HB2342

SECTION 1. The legislature finds that current state laws relating to certain violations of community supervision are resulting in unnecessary, counterproductive, skyrocketing rates of incarceration and severe overcrowding in local jails and prisons. Based on the Final Report of the House Concurrent Resolution No. 85 Task Force on Prison Reform, which was submitted to the legislature before the 2019 regular session, the incarcerated population is increasing at a much faster rate than the State's general population. From 1978 to 2016, the State's overall population increased by fifty-three per cent, while the State's combined jail and prison population increased by six hundred seventy per cent. In 2018, more than twenty-eight thousand Hawaii residents were incarcerated or under some form of probation, parole, or other form of community supervision. According to States of Incarceration: The Global Context 2021, a report of the Prison Policy Initiative, Hawaii has four hundred thirty-nine incarcerated persons for every one hundred thousand overall persons, or an incarcerated population at 0.439 per cent of the overall population, which is higher than in the Philippines (0.200 per cent), South Africa (0.248 per cent), Vermont (0.288 per cent), Russia (0.329 per cent), Turkey (0.332 per cent) and New York (0.376 per cent).

The legislature also finds that based on weekly population reports, typically one-fourth of all jail and prison admissions in Hawaii are the result of probation or parole technical violations, which are violations of the terms of legal supervision, other than the commission of certain crimes. Technical violations include: missing an appointment with a parole officer; working at a job during times that extended past curfew; using alcohol or drugs; failing to report a change in address; or associating with another person under legal supervision, even if that other person had no involvement in the defendant's crime. According to Confined and Costly: How Supervision Violations are Filling Prisons and Burdening Budgets, June 2019, a report of the Council of State Governments Justice Center, in 2017 fifty-three per cent of all prison admissions in the State were the result of technical violations. According to the Hawaii paroling authority's 2020 Annual Statistical Report for fiscal year 2020, three hundred twenty‑one of the three hundred ninety-four parole revocation hearings held resulted in the revocation of parole and the parolee's return to prison. Significantly, all of the three hundred twenty-one reincarcerated persons had committed technical violations of parole, meaning none of the violations were the result of new felony convictions.

The legislature further finds that the foregoing practices have unequal impacts. Native Hawaiians, Pacific Islanders, Black people, and poor people are disproportionately overrepresented at every stage of the criminal justice system, including the overcrowded jails and prisons. Research shows that incarceration interferes with employment, housing, health care, child custody, and other life opportunities, and results in negative impacts to families and communities.

The legislature also finds that incarceration for technical violations of parole is expensive. The State currently spends $219 per day, or $79,935 per year, to incarcerate just one person. Research shows that, in contrast, community-based services are a fraction of the cost of incarceration. Research also shows that investment in access to employment; housing; social services; and voluntary, community-based substance use treatment, mental health, and re-entry programs reduce recidivism more effectively than incarceration.

The purpose of this Act is to reform parole procedures to reduce the incarcerated population. Specifically, this Act:

(1) Creates a good time credit system, by which a parolee may reduce the parolee's sentence through compliance with conditions of parole;

(2) Provides that a condition of parole that prohibits unnecessary associations may only apply with respect to certain persons having a connection to the parolee's underlying crime or the prosecution of the crime;

(3) Provides that a condition of parole that prohibits the possession or use of alcohol or unauthorized drugs may only be imposed if it is reasonably related to the crime for which the parolee was convicted;

(4) Provides that substance abuse treatment shall not be required of a parolee if a program is not in the county of the parolee's residence and if the parolee has not been accepted into a program; and

(5) Prohibits incarceration for certain technical violations.

SECTION 2. Chapter 706, Hawaii Revised Statutes, is amended by adding a new section to part IV to be appropriately designated and to read as follows:

"§706- Good time credit system. (1) Notwithstanding any law to the contrary, there shall be a good time credit system through which a parolee may earn credit for compliance with the conditions of parole.

(2) A parolee shall earn a credit that is worth a reduction of days from the parolee's sentence for every days the parolee is in compliance with the conditions of parole.

