Report Title:

Controlled Substances; Sentencing

 

Description:

Requires mandatory community-supervision and treatment in lieu of incarceration. (SD2)

 

THE SENATE

S.B. NO.

1188

TWENTY-FIRST LEGISLATURE, 2001

S.D. 2

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 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 nonviolent 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. 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, one thousand nine hundred ninety-eight 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.

Statistics for Hawaii show that seventy per cent of pretrial offenders annually placed on supervised release under the auspices of the intake service centers have substance abuse problems. During fiscal year 1998-1999, one hundred fifty (twenty-five per cent) of the six hundred offenders had their supervised release status revoked; one hundred twenty (eighty per cent) of the one hundred fifty were drug related revocations. Of the approximately one thousand fifty pretrial and presentence individuals who are incarcerated, the rate of substance abuse is even higher.

Currently, there are about sixteen thousand offenders on probation in Hawaii, including five hundred under the supervision of federal probation authorities. An estimated thirteen thousand six hundred (eighty-five per cent) of the probationers are in need of substance abuse treatment. During fiscal year 1998-1999, five hundred ninety-five state probationers were incarcerated for violating conditions of probation, of which one hundred fifty (twenty-five per cent) violated their probation only for drug related reasons.

The department of public safety currently has four thousand eight hundred offenders incarcerated in state and mainland correctional facilities. Of those, three thousand six hundred are sentenced to greater than one year. Substance abuse assessments indicate that eighty-five per cent require substance abuse treatment.

The Hawaii paroling authority is responsible for supervising an active parole population of one thousand three hundred fifty. During fiscal year 1998-1999, four hundred thirty-three parolees were incarcerated for violating conditions of parole, of which one hundred seventy-five (forty per cent) 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 its 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 Arizona Supreme Court, in March 1999, submitted to the legislature a report on the impact of proposition 200 during its first year of implementation. The Arizona justice model has developed a cooperative relationship between the treatment provider and criminal justice agencies through collaborative planning and information sharing. The most important element in this process is the focus on the front end of the system by screening and assessing the substance abusing offender to determine the degree and severity of the offender's problem. Treatment intervention is prescribed based upon the offender's need, derived through an assessment protocol, and services are offered to the offender with the most appropriate provider.

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.

Ninety-eight per cent of offenders participating in the Arizona justice model received the type of treatment recommended by the assessment criteria. Of the nine hundred thirty-two offenders completing a treatment program in fiscal year 1997-98, sixty-one per cent completed the program successfully. That is, they complied with treatment program requirements, were not transferred to another placement, and did not abscond, reoffend, or have a petition to revoke filed.

This Act complements existing drug court programs by providing an opportunity for treatment to nonviolent drug possession offenders, who are often put on probation without the advantage of substance abuse treatment. It also creates a history of treatment, should the offender re-offend and be diverted to drug court.

The purpose of this Act is to require community based supervision and treatment of offenders convicted of nonviolent drug possession offenses and of probationers and parolees at risk of revocation due to continued drug use.

SECTION 2. Chapter 706, Hawaii Revised Statues 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. (1) 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.

(2) Notwithstanding any other provision of law, and except as provided for in subsection (3), 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:

(a) An assessment of the defendant, conducted by a person certified by the department of health to conduct such assessments, as to treatment needs; and

(b) 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. These conditions may require that the defendant who is reasonably able to do so contribute to the cost of the defendant's placement in a drug treatment program.

(3) Subsection (2) shall not apply if:

(a) The defendant is a repeat offender under section 706-606.5;

(b) The defendant, within the last five years, has been previously convicted of any felony or violent misdemeanor, including a conviction expunged pursuant to section 706-D;

(c) The defendant, within the last five years, has been released from incarceration, probation, or parole as a result of a conviction for a felony or violent misdemeanor sentence, including a conviction expunged pursuant to section 706-D;

(d) The defendant was using a firearm while under the influence of any drug or intoxicating compound;

(e) The defendant was convicted of possessing methamphetamine;

(f) The defendant was convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony;

(g) The defendant refuses drug treatment as a condition of probation;

(h) Appropriate treatment is unavailable based on the assessed needs of the defendant;

(i) The defendant is found by the court to be unamenable to any and all forms of available treatment;

(j) The defendant presents a risk to community safety; or

(k) Funds are not available for the provision of services.

(4) Within seven days of an order imposing probation under subsection (2), the probation officer shall notify the drug treatment provider designated to provide drug treatment under subsection (2). 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.

