A BILL FOR AN ACT

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.

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 1,350. 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:

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 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 932 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.

The purpose of this proposal is to amend Hawaii's drug related penal statutes to 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 706, Hawaii Revised Statues is amended by adding a new section 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:

(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."

SECTION 3. Chapter 706, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§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:

(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."

SECTION 4. Chapter 706, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§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."

SECTION 5. Chapter 706, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§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 6. 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:

(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 7. 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 be 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.

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 8. This Act shall take effect July 1, 2002, except that section 7 shall take effect upon approval.