Concurrent resolutions at the state Capitol call for studying the treatment of Native Hawaiian pa'ahao. – Photo: Blaine Fergerstrom

Study could unlock remedies for imprisoned Hawaiians, some say

By Liza Simon / Ka Wai Ola Loa

Several measures aimed at reducing the over-representation of Native Hawaiians in prison are advancing in the Legislature. The Senate has approved a bill creating a task force to study the causes of the disproportionately high numbers of Native Hawaiians and other ethnic groups within the state criminal justice system. Meanwhile, lawmakers in both houses are considering a set of concurrent resolutions – HCR 7 and SCR 8 – that would fund a study of the disparate treatment of Native Hawaiians in the state's criminal justice system.

All three measures would authorize a study to gather data from the departments of Public Safety and Judiciary and other state agencies to determine the impact of race and ethnicity on police arrests, availability of legal counsel, court decisions, sentencing procedures and recidivism rates.

Other factors to be assessed include the role of socioeconomic disadvantage, including limited employment and educational opportunities within the Hawaiian community. The study's findings would provide the basis for an action plan to prevent disparities in arrests and sentencing of Hawaiian prisoners. According to data cited in the concurrent resolutions, Native Hawaiians are arrested less than Caucasians, but face higher rates of conviction and longer terms than Caucasians or other ethnic groups. The concurrent resolutions are OHA measures, and similar to Senate Bill 560, would require OHA to provide funding and administrative help for the study.

"This legislation is long overdue," said Sen. Will Espero (D-'Ewa), chairman of the Senate Public Safety and Military Affairs Committee. Espero said high recidivism rates for Native Hawaiian offenders are especially alarming and must be addressed by lawmakers. "If there is a revolving door in the prisons for which government or the judicial system is partially responsible, then we want to see where improvements can be made and proceed for the sake of fairness to the entire community " he said, adding, "We need the studies done so we can identify where the need is most acute, and bring prevention tools such as drug prevention or family support services to the areas in need."

SB 560 proposes to set up a task force to perform the study. OHA asked that the task force be supplemented with an advisory council comprised of Native Hawaiian leaders. Meanwhile, the agency supports the intent of SB 560: "With accountable data, the study can produce clear recommendations for mandatory minimums, the three strikes law, drug laws and community re-entry. This information is greatly needed for legislation, lawmakers and advocates," OHA said in written testimony.

Native Hawaiians comprise 20 percent of the overall population, but account for 45 percent of the state's prison inmates. A barrage of grim reports from government and independent sources indicates this is part of a larger nationwide pattern of disproportionate rates of incarceration of minorities. Many justice advocates say this implicates racially biased policies within the criminal justice system. For black males in their 20s, one in eight is serving jail time, according to the African American Lawyers Association of Hawai'i, which supports SB 560. The racial disparities in prisons have been intensified by the unintended consequences of the "war on drugs," in which the majority of all people sentenced are non-Caucasian, says a report submitted to state lawmakers as part of the African American lawyers' testimony on SB 560.

In backing the bill, the Hawai'i State Democratic Women's Caucus also cited a national study indicating non-white drug offenders are likely to receive stiffer sentences than whites. In Hawai'i, this same pattern is also fostering widespread mistrust of the criminal justice system, the caucus said in written testimony.

During hearings on SB 560 and HCR 7, several community and nonprofit groups said they strongly favored the measures because they contained language documenting the extent to which children and families suffer as a result of disparate treatment of Native Hawaiian offenders. Kat Brady of the Community Alliance on Prisons told lawmakers: "Native Hawaiian children of inmates are also at increased risk of growing up without a parent to support them through the critical stages of growth and development. Moreover, the deviant activities that lead to arrests and incarceration … directly influence the safety and stability of communities, which may further hinder the prospects for Native Hawaiian children and adults."

Carrie Ann Shirota, a former public defender who supported the aim of SB 560, raised objections to placing the task force within a government agency. In written testimony, Shirota said the study should be outside the state's purview to ensure an independent and unbiased assessment of problems within the system. She also urged legislators to save money by using a similar Hawai'i study done in 1995 as the basis for an action plan in remedying disparities in the criminal justice system.

Senate lawmakers on March 10 passed SB 560 by a vote of 22 to 2, with the only "no's" cast by Sens. Sam Slom (R-Hawai' Kai, 'Āina Haina, Kāhala) and Fred Hemmings (R-Kailua, Lanikai). During a hearing on SB 560, Hemmings made comments that sparked a heated exchange with Sen. J. Kalani English (D-Hāna, East Maui). Hemmings reportedly used derogatory terms in referring to Native Hawaiian residents on Moloka'i. In a written statement issued afterward, he said he was pointing out that "a handful of malcontents (on Moloka'i) are destroying many good lives." Taking exception to Hemmings' remarks, English demanded that Hemmings apologize to the people of Moloka'i.

Hemmings told KWO that he opposed the bill because "government had enough information about high rates of Hawaiian incarceration and in hard economic times must now commit its limited resources to taking action and not just doing another study."

Espero dismissed Hemmings' objection, saying that a study to reduce numbers of Native Hawaiians in prison is cost effective. "Consider that takes up to $60,000 to incarcerate an individual for a year," Espero said. "A study that gives us information to reduce the high number of Hawaiian offenders won't just bring justice, it will also save the state money."

After passage in the Senate, SB 560 is now in the hands of the House. The OHA concurrent resolutions are awaiting committee hearings later this session.