Report Title:

Crystal Methamphetamine; Mandatory Sentencing; Repeal

Description:

Repeals sentencing guidelines for methamphetamine offenses in the first, second, and third degrees.

THE SENATE

S.B. NO.

3076

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

Relating to crystal Methamphetamine.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that the current mandatory sentencing guidelines are excessively severe and do not allow a judge to consider important factors in determining an appropriate sentence. Under the current law, methamphetamine offenders are punished solely on the weight of the substance involved and do not consider whether the offender is chemically dependent or selling drugs to support an addiction.

As a result, this rigid sentencing approach has resulted in prisons being overloaded with low-level dealers and people addicted to methamphetamines rather than high-level drug traffickers. Since the mandatory minimum sentences were enacted in 1996, the prison populations have doubled. The women's prison population has increased from two hundred forty-nine to more than five hundred in 2000.

The department of public safety's statistics shows that 56.5 per cent of the women inmates were serving for offenses under these sentencing guidelines. Of these inmates, sixty per cent have at least one child, and the average sentence was twenty-six months. Due to the length of these sentences, many of these women face the termination of their parental rights under the federal Adoption and Safe Families Act. Under this law, if the child has been residing outside of the family home for an aggregate of fifteen of the most recent twenty-two months, the State files a motion for a permanent plan for the child's placement. In some cases, the permanent plan is for a child, often of Hawaiian ancestry, to be adopted by non-Hawaiian families in the United States, and as a result, these children are raised with no connection to their culture.

Due to these mandatory sentencing guidelines, judges have been stripped of alternative approaches to determining appropriate punishments, such as combinations of jail sentences, probation or parole, and drug rehabilitation programs. In response, two of the United States Supreme Court Justices have articulated their distaste for mandatory sentencing guidelines. Chief Justice William Rehnquist has complained that inflexible sentencing rules may threaten judicial independence, and Justice Anthony Kennedy has said that mandatory minimums must be reduced to less draconian levels. A total of twenty-five states have already reformed their sentencing practices by either eliminating or reducing their sentences for nonviolent drug offenders.

As of June 2003, the department of public safety has calculated six hundred thirty-seven people serving mandatory sentences for class A, B, and C felonies under current mandatory sentencing guidelines. The average time served was thirty-nine months at a minimum cost of $76 per day. At a minimum, the State expended approximately $56,600,000 to house these offenders. And for many, drug treatment programs for their addictions were not available or administered.

Instead of the current practice, the legislature finds that sentencing for methamphetamine offenses should be assessed the same way serious felonies are determined, by a judge with access to the offender's criminal history and chemical dependency records. This targeted approach will be of greater benefit to the defendant and the community than a predetermined, one size fits all, sentence.

The purpose of this Act is to restore judicial discretion in sentencing methamphetamine offenses by eliminate the mandatory sentencing guidelines.

SECTION 2. Section 712-1241, Hawaii Revised Statutes, is amended to read as follows:

"712-1241 Promoting a dangerous drug in the first degree. (1) A person commits the offense of promoting a dangerous drug in the first degree if the person knowingly:

(a) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of:

(i) One ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or

(ii) One and one-half ounce or more, containing one or more of any of the other dangerous drugs; or

(b) Distributes:

(i) Twenty-five or more capsules, tablets, ampules, dosage units, or syrettes containing one or more dangerous drugs; or

(ii) One or more preparations, compounds, mixtures, or substances of an aggregate weight of:

(A) One-eighth ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or

(B) Three-eighths ounce or more, containing any other dangerous drug;

(c) Distributes any dangerous drug in any amount to a minor; or

(d) Manufactures a dangerous drug in any amount; provided that this subsection shall not apply to any person registered under section 329-32.

(2) Promoting a dangerous drug in the first degree is a class A felony.

[(3) Notwithstanding any law to the contrary, except for first-time offenders sentenced under section 706-622.5, if the commission of the offense of promoting a dangerous drug in the first degree under this section involved the possession, distribution, or manufacture of methamphetamine, or any of its salts, isomers, and salts of isomers, the person convicted shall be sentenced to an indeterminate term of imprisonment of twenty years with a mandatory minimum term of imprisonment, the length of which shall be not less than one year and not greater than ten years, at the discretion of the sentencing court for a conviction under subsection (1)(a), (1)(b), or (1)(c) and not less than ten years for a conviction under subsection (1)(d). The person convicted shall not be eligible for parole during the mandatory term of imprisonment.]"

SECTION 3. Section 712-1242, Hawaii Revised Statutes, is amended to read as follows:

"712-1242 Promoting a dangerous drug in the second degree. (1) A person commits the offense of promoting a dangerous drug in the second degree if the person knowingly:

(a) Possesses twenty-five or more capsules, tablets, ampules, dosage units, or syrettes, containing one or more dangerous drugs; or

(b) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of:

(i) One-eighth ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or

(ii) One-fourth ounce or more, containing any dangerous drug; or

(c) Distributes any dangerous drug in any amount.

(2) Promoting a dangerous drug in the second degree is a class B felony.

[(3) Notwithstanding any law to the contrary, except for first-time offenders sentenced under section 706-622.5, if the commission of the offense of promoting a dangerous drug in the second degree under this section involved the possession or distribution of methamphetamine, or any of its salts, isomers, and salts of isomers, the person convicted shall be sentenced to an indeterminate term of imprisonment of ten years with a mandatory minimum term of imprisonment, the length of which shall be not less than six months and not greater than five years, at the discretion of the sentencing court. The person convicted shall not be eligible for parole during the mandatory period of imprisonment.]"

SECTION 4. 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, except for first-time offenders sentenced under section 706-622.5, 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 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 6. Statutory material to be repealed is bracketed and stricken.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:

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