Other States Are Shrinking Prison Populations — Why Not Hawaii?

Honolulu Civil Beat

By Rui Kaneya

Hawaii was an outlier.

For decades, people accused of stealing property or services worth more than $300 in the islands faced an automatic felony charge and up to five years in prison.

In most other states, people had to steal considerably more to face such serious consequences.

Earlier this year, the Legislature adopted a measure that, among other things, raised the so-called felony theft threshold to $750.

The move was aimed at diverting low-level, nonviolent offenders from the state’s overcrowded prisons, an idea first proposed as part of the Justice Reinvestment Initiative — an ambitious program adopted by Hawaii and dozens of other states to overhaul the criminal justice system.

The measure’s passage represented a hard-fought victory for the JRI’s proponents, who pushed for years to raise the felony threshold — which had gone unchanged since 1986.

But there was fine print: Bowing to fierce opposition from prosecutors and law enforcement officials, state lawmakers also made another change in the penal code, subjecting “habitual” theft offenders to mandatory minimum sentences.

The net effect, critics say, is that the two changes will cancel each other out, dashing hopes for any dramatic reduction in the state’s inmate population.

The episode underscores the fact that Hawaii has been reluctant to embrace reform. As a result, the JRI hasn’t lived up to its potential since its launch four years ago.

According to the Council of State Governments Justice Center, which provided technical assistance, the JRI was projected to help reduce the state’s inmate population by more than 900 inmates by the end of fiscal year 2016 — and by 1,010 inmates by fiscal year 2018.

But, at the end of October, the state still housed more than 5,800 inmates, including about 1,400 prisoners at a for-profit prison in Arizona.

That’s only about 250 fewer inmates than when the JRI was adopted.

Hopes For Sweeping Changes

In June 2012, then-Gov. Neil Abercrombie signed two measures that became the basis for the JRI. More than 6,000 Hawaii inmates were behind bars, a third of them housed on the mainland.

Abercrombie, a former probation officer, hailed the JRI as a game-changer to reduce the state’s inmate population, with the ultimate goal of bringing all prisoners back to Hawaii.

But the JRI was about much more than prison capacities; it was a fundamental rethinking of Hawaii’s criminal justice system — a shift from the get-tough, lock-’em-up approach to one that promoted rehabilitation and reduced recidivism.

The state created the Justice Reinvestment Working Group, a committee made up of representatives from three branches of government, to come up with policy solutions that would form the backbone of the JRI.

With the help of the Council of State Governments Justice Center, the working group spent more than seven months analyzing data from the state’s criminal justice system and emerged with 10 recommendations.

One focused on alternatives to incarceration — proposing that second-time, nonviolent drug offenders be eligible for probation.

Another recommendation proposed to establish “re-entry intake service centers” within the Hawaii Department of Public Safety to conduct pretrial assessments within three days of inmates’ bookings.

The idea was to speed up the release of those facing charges, either on bail or under other conditions.

The working group also proposed to expand the size of the parole board from three to five members, with the idea that they’d increase the capacity to release more prisoners on parole.

Eventually, all of the recommendations were incorporated into early versions of House Bill 2515 and Senate Bill 2776.

The Council of State Governments Justice Center estimated then that the recommendations — if adopted in full — would lead to a savings of more than $150 million by the end of fiscal year 2018 and allow the state to reinvest $42 million into strategies that promote rehabilitation and reduce recidivism.

In the end, though, the lawmakers stripped three of the recommendations from the measures before sending them to Abercrombie’s desk.

One of the rejected recommendations was the raising of the felony theft threshold — which had generated intense backlash.

Also rejected was a recommendation that all prisoners be granted parole and placed under supervision for a “minimum period” — instead of allowing them to serve maximum terms.

The idea was to reduce the recidivism rate among “maxed out” prisoners, but legislators decided that it was too risky to release those who weren’t interested in parole.

And the lawmakers rejected a recommendation to make it possible to post bail 24 hours a day and expand methods of payment — additional ideas designed to reduce the length of jail stay for pretrial inmates.