(5) 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. (1) Except as provided for in subsection (2), 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.

(2) The court shall not revoke probation for the violation of a single nonviolent drug related probation condition if the defendant is:

(a) Amenable to the drug treatment being provided and the public safety will not be at risk by placing the defendant on probation; provided that in this case, the court shall place the defendant on probation and may establish any additional or different conditions as the court deems appropriate; or

(b) Not amenable to the drug treatment being provided but is amendable to other available drug treatments or related programs and the public safety will not be at risk by placing the defendant on probation; provided that in this case, 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 any additional or different conditions as the court deems appropriate.

(3) The court may impose additional conditions of probation, as provided for in section 706-624. These conditions may require that the defendant who is reasonably able to do so contribute to the cost of the defendant's placement in a drug treatment program.

(4) Subsection (2) shall not apply if funds are not available for the provision of services.

(5) 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. (1) 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(2) may be placed in drug court.

(2) For purposes of this section, "drug court" means the process by which prosecution is deferred based on stipulated facts and by which the case is dismissed prior to the prosecution, with the agreement of the prosecutor, if the defendant adequately complies with the supervision of the court. §706-D Expungement. (1) If a person completes the mandated drug treatment program under section 706-A and probation is not revoked, then the nonviolent 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.

(2) The court, upon written application from a person convicted of a nonviolent drug possession offense and sentenced to probation under section 706-A, shall issue an expungement order annulling, canceling, and rescinding the record of conviction; provided that the applicant has complied with all the terms of probation.

(3) Upon the issuance of the expungement certificate, the person applying for the order shall be treated as not having been convicted in all respects not otherwise provided under this section or section 706-A.

(4) Upon the issuance of the expungement order, all conviction records pertaining to the conviction that are in the custody or control of any law enforcement agency of the State or any county government, and that are capable of being forwarded to the attorney general without affecting other records not pertaining to the conviction, shall be forwarded for placement of the conviction records in a confidential file.

(5) Records filed under subsection (4) shall not be divulged except upon inquiry by:

(a) A court of law or an agency thereof that is preparing a presentence investigation for the court or a determination of eligibility pursuant to section 706-A;

(b) An agency of the federal or state government that is considering the subject person for a position immediately and directly affecting the national or state security; or

(c) A law enforcement agency acting within the scope of its duties.

Response of any other inquiry shall not be different from response made about persons who have no conviction records.

(6) The attorney general or the attorney general's duly authorized representative within the department of the attorney general shall issue to the person for whom an expungement order has been entered a certificate stating that the order has been issued and that its effect is to annul the record of a specific conviction. The certificate shall authorize the person to state, in response to any question or inquiry, regardless of whether under oath, that the person has no record regarding the specific conviction, except as provided for in subsection (5). Such a statement shall not make the person subject to any action for perjury, civil suit, discharge from employment, or any other adverse action.

(7) Nothing in this section shall affect the compilation of crime statistics or information stored or disseminated as provided for in chapter 846."

SECTION 3. Chapter 353, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§353-   Nonviolent drug offense defendants; terms and conditions of parole; suspension and revocation. (a) Except as provided in subsection (b), the Hawaii paroling authority may modify or revoke parole for violations of nonviolent drug related parole conditions in accordance with section 353-66.

(b) The Hawaii paroling authority shall not revoke parole for the first violation of a nonviolent drug related parole condition if the defendant is:

(1) Amenable to the drug treatment provided, if any, and the public safety will not be at risk by placing the defendant on parole; provided that the Hawaii paroling authority shall place the defendant on parole and may establish any additional or different conditions as the paroling authority deems appropriate; or

(2) Not amenable to the drug treatment 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; provided that the Hawaii 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 any additional or different conditions as the paroling authority deems appropriate.

This subsection shall not apply if funds are not available for the provision of services.

(c) Pursuant to section 353-66, the Hawaii paroling authority may impose additional conditions of parole, except return to custody. These conditions may require that the defendant who is reasonably able to do so contribute to the cost of the defendant's placement in a drug treatment program.

(d) 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. The department of health, in conjunction with the department of public safety, the Hawaii paroling authority, and the judiciary, shall 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 nonviolent drug possession offenders.

The director of health shall submit findings and recommendations and the best practice service guide to the legislature twenty days before the convening of the regular session of 2002.

SECTION 5. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 6. New statutory material is underscored.

SECTION 7. This Act shall take effect on July 1, 2089.