LEGISLATIVE UPDATE (3-15-23)
Mahalo for your continued support in our collective efforts to create a safer, more just, and equitable Hawaiʻi. Here’s an update on how our 2023 legislative priorities have moved through the session. Now that we’ve passed the first crossover, we’re focusing our advocacy efforts around the following measures:
POLICING DATA COLLECTION (HB880 HD1)
Police must be transparent, accountable, and responsible to the communities they serve. This data collection bill is a measured step in advancing transparency and accountability related to policing in Hawai’i. It requires each county police department to collect, report, and publicly publish certain data regarding police stops, arrests, uses of force, and trends.
CRIMINAL JUSTICE REFORM (HB1336 HD2)
Mass incarceration harms not just those who are detained, but their families and our extended communities. Our current pretrial system is a particularly destructive form of wealth-based detention that perpetuates cycles of poverty, increases the likelihood of future criminal legal system involvement, and disproportionately harms Native Hawaiians, Pacific Islanders, and communities of color who are overrepresented in the criminal legal system. We should be reinvesting in community solutions that include treatment and reentry options for people struggling with substance use. This omnibus criminal justice reform bill, modifies the circumstances under which police issue citations in lieu of arrests, authorizes a grace period after a missed initial court appearance, amends various provisions related to pretrial release, allows the court to order substance abuse assessment and treatment and removes, and removes punitive drug use screenings from parole and probation processes.
CANNABIS REFORM (SB669 SD2)
Far too many people are arrested and convicted for simple marijuana possession, needlessly entangling them in a criminal legal system that ruins lives. The enforcement of cannabis laws generates some of the starkest racial disparities, billions in financial waste, and counterproductive measures. The time is now for comprehensive drug reform, including cannabis decriminalization and expungement. This bill is a measured step toward comprehensive equitable policies to legalize, tax, and regulate adult use of cannabis and redress the devastating effects of marijuana prohibition policies. It decriminalizes and establishes regulations for the cultivation, manufacture, sale, and personal use of small amounts of cannabis.
POLICE DUTY TO INTERVENE (SB372 SD1)
This measure codifies “the right to intervene” if law enforcement officers believe that other officers are using unnecessary or excessive force on an individual. It also requires the same law enforcement officers to report the incident to a supervisor and requires police departments to submit an annual report to the legislature.
ABORTION ACCESS (SB1 SD2)
Abortion is legal in Hawaiʻi, but healthcare and abortion access are inaccessible to many women and other people across the pae'āina, especially those who are poor, those who live in rural areas or on islands without easily accessible clinics, and for Native Hawaiians, Pacific Islanders, and people of color who already experience significant health disparities. This measure protects and expands access to abortion. It allows licensed physician assistants to perform certain abortions, repeals the location requirement, and protects the privacy rights of those who seek abortions.
More detailed information about the ACLU of Hawai‘i priority bills for the 2023 legislative session is below.
The State of Policing Data in Hawaiʻi
Our laws give police extraordinary authority. Police can stop anyone, search them, and even use lethal force. An increasing number of states are calling for more transparency and accountability from police departments and officers when they abuse their authority. Several states have enacted legislation requiring policing data collection. This proposed measure also aligns with the Presidential Executive Order on Advancing Effective, Accountable, Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety. Current policing data collection in Hawaiʻi is inadequate. The data available lacks uniformity and varies from county to county, making it hard to understand, decipher, and evaluate the efficacy of policing practices.
Why Policing Data Collection is Needed?
Police must be transparent, accountable, and responsive to the communities they serve. A policing data collection bill is a measured step to advance transparency and accountability to policing in Hawaiʻi. Comprehensive data will enhance transparency by providing a better understanding of the reasons for police stops and arrests. It can identify and reduce racial profiling and improve relationships between law enforcement and the communities they serve.
What will a Policing Data Collection bill do?
This bill will require police departments in all counties to submit an annual report to the state legislature and to make the underlying data accessible to the public. This bill will outline the collection of data relating to: traffic and detention stops, arrests, use of force, felony arrests, police complaints, misconduct, and demographic data.
Pretrial Reform in Hawaiʻi
In Hawaiʻi, approximately 50 percent of the people in jails at any given time have not been convicted of a crime. This high rate of pretrial detention means hundreds of people are locked in jail simply because they cannot afford the amount of bail set by the judge.
Individuals awaiting trial in jail are more likely to receive jail or prison sentences, and longer sentences, than those who are released before their trial. The loss of income, possible loss of employment and housing, disruption of prescribed medications, and stresses on one’s family drive many people to accept plea bargains, just to get out.
Why is Pretrial Reform Needed?
Under our federal and state constitutions, liberty is the norm and detention prior to trial or without trial is the carefully limited exception. However, in Hawaiʻi, pretrial detention is often the default decision by the courts, resulting in a person’s loss of freedom. This practice violates constitutional protections, due process, equal protection, including the Eighth Amendment (prohibits excessive bail and cruel and unusual punishment). It is also contrary to the fundamental American principle that one is innocent until proven guilty. Setting cash bail at an unaffordable amount not only violates the Constitution but also permanently destroys the lives and livelihoods of thousands of families in Hawaiʻi.
The proposed measure establishes a presumption that a person charged with a crime is entitled to unconditional release. It also requires the State to prove by clear and convincing evidence that detention is necessary to prevent willful flight, specific danger to a person/s, and/or obstruction of justice. It ensures that detention is imposed through a fair process that includes a prompt hearing and appeal, notice of issues and evidence. Pretrial reform will advance a fair process for people awaiting trial, more equitable sentences, reduce overcrowding in our jails, and carefully balance constitutional rights and public safety.
What is “Clean Slate"?
Under Clean Slate, people are eligible to have their past arrest and conviction records automatically erased after a period of time has passed.
