2023 ACLU of Hawaiʻi Legislative Agenda

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.

2023 LEGISLATIVE PRIORITIES

Policing Data

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.

Pretrail Fairness

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.

Clean Slate

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.

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).