(3) Credits may be forfeited, but only for failure to comply with a condition of parole, and only in proportion to the severity of the parolee's failure to comply with the condition.

(4) Credits earned under this section shall be earned in addition to any other credits for a criminal sentence that may be earned under applicable law."

SECTION 3. Section 353-1, Hawaii Revised Statutes, is amended by adding two new definitions to be appropriately inserted and to read as follows:

""Substance abuse treatment program" means drug or substance abuse treatment services provided outside a correctional facility by a public, private, or nonprofit entity that specializes in treating persons who are diagnosed with having substance abuse or dependency and preferably employs licensed professionals or certified substance abuse counselors."

""Technical violation" means any conduct that violates a condition of community supervision, other than the commitment of a new misdemeanor offense under chapter 134, chapter 707, or section 709-906, or a new felony offense."

SECTION 4. Section 353-63.5, Hawaii Revised Statutes, is amended to read as follows:

"[[]§353-63.5[]] Intermediate sanctions; eligibility; criteria and conditions. (a) The Hawaii paroling authority shall implement alternative programs that place, control, supervise, and treat selected parolees in lieu of incarceration.

(b) The authority may impose participation in alternative programs as a condition of parole or as an amended condition of parole[.]; provided that conditions relating to substance abuse treatment programs shall be subject to the limitations of section 353-66(g).

(c) As used in this section, "alternative programs" mean programs which, from time to time, are created and funded by legislative appropriation or federal grant naming the Hawaii paroling authority or the department of public safety on behalf of the Hawaii paroling authority as the expending agency and which are intended to provide an alternative to incarceration. Alternative programs may include:

(1) Home detention, curfew using electronic monitoring and surveillance, or both;

(2) Intensive supervision, residential supervision, work‑furlough, and structured educational or vocational programs;

(3) Therapeutic residential and nonresidential programs; [~~and~~]

(4) Substance abuse treatment programs; and

[~~(4)~~] (5) Similar programs created and designated as alternative programs by the legislature, the chairperson of the Hawaii paroling authority, or the director of public safety for parolees who do not pose significant risks to the community."

SECTION 5. Section 353-65, Hawaii Revised Statutes, is amended to read as follows:

"§353-65 Paroles; rules. The Hawaii paroling authority may establish rules, with the approval of the governor and the director of public safety not inconsistent with this part, under which any prisoner may be paroled but shall remain, while on parole, in the legal custody and under the control of the paroling authority, and be subject, at any time until the expiration of the term for which the prisoner was sentenced, to be taken back within the enclosure of the prison[.] if the prisoner commits a violation of the terms and conditions of parole, other than a technical violation. The rules shall have the force and effect of law. Full power, subject to this part, to enforce the rules, to grant, and to revoke paroles is conferred upon the paroling authority. The power to retake and reimprison a paroled prisoner is conferred upon the administrative secretary or the administrative secretary's designee, who may issue a warrant authorizing all of the officers named therein to arrest and return to actual custody any paroled prisoner[.] for any parole violation other than a technical violation. The superintendent of Hawaii state prison, the chief of police of each county and all police officers of the State or of any county, and all prison officers shall execute any such order in like manner as ordinary criminal process.

If any prisoner so paroled leaves the State without permission from the paroling authority, the prisoner shall be deemed to be an escaped prisoner, and may be arrested as such."

SECTION 6. Section 353-66, Hawaii Revised Statutes, is amended to read as follows:

"§353-66 Terms and conditions of parole; suspension and revocation. (a) Every parole granted under this part to any prisoner shall be subject to the express condition, to be set forth in the official written notification of parole to the prisoner, but to be binding upon the prisoner in any event, that all or any portion of the prisoner's credits earned or to be earned may be forfeited by order of the Hawaii paroling authority in the event that the prisoner [~~breaks the prisoner's parole or violates any law of the State or rule of the paroling authority or any of the terms or conditions of the prisoner's parole.~~] commits any violation of parole other than a technical violation.