Why “Clean Slate”?
The ACLU believes that people should be able to live with a Clean Slate after they have paid their debt to society. When people returning from jail have greater access to jobs, housing, and higher education, they are less likely to recidivate and are better able to provide for themselves and their families.
Studies show that those with older conviction records are about as likely to commit a new crime as those with no criminal history.1
What does a “Clean Slate” bill look like?
This measure will expand eligibility for expungement beyond arrests and limited number of convictions. It would require the State to create a system that automates record clearance and requires automatic clearance upon eligibility of the record. This would also include arrest records, misdemeanor records, and eligibility of some felony records.
HB880 HD1 Data Collection; Police Stops; Arrests; Uses of Force; Report
RELATING TO POLICING. Requires each county police department to collect, report, and publicly publish certain data regarding police stops, arrests, uses of force, and trends. Effective 12/1/23. Referred to PSM, JDC. Still active.
HB1336 HD2 Courts; Corrections; Arrests; Pretrial Release; Parole; Revocation
RELATING TO CRIMINAL JUSTICE REFORM. Part I: Expands the authorized issuance of citations in lieu of arrests. Authorizes a grace period after a missed initial court appearance. Part II: Amends various provisions related to pretrial release. Part III: Allows the court to order substance abuse assessment and treatment. Prohibits the arrest of a parolee, or the revocation of parole, solely due to the defendant having one positive test for drug use. Effective 6/30/3000. (HD2). Referred to PSM, JDC. Still active.
SB669 SD2 Adult-Use Cannabis; Hawaiʻi Cannabis Regulatory Authority; Medical Cannabis; Taxation
RELATING TO CANNABIS. Establishes regulations for the cultivation, manufacture, sale, and personal use of small amounts of cannabis. Decriminalizes and regulates small amounts of cannabis for personal use. Establishes taxes for cannabis sales. Takes effect 03/22/2075. (SD2) Referred to JHA/AGR, CPC. Still active.
SB372 SD1 Law Enforcement Officers; Arrests; Excessive Force; Duty to Intervene
RELATING TO GOVERNMENT SERVICES RELATING TO THE LAW. Provides that a law enforcement officer has a duty to intervene if the law enforcement officer reasonably believes that another law enforcement officer is using unnecessary or excessive force on an arrestee. Requires the law enforcement officer to report the incident to the fellow law enforcement officer's supervisor. Requires relevant departments to submit annual reports to the Legislature. Takes effect 1/1/2050. (SD1). Hearing Scheduled 3/16. Still active.
SB1 SD2 Abortion; Physician Assistants; Consent by Minors; Reproductive Health Care Services; Disclosures; Subpoenas; Licensing Authorities; Disciplinary Action; Investigations; Proceedings
RELATING TO HEALTH CARE. Allows licensed physician assistants to perform certain abortions. Repeals the requirement that abortions be performed at certain locations. Clarifies that the State shall not deny or interfere with a pregnant person's right to choose to (1) obtain an abortion or (2) if necessary to protect the life or health of the patient terminate the pregnancy. Defines "abortion" and "nonviable fetus". Prohibits a covered entity from disclosing information relating to reproductive health care services. Prohibits the issuance of a subpoena in connection with an out-of-state or interstate proceeding relating to reproductive health care services legally performed in the State. Prohibits agencies from providing information or expending resources in the furtherance of out-of-state or interstate investigations or proceedings relating to reproductive health care services. Prohibits the State from taking adverse action based on pregnancy outcomes or for aiding or assisting a pregnant individual with accessing reproductive health care services. Requires the Governor to deny any demand for surrender of a person charged with a crime involving reproductive health care services unless the conduct constitutes a crime in the State or is made under Article IV, section 2, of the U.S. Constitution. Enumerates laws contrary to public policy and prohibits their application. Prohibits the issuance of a summons for persons to testify in another state with regard to lawful reproductive health care services. Clarifies under various licensing statutes that the provision or assistance in receipt or provision of certain services related to the human reproductive system cannot form a basis for disciplinary action. Prohibits the enforcement of a judgment or order arising from a foreign penal civil action or other penal law with respect to reproductive health care services. Amends the definition of "medical care and services" so that a minor may...(see document for full description) (SD2). Referred to HLT/JHA. Hearing Scheduled 3/15. Still active.
SB1168 Criminal Records; Arrest; Conviction; Automatic Expungement
RELATING TO EXPUNGEMENT OF CRIMINAL RECORDS. Expands eligibility for, and automates, the expungement of arrest and conviction records if certain criteria are met, including the lack of a conviction record for a specified time period following the date of an arrest, conviction, or release from incarceration. Requires the Attorney General to issue automatic expungement orders for certain arrests and convictions beginning 12/1/2025. Requires the Judiciary to automatically seal or remove information for certain arrests and convictions from publicly accessible databases beginning 12/1/2025. Referred to JDC. No hearings scheduled.
HB1279 Crime; Unconditional Release; Pre-trial Release; Bail
RELATING TO BAIL. Establishes a rebuttable presumption that a person charged with a crime is entitled to unconditional release. Requires the court to consider conditioning pre-trial release on nonfinancial conditions before ordering bail if unconditional release is inappropriate. Referred to JHA/CMV, FIN. No hearings scheduled.
SB350 Bail; Release; Detention
RELATING TO CRIMINAL PRETRIAL REFORM. Eliminates the use of monetary bail and requires defendants to be released on their own recognizance for traffic offenses; violations; and nonviolent petty misdemeanor, misdemeanor, and nonviolent class C felony offenses, with certain exceptions. Referred to PSM, JDC. No hearings scheduled.
1 Megan C. Kurlychek, et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 CRIMINOLOGY & PUB. POL’Y 483, 498-500 (2006).