of a continuum of "best practice" services as opposed to the reliance on a single program intervention. The designed continuum of care service delivery system comprises substance abuse education programming for the low-risk offender, standard and intensive outpatient programming for the medium- to low-risk offender, and day treatment, short-term and long-term residential treatment for the high risk offender. This service delivery continuum is based on the assessment and matching process that is critical in the effort to maximize positive client outcomes and the effective use of funding, time, and resources.
The purposes of this Act are to:
(1) Amend Hawaii's drug related penal statutes to mandate a substance abuse assessment and treatment program for all inmates in correctional centers and facilities who are alcohol or drug dependent or who are otherwise in need of substance abuse treatment and monitoring; and
(2) Require community-based supervision and treatment for offenders convicted of non-violent drug possession offenses, and probationers and parolees at-risk of revocation due to continued drug use.
SECTION 2. Chapter 321, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§321- Interagency coordination. (a) The department of public safety, Hawaii paroling authority, judiciary, department of health, department of human services, and any other agencies assigned oversight responsibilities for offender substance abuse treatment by law or administrative order, shall establish a coordinating body through an interagency cooperative agreement to oversee the development and implementation of offender substance abuse treatment programs in the State to ensure compliance with the intent of the master plan developed under chapter 353G. The coordinating body shall also include the coordinator of the Community Alliance on Prisons, a substance abuse treatment provider selected by the director of health, and an ex-offender selected by the director of public safety subject to the approval of the chairperson of the Hawaii Paroling Authority and the chief justice. The interagency cooperative agreement shall set forth the role of the coordinating body and the responsibilities of each agency that is a party to the agreement.
(b) The department of health shall be the lead agency for interagency coordination of substance abuse treatment. As the lead agency, the department shall act as facilitator of the coordinating body by providing administrative support to the coordinating body.
(c) Notwithstanding any other provision to the contrary, any agency that is part of the interagency cooperative agreement shall provide, upon the request of any other participating agency, all medical, psychological, or mental health records of any offender receiving supervision or treatment while under custody of the State. Any participating agency receiving such records of any offender receiving supervision or treatment while under custody of the State, shall keep that information confidential in accordance with the requirements of 42 United States Code section 290dd-2."
SECTION 3. Chapter 353, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§353- Non-violent drug offense defendants; terms and conditions of parole; suspension and revocation. (a) Except as provided in subsection (b), the paroling authority may modify or revoke parole for violations of non-violent drug-related parole conditions in accordance with section 353-66.
(b) The paroling authority shall not revoke parole for the first violation of a non-violent drug-related parole condition under the following circumstances:
(1) If the defendant is amenable to the drug treatment being provided, if any, and the public safety will not be at risk by placing the defendant on parole, then the paroling authority shall place the defendant on parole, and may establish such additional or different conditions as the paroling authority deems appropriate; or
(2) If the defendant is not amenable to the drug treatment being provided, but is amenable to other drug treatments or related programs and the public safety will not be at risk by placing the defendant on parole, the paroling authority shall place the defendant on parole and modify the terms of parole to ensure that the defendant receives the alternative drug treatment or related services to which the defendant is amenable, and may establish such additional or different conditions as the paroling authority deems appropriate.
(c) The paroling authority may impose additional conditions of parole, as provided for in section 353-66, except return to custody. These conditions may require that the defendant who is reasonably able to do so to contribute to the cost of the defendant's placement in a drug treatment program.
(d) Subsection (b) shall not apply if funds are not available for the provision of services.
(e) Nothing in this section shall give rise to a cause of action against the State or any state employee or any treatment provider."
SECTION 4. Chapter 706, Hawaii Revised Statutes, is amended by adding four new sections to be appropriately designated and to read as follows:
"§706-A Sentencing of non-violent drug possession offenders. (a) As used in this section, "non-violent drug possession offense" means a conviction under section 712-1243, 712-1246, or 329-43.5, and where the drugs, intoxicating compounds, or drug paraphernalia are solely for personal use. Non-violent drug possession offense shall not include possession for sale, production, or manufacturing of any drugs or intoxicating compounds as defined in section 712-1240.