(b) No parole shall be revoked and no credits forfeited without cause, which cause must be stated in the order revoking the parole, or forfeiting the credits after notice to the paroled prisoner of the paroled prisoner's alleged offense and an opportunity to be heard; provided that when a person is convicted in the State of a crime committed while on parole and is sentenced to imprisonment, or when it is shown by personal investigation that a parolee has left the State without permission from the paroling authority and due effort is made to reach the parolee by registered mail directed to the parolee's last known address, no hearing shall be required to revoke the parolee's parole; and provided further that when any duly licensed psychiatrist or licensed psychologist finds that continuance on parole will not be in the best interests of a parolee or the community, the paroling authority, within the limitations of the sentence imposed, shall order the detention and treatment of the prisoner until such time as the prisoner shall be found by any duly licensed psychiatrist or licensed psychologist to be eligible for continuance on parole.

(c) If any paroled prisoner leaves the State without permission from the paroling authority, or if the whereabouts of any paroled prisoner is not known to the paroling authority because of the neglect or failure of the prisoner to so inform it, the paroling authority may order the parole suspended pending apprehension. From and after the suspension of the parole of any paroled prisoner and until the paroled prisoner's return to custody, the paroled prisoner shall be deemed an escapee and a fugitive from justice, and no part of the time during which the paroled prisoner is an escapee and a fugitive from justice shall be part of the paroled prisoner's term.

(d) The paroling authority may at any time order the arrest and temporary return to custody of any paroled prisoner, as provided in section 353-65, for any parole violation other than a technical violation, for the purpose of ascertaining whether or not there is sufficient cause to warrant the paroled prisoner's reimprisonment or the revoking of the paroled prisoner's parole or other action provided for by this part.

(e) Any paroled prisoner retaken and reimprisoned as provided in this chapter shall be confined according to the paroled prisoner's sentence for that portion of the paroled prisoner's term remaining unserved at time of parole, but successive paroles may, in the discretion of the paroling authority, be granted to the prisoner during the life and in respect of the sentence. If the paroled prisoner [~~is retaken and reimprisoned for violating~~] has violated a condition of parole but [~~has not:~~

~~(1)~~ ~~Been charged with a new felony offense or a new misdemeanor offense under chapter 134, chapter 707, or section 709-906;~~

~~(2)~~ ~~Absconded or left the State without permission from the paroling authority;~~

~~(3)~~ ~~Violated conditions applicable to sex offenders, such as registering as a sex offender or conditions related to proximity to specified locations or persons; or~~

~~(4)~~ ~~Been previously reimprisoned for violating the conditions of parole on the current offense,~~]

the paroled prisoner shall be confined for no more than six months or for that portion of the paroled prisoner's term remaining unserved at the time of parole, whichever is shorter, so long as the paroling authority has approved a parole plan as set forth under section 706-670(3) and (4). The] the violation is a technical violation, the paroled prisoner shall not be reimprisoned for the parole violation but shall be subject to subsection (f). For any other type of parole violation, minimum term of imprisonment shall be as determined by the court or the paroling authority, as the case may be. The prisoner shall be given credit for time served in custody pending a hearing on revocation of parole as it relates to the six-month parole revocation. No prisoner shall be incarcerated beyond the expiration of the prisoner's maximum terms of imprisonment.

(f) The paroling authority, having probable cause to believe that a parolee has failed to comply with a requirement imposed as a condition of parole, if the failure to comply was a technical violation, may issue the parolee a written notice of a hearing that states the parolee's alleged violation and the date, time, location, and purpose of the hearing.

(g) The paroling authority shall not revoke parole based on the parolee's failure to undergo and complete a substance abuse treatment program if there is no qualifying substance abuse treatment program available in the county in which the parolee resides, or if no qualifying substance abuse program accepted the parolee, in spite of the parolee's submission of complete and timely applications to enter qualifying substance abuse treatment programs.

(h) The paroling authority shall not revoke parole based on the parolee's failure to refrain from the use of alcohol, or any use of narcotic drugs or controlled substances without a prescription, unless the possession or use of alcohol or prohibited drugs is reasonably related to the offense for which the parolee was convicted.