Kat Brady, coordinator of the Community Alliance on Prisons, said the state passed up a golden opportunity to make a lasting, positive change to the state’s criminal justice system.

“We were really, really disappointed,” Brady said. “The bills were really strong, and they could have saved us lots and lots of money.”

No Progress On Parole

Even some of the recommendations that were adopted by the Legislature aren’t having much impact.

In fiscal year 2015, for instance, it still took an average of 32 days for pretrial inmates to be released on bail and 84 days on supervised release — virtually unchanged since fiscal year 2011.

That’s despite the fact that the Department of Public Safety has been conducting pretrial assessments within three days, as mandated under the JRI.

Meanwhile, the JRI has allowed the Hawaii Paroling Authority to bring on two additional parole board members and four full-time parole officers.

But the agency has been granting parole to considerably fewer prisoners during the past two years.

Carrie Ann Shirota, a prison-reform advocate on Maui, blames the results on a lack of ongoing evaluations to assess the JRI’s progress.

Such evaluations, Shirota said, are needed “to continue doing what works and improve upon areas that have proven less effective in reducing the overall incarcerated population.”

Bree Derrick, program director of state initiatives at the Council of State Governments Justice Center, pointed out that many of the other 25 states that have adopted the JRI are “looking for solutions on an active and continuing basis.”

“Many states are seeing the reform efforts as happening multiple times over many years and using the data to inform that process repeatedly,” Derrick said. “That’s where we see where the ultimate success is.”

But Hawaii has no mechanism for follow-up evaluations — the working group disbanded long ago, and the state no longer receives technical assistance from the Council of State Governments Justice Center.

State Sen. Will Espero, vice chair of the Senate Public Safety Committee, says he’s intent on changing that.

“Now might be a good time to analyze where the JRI’s shortcomings are,” Espero said. “That’ll tell us what we need to do next, whether it’s a bill or resolution. Or it could be tweaks in the way we run some programs.”

‘Afraid Of Appearing Soft On Crime’

Judith Greene, executive director of Justice Strategies, a New York-based think tank on criminal justice issues, points out a broader issue with the JRI: Across the country, the program is driven by what she calls a “technocratic, top-down process” — without a groundswell of grassroots support.

Greene said California, New Jersey and New York have managed to make significant cuts in their inmate populations — but they did so without adopting the JRI. The main ingredient for success was that there was “a vigorous public engagement” around the issue of mass incarceration.

“The biggest takeaway is that most significant changes, if the states want to improve the criminal justice system, come when citizens and residents of the states are motivated,” Greene said.

Jack Tonaki, the state public defender, says that’s where Hawaii might fall short.

“We’re liberal on many issues but, with respect to crime, we are probably on a conservative side,” Tonaki said. “That’s because, as an island state, we have very little violence here, relatively speaking. People are proud of that and they don’t want to see that changed to where violent crimes get to be like in other states.”

Shirota says the state’s elected officials, in turn, tend to be “afraid of appearing soft on crime in the eyes of the public.”

“Many politicians … assume that voters believe in a retributive model of justice,” Shirota said. “But I firmly believe that leaders are misreading the pulse of our community when it comes to criminal justice policies.”

James Austin, president of the JFA Institute, a nonprofit consulting firm on criminal justice issues, said that, if Hawaii were to make success out of the JRI, lawmakers have to be willing to take some political risks.

“The bottom line is that, when you say you’re not going to change the sentencing laws for violent or repeat offenders, you’re stuck. You’re not going anywhere,” Austin said.

Still, Greene says it’s only a matter of time before Hawaii catches up to much of the rest of the country, where “criminal justice reform and policy accountability loom large.”

“I’m feeling pretty optimistic that we’ve turned the corner, and it doesn’t look like we’re going to go back,” Greene said. “It’s been a long time since most politicians still called for the old, lock-’em-up approach that hasn’t worked.”