Honorable Robert Bunda

President of the Senate

Twenty-First State Legislature

Regular Session of 2001

State of Hawaii

Sir:

Your Committees on Health and Human Services and Judiciary, to which was referred H.B. No. 176, H.D. 3, entitled:

beg leave to report as follows:

The purpose of this measure is to require community-based supervision and treatment for offenders convicted of nonviolent drug possession offenses, and probationers and parolees who are at-risk of revocation because of continued drug use.

Your Committees received testimony in support of this measure from the Judiciary, Department of Public Safety, Department of Health (DOH), Public Defender, Hawaii Paroling Authority, Mental Health Association of Hawaii, Community Alliance on Prisons, TJ Mahoney & Associates, Out of Prison Services, American Civil Liberties Union Hawaii, Government Efficiency Teams, Inc., and six private citizens. Testimony in opposition was received from the Honolulu Prosecuting Attorney, Maui Prosecuting Attorney, Honolulu Police Department, and Drug Policy Forum of Hawaii.

This measure requires that a person convicted of a nonviolent drug possession offense be sentenced to probation. "Nonviolent drug possession offense" is where the drugs, intoxicating compounds, or drug paraphernalia are solely for personal use, and excludes the possession for sale, production, or manufacture of any drugs or intoxicating compounds. As a condition of probation, the court is required to assess the defendant, the assessment to be conducted by a person certified by the DOH to conduct such assessments. Certain specified offenders are not eligible for probation under the measure.

This measure prohibits the court from revoking probation for a first violation of a nonviolent drug related probation condition under specified circumstances. This measure further prohibits the Hawaii Paroling Authority from revoking parole for the first violation of a nonviolent drug related parole condition under specified circumstances.

Your Committees find that the link between substance abuse and crime is well established. In the past, Hawaii has dealt with reducing crime by increasing criminal penalties. The results have been discouraging, as evidenced by the continued rise in crime rates in general and recidivism in particular. This measure represents the principle of harm reduction, which is a set of practical strategies that reduce the negative consequences of drug use. Harm reduction does not attempt to minimize or ignore the real and tragic harm and danger associated with licit and illicit drug use. Rather, it attempts to shift the focus of drug control policies from law enforcement and criminal justice to public health, in recognition that the problem is essentially one of disease rather than criminality. Your Committees do not wish to diminish the seriousness of crime, but look to approaching crime as being the result of addiction that is treatable. The treatment route is expected to produce a reduction in crime and recidivism. In the process, the State will save money on incarceration, societal ills will diminish, and social services will not be diverted from more pressing needs such as welfare for the disabled.

Your Committees further find that many first time offenders are not receiving any treatment for their substance abuse problems. Your Committees concur with the main thrust of the measure that promoting treatment of nonviolent substance abuse offenders, rather than incarceration, is best for the individual and the community at large.

Although this measure garnered much support, your Committees are concerned about the problems associated with a drastic change in sentencing. Testimony in opposition raised serious concerns about the effectiveness of a mandatory diversion program of sentencing as proposed in this measure. Your Committees particularly note the testimony of Judges Jeffrey Tauber of California and James Aiona, Jr., of Honolulu, that more study is necessary on the effectiveness of California's Proposition 36 and Arizona's Proposition 200, emphasizing that there is no valid, reliable data to date. In particular, Judge Tauber characterized this measure and its companion, S.B. No. 1188, as "quite alarming" by excluding the judges entirely in exercising discretion in sentencing a defendant who is involved with drugs. Judge Tauber noted that a similar proposition did not pass in Massachusetts and that Hawaii would become the first state to pass a legislative enactment.

Your Committees have amended this measure by:

As affirmed by the records of votes of the members of your Committees on Health and Human Services and Judiciary that are attached to this report, your Committees are in accord with the intent and purpose of H.B. No. 176, H.D. 3, as amended herein, and recommend that it pass Second Reading in the form attached hereto as H.B. No. 176, H.D. 3, S.D. 1, and be referred to the Committee on Ways and Means.