[~~(f)~~] (i) The Hawaii paroling authority may require a paroled prisoner to undergo and complete a substance abuse treatment program when the paroled prisoner has committed a violation of the terms and conditions of parole involving possession or use, not including to distribute or manufacture as defined in section 712-1240, of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712-1240, unlawful methamphetamine trafficking as provided in section 712-1240.6, or involving possession or use of drug paraphernalia under section 329-43.5. If the paroled prisoner fails to complete the substance abuse treatment program or the Hawaii paroling authority determines that the paroled prisoner cannot benefit from any substance abuse treatment program, the paroled prisoner shall be subject to revocation of parole, except as provided in subsection (g), and return to incarceration[.], unless the parolee's parole violation consists solely of a technical violation. As a condition of parole, the Hawaii paroling authority may require the paroled prisoner to:

(1) Be assessed by a certified substance abuse counselor for substance abuse dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index;

(2) Present a proposal to receive substance abuse treatment in accordance with the treatment plan prepared by a certified substance abuse counselor through a substance abuse treatment program that includes an identified source of payment for the treatment program;

(3) Contribute to the cost of the substance abuse treatment program; and

(4) Comply with any other terms and conditions for parole.

[As used in this subsection, "substance abuse treatment program" means drug or substance abuse treatment services provided outside a correctional facility by a public, private, or nonprofit entity that specializes in treating persons who are diagnosed with having substance abuse or dependency and preferably employs licensed professionals or certified substance abuse counselors.]

Nothing in this subsection or subsection (g) shall be construed to give rise to a cause of action against the State, a state employee, or a treatment provider."

SECTION 7. Section 706-670, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (2) to read:

"(2) Parole conditions. The authority, as a condition of parole, may impose reasonable conditions on the prisoner as provided under section 706-624[.]; provided that:

(a) Notwithstanding section 706-624(2)(g), the authority shall not prohibit association with any person unless the person has or had any involvement in the crime for which the parolee was convicted, or in any events leading to the arrest, prosecution, or conviction of the parolee; including any victim of the crime, any witness, regardless of whether the witness actually testified in the prosecution; any law enforcement officer; any co-defendant; or any other relevant individual;

(b) Notwithstanding section 706-624(2)(h), the authority shall not require the parolee to refrain from the use of alcohol, or any use of narcotic drugs or controlled substances without a prescription, unless the possession or use of alcohol or prohibited drugs is reasonably related to the offense for which the parolee was convicted; and

(c) Notwithstanding section 706-624(2)(j), the authority shall not require the parolee to undergo a substance abuse treatment program if no qualifying substance abuse treatment program is available in the county in which the parolee resides, or if no qualifying substance abuse program accepts the parolee, in spite of the parolee's submission of complete and timely applications to enter qualifying substance abuse treatment programs."

2. By amending subsections (7) and (8) to read:

(7) [~~Revocation hearing.~~] Hearing on alleged parole violation. When a parolee has been [~~recommitted,~~] of violating a condition of parole the authority shall hold a hearing within sixty days after the parolee's return to prison or the date of the written notice specified in section 353-66(f), whichever is applicable, to determine whether parole should be revoked. The parolee shall have reasonable notice of the grounds alleged for revocation of the parolee's parole. The institutional parole staff shall render reasonable aid to the parolee in preparation for the hearing. In addition, the parolee shall have, with respect to the revocation hearing, those rights set forth in subsection (3)(a), (3)(b), (3)(c), and (3)(d). A record of the hearing shall be made and preserved as provided in subsection (4).

(8) [~~Length of recommitment and reparole after revocation~~] Revocation of parole. If a parolee's parole is revoked[,] for a technical violation, the authority may impose any sanctions upon the parolee other than reimprisonment. If the parolee's parole is revoked for any other type of violation, the term of further imprisonment upon [~~such~~] recommitment and of any subsequent reparole or recommitment under the same sentence shall be fixed by the authority but shall not exceed in aggregate length the unserved balance of the maximum term of imprisonment."

SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2342
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII