HB2344 HD1

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 Creating Better Outcomes, Safer Communities, Final Report of the House Concurrent Resolution 85 Task Force on Prison Reform to the Hawai‘i Legislature, which was submitted before the regular session of 2019, 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 of 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. 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 probation 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 probation procedures by:

(1) Requiring a probation officer to conduct a formal review of a defendant's progress halfway through the defendant's period of probation and provide the defendant information on how to file a motion with the court for early termination of probation, if the defendant so chooses; and

(2) Giving a probation or law enforcement officer who has probable cause to believe a defendant has failed to comply with a discretionary condition of probation under section 706-624(2), Hawaii Revised Statutes, the discretion to issue the defendant a written notice of a court hearing that states the defendant's alleged violation and the date, time, location, and purpose of the hearing.

SECTION 2. Section 706-625, Hawaii Revised Statutes, is amended to read as follows:

"§706-625 Revocation, modification of probation conditions. (1) The court, on application of a probation officer, the prosecuting attorney, the defendant, or on its own motion, after a hearing, may revoke probation except as provided in subsection [~~(7),~~] (6), reduce or enlarge the conditions of a sentence of probation, pursuant to the provisions applicable to the initial setting of the conditions and the provisions of section 706-627.

(2) The prosecuting attorney, the defendant's probation officer, and the defendant shall be notified by the movant in writing of the time, place, and date of any such hearing, and of the grounds upon which action under this section is proposed. The prosecuting attorney, the defendant's probation officer, and the defendant may appear in the hearing to oppose or support the application, and may submit evidence for the court's consideration. The defendant shall have the right to be represented by counsel. For purposes of this section the court shall not be bound by the Hawaii rules of evidence, except for the rules pertaining to privileges.

(3) The court shall revoke probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or has been convicted of a felony. The court may revoke the suspension of sentence or probation if the defendant has been convicted of another crime other than a felony.

(4) The court may modify the requirements imposed on the defendant or impose further requirements, if it finds that such action will assist the defendant in leading a law-abiding life.

(5) When the court revokes probation, it may impose on the defendant any sentence that might have been imposed originally for the crime of which the defendant was convicted.

[~~(6) As used in this section, "conviction" means that a judgment has been pronounced upon the verdict.~~

~~(7)~~] (6) The court may require a defendant to undergo and complete a substance abuse treatment program when the defendant has committed a violation of the terms and conditions of probation 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 712-1240.7 or section 712-1240.6[,] as that section was in effect prior to June 22, 2006; or involving possession or use of drug paraphernalia under section 329-43.5. If the defendant fails to complete the substance abuse treatment program or the court determines that the defendant cannot benefit from any other suitable substance abuse treatment program, the defendant shall be subject to revocation of probation and incarceration. The court may require the defendant to:

(a) 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;

(b) 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;

(d) Comply with any other terms and conditions of probation.

[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 substance abuse or dependency and preferably employs licensed professionals or certified substance abuse counselors.]

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

(7) Halfway through the defendant's period of probation, the probation officer shall conduct a formal review of the defendant's progress and shall provide the defendant information on how to file a motion with the court for early termination of probation, if the defendant so chooses.

(8) As used in this section:

"Convicted" means that a judgment has been pronounced upon the verdict.

"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 substance abuse or dependency and preferably employs licensed professionals or certified substance abuse counselors."

SECTION 3. Section 706-626, Hawaii Revised Statutes, is amended to read as follows:

"§706-626 Summons or arrest of defendant on probation; commitment without bail. At any time before the discharge of the defendant or the termination of the period of probation:

(1) The court may, in connection with the probation, summon the defendant to appear before it or may issue a warrant for the defendant's arrest;

(2) A probation or law enforcement officer, having probable cause to believe that the defendant has failed to comply with a discretionary condition under section 706-624(2) imposed as a condition of the order, may issue the defendant a written notice of a court hearing that states the defendant's alleged violation and the date, time, location, and purpose of the hearing;

[~~(2)~~] (3) A probation or law enforcement officer, having probable cause to believe that the defendant has failed to comply with a requirement imposed as a condition of the order, may arrest the defendant without a warrant, and the defendant shall be held in custody pending the posting of bail pursuant to a bail schedule established by the court, or until a hearing date is set; provided that when the punishment for the original offense does not exceed one year, the probation or law enforcement officer may admit the probationer to bail; or

[~~(3)~~] (4) The court, if there is probable cause to believe that the defendant has committed another crime or has been held to answer therefor, may commit the defendant without bail, pending a determination of the charge by the court having jurisdiction thereof."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect on July 1, 3000.

HOUSE OF REPRESENTATIVES	H.B. NO.	2344
THIRTY-FIRST LEGISLATURE, 2022		H.D. 1
STATE OF HAWAII