(b) Notwithstanding any other provision of law, and except as provided for in subsection (c), any person convicted of a non-violent drug possession offense shall be sentenced to a term of probation. As a condition of probation, the court shall require an assessment of the defendant, conducted by a person certified by the department of health to conduct such assessments, as to treatment needs and require participation in and completion of an appropriate drug treatment program based on assessed needs. The court may impose additional conditions of probation, as provided for in section 706-624, except a term of imprisonment. These conditions may require that the defendant who is reasonably able to do so to contribute to the cost of the defendant's placement in a drug treatment program.
(c) Subsection (b) shall apply unless:
(1) The defendant is a repeat offender under section 706-606.5;
(2) The defendant has been within the last five years previously convicted of any felony or violent misdemeanor, including a conviction expunged pursuant to section 706-D;
(3) The defendant has been within the last five years released from incarceration, probation or parole as a result of a conviction for a felony or violent misdemeanor sentence upon conviction, including a conviction expunged pursuant to section 706-D;
(4) The defendant was using a firearm while under the influence of any drug or intoxicating compound;
(5) The defendant was convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony;
(6) The defendant refuses drug treatment as a condition of probation;
(7) No appropriate treatment is available based on the assessed needs of the defendant;
(8) The defendant is found by the court, by clear and convincing evidence provided by a treatment provider or through an assessment conducted by a person certified by the department of health to conduct such assessments, to be unamenable to any and all forms of available treatment;
(9) The state proves by a preponderance of evidence that the defendant presents a risk to community safety; or
(10) Funds are not available for the provision of services.
(d) Within seven days of an order imposing probation under subsection (b), the probation officer shall notify the drug treatment provider designated to provide drug treatment under subsection (b). Within thirty days of receiving notice, the treatment provider shall prepare a treatment plan and forward it to the probation officer. On a quarterly basis after the defendant begins the drug treatment program, the treatment provider shall prepare and forward a progress report to the probation officer.
(e) Nothing in this section shall give rise to a cause of action against the State or any state employee or any treatment provider.
§706-B Revocation, modification of probation conditions for non-violent drug possession offenders. (a) Except as provided for in subsection (b), the court may modify or revoke probation for defendants sentenced to probation as non-violent drug offenders as defined in section 706-A, in accordance with section 706-625.
(b) The court shall not revoke probation for the first violation of a non-violent drug-related probation condition under the following circumstances:
(1) If the defendant is amenable to the drug treatment being provided and the public safety will not be at risk by placing the defendant on probation, then the court shall place the defendant on probation and may establish such additional or different conditions as the court deems appropriate; or
(2) If the defendant is not amenable to the drug treatment being provided but is amenable to other available drug treatments or related programs and the public safety will not be at risk by placing the defendant on probation, the court shall place the defendant on probation and modify the terms of probation to ensure that the defendant receives the alternative drug treatment or related services to which the defendant is amenable, and may establish such additional or different conditions as the court deems appropriate.
(c) The court may impose additional conditions of probation, as provided for in section 706-624, except a term of imprisonment. These conditions may require that the defendant who is reasonably able to do so to contribute to the cost of the defendant's placement in a drug treatment program.
(d) Subsection (b) shall not apply if funds are not available for the provision of services.
(e) Nothing in this section shall give rise to a cause of action against the State or any state employee or any treatment provider.
§706-C Exemption from drug court. (a) Notwithstanding any law to the contrary, any person who is required to be sentenced to probation under section 706-A shall not be placed in drug court unless that person has violated a term of probation. Any person who is not subjected to or is exempted from section 706-A may be placed in drug court.
(b) For purposes of this section, "drug court" shall mean the process by which a defendant enters a guilty plea which is not acted upon by the court to a drug charge which is dismissed prior to the acceptance of the guilty plea with the agreement of the prosecutor if the defendant adequately complies with the supervision of the court.
§706-D Expungement. If a person completes the mandated drug treatment program pursuant to section 706-A and probation is not revoked, then the non—violent drug possession offense shall be expunged from the person's record, except that the court may consider the expunged offense in determining future eligibility under section 706-A."
SECTION 5. Section 353G-4, Hawaii Revised Statutes, is amended by amending the title and subsection (a) to read as follows:
§353G-4[ ]] Mandatory assessment of [ offenders.] felons. (a) Any [ inmate] offender who has been convicted of [ more than one offense] a felony under chapter 329, 329C, 707, 708, 709, 710, 711, or 712, [ and has one prior conviction under any of these chapters,] shall be required to undergo an assessment if:
(1) The [
inmate] offender refuses to undergo a drug test required under section 353G-3;
(2) The results of the drug test conducted pursuant to section 353G-3 reveal the presence of a controlled substance, for which the [
inmate] offender has no lawful prescription, or reveals alcohol abuse or dependency;
(3) The [
inmate] offender requests an assessment;
(4) The [
inmate] offender admits to the unlawful use of a controlled substance within the year preceding the conviction for the present charge or admits to alcohol abuse or alcoholism;
(5) The [
inmate] offender has been granted a conditional discharge within the past five years pursuant to section 712-1255 or any similar or predecessor law of this State, any other state, or federal law;
(6) The [
inmate] offender has been sentenced within the past five years to probation or treatment during incarceration pursuant to this chapter or any predecessor law of this State, any other state, or federal law; or
(7) The present or pending charge involved the use or possession of a controlled substance or alcohol."
SECTION 6. Section 353G-5 Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
"(c) Anyone receiving drug test results or assessment results under subsection (a) shall keep that information confidential in accordance with the requirements of 42 United States code section [
SECTION 7. Section 353G-16, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The department of public safety, with the assistance of the department of health [
, may] and the attorney general, shall pursue all available funding through federal, state, and local government programs [ and] or private sources. [ Contingent upon the receipt of sufficient funds, the department of public safety may implement the assessment and treatment services mandated pursuant to this chapter. If at any time funds are not available, the department may not be required to provide these services.] In addition, the department of public safety, in conjunction with the department of health, may pursue all available federal matching funds through medicaid for nonhospital residential alcohol and other drug treatment services from the United States Health Care Financing Administration."
SECTION 8. Section 712-1243, Hawaii Revised Statutes, is amended to read as follows:
"§712-1243 Promoting a dangerous drug in the third degree. (1) A person commits the offense of promoting a dangerous drug in the third degree if the person knowingly possesses any dangerous drug in any amount.
(2) Promoting a dangerous drug in the third degree is a class C felony.
(3) Notwithstanding any law to the contrary, if the commission of the offense of promoting a dangerous drug in the third degree under this section involved [
the possession or] distribution of methamphetamine, the person convicted shall be sentenced to an indeterminate term of imprisonment of five years with a mandatory minimum term of imprisonment, the length of which shall be not less than thirty days and not greater than two-and-a-half years, at the discretion of the sentencing court. The person convicted shall not be eligible for parole during the mandatory period of imprisonment."
SECTION 9. The department of health, in conjunction with the department of public safety, the Hawaii paroling authority, and the judiciary, is to conduct an inventory of existing substance abuse treatment programs for criminal offenders in Hawaii and identify any gaps in service that may impact the intent of this Act. The department of health shall prepare findings of the inventory and recommend methods to fill the gaps, including any associated cost. The department of health, in conjunction with the department of public safety, the Hawaii paroling authority, and the judiciary, shall further develop a "best practice" service guide for substance abuse treatment providers, including articulating the overall philosophy and goals of the state in the treatment of non-violent drug possession offenders. Additionally, these agencies shall conduct a thorough study of the fiscal implications of diverting non-violent drug offenders from incarceration into substance abuse treatment and also gather information regarding the status of the diversion efforts underway in Arizona and California.
The director of health shall submit the above-referenced findings and recommendations and the best practice service guide to the legislature twenty days before the convening of the regular session of 2002.
SECTION 10. The department of health shall submit a progress report to the legislature before the convening of the regular session of 2002, and a final report before the convening of the regular session of 2003, on the status and progress of the interagency cooperative agreement and the effectiveness of the delivery of services thereto, and expenditures made under this Act.
SECTION 11. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2001-2002 and the same sum or so much thereof as may be necessary for fiscal year 2002-2003 to hire a coordinator of interagency programs, to be exempt from chapters 76 and 77. The coordinator shall act as facilitator of the coordinating body and shall provide administrative support to the interagency coordinating body in the development and implementation of offender substance abuse treatment programs in the State.
The sums appropriated shall be expended by the department of health for the purpose of this Act.
SECTION 12. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2001-2002 to provide substance abuse treatment programs throughout the criminal justice system, in particular to implement this Act.
The sum appropriated shall be expended by the department of health for the purpose of this Act.
SECTION 13. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 14. This Act shall take effect on July 1, 2002, except that sections 2, 5, 6, 7, 9, and 13 shall take effect upon approval and sections 11 and 12 shall take effect on July 1, 2001.