Hawaii Bar Journal - June 2023

Susan

Ryan Hamaguchi

Cynthia Johiro

Edward Kemper

Laurel Loo

Melvin M M Masuda

Eaton O'Neill

Lennes Omuro

Brett Tobin

HSBA OFFICERS President

Rhonda Griswold

President-Elect

Jesse Souki

Vice President

Mark M Murakami

Secretary

Lanson Kupau

Treasurer

Alika Piper

YLD OFFICERS President

Lisa Yang

Vice President/President-Elect

Kelcie Nagata

Secretary

Danica Swenson Treasurer

Andria Schumann EXECUTIVE DIRECTOR

Patricia Mau-Shimizu

Art Direction

On the Cover: L i m e a n d L u n a M o t h s by B o z S c h u r r. B o z i s c u r r e n t l y a d r a w i n g, p a i n t i n g a n d computer illustration and animation teacher at K amehameha Schools K apālama and a freelance g r a p h i c d e s i g n e r, mu r a l i s t a n d a r t i s t / i l l u s t r at o r. S h e e n j oy s t r ave l i n g t h e wo rl d ( wh e n s h e c a n ) , p a i n t i n g mu r a l s a ro u n d t h e i s l a n d , r u n n i n g, d r i n k i n g c o f f e e a n d ch i l l i n g w i t h h e r c at B oz ’ s a r two rk ex p l o re s t h e b ro a d s c o p e o f m e n t a l h e a l t h ex p e r i e n c e s u s i n g t h e v i s i bl e c o l o r s p e c t r u m a s a v i s u a l a l l e g o r y H e r p o r t fo l i o a n d c o n t a c t i n fo r m at i o n c a n b e v i e we d at w w w b oz s ch u r r c o m

to provide general infor mation only, with regard to the subject matter covered It is not a substitute for legal, accounting, or other professional services or advice This publication is intended for educational and infor mational purposes only Nothing contained in this publication is to be considered as the rendering of legal advice

LAW FORUM CRIMINAL

ACKNOWLEDGMENTS

The Hawai‘i State Bar Association Committee on Judicial Administration was established for the pur pose of maintaining a close relationship with the Judiciary on matters of mutual concer n to the bench and bar. Since 2012, the Bench-Bar Conferences and in alter nate years, the Criminal, Civil, and Family Law Forums have been positive and constructive because of the enthusiasm of Hawai‘i Supreme Court Chief Justice Mark E Recktenwald, who has supported the endeavors of the committee The committee appreciates his commitment to making these efforts a priority.

The committee acknowledges the many hours that Lisa Lum, Special Assistant to the Administrative Director of the Courts, contributed to facilitating the Criminal Law Forum via Zoom The committee is also g rateful to the moderators and panelists: Christin Johnson, Robert Merce, Associate Justice Michael D. Wilson, Kirsha Durante, Judge Dexter D. Del Rosario (ret ), Judge Michael A Town (ret ), Thomas Brady, Edmund “Fred” Hyun, Megan Kau, Alan Komagome, Kelden Waltjen, Richard Sing, Judge Rowena A. Somerville, William Bento, Sara Haley, Tricia Nakamatsu, and Mark Tom A special thank you to the reporters: Jessica Domingo, Wilson Unga, and Lauren Yamaguchi.

I. Welcome

On Friday, October 7, 2022, Associate Justice Simeon R.

Acoba (ret.), co-chair of the Judicial Administration Committee (“JAC”) of the Hawai‘i State Bar Association (“HSBA”), welcomed all participants to the 2022 Criminal Law Forum Justice Acoba acknowledged Carol Muranaka, James Kawashima, Steven Chow, and Vladimir Devens for their work in leading the JAC, and recognized the HSBA’s continued support of the committee under the leadership of 2022 President Shannon Sheldon and Executive Director Patricia Mau-Shimizu. Justice Acoba thanked Chief Justice Recktenwald for his active support of the Bench-Bar Conferences and Law Forums Justice Acoba expressed that the ultimate pur pose of these prog rams is to advance the administration of justice though the Judiciary and the bar, and that the exchange of views brings g reater understanding and important changes for the benefit of the public. Recent advancements in the area of criminal law are ref lected in the Judiciary’s willingness to work closely with the Department of Public Safety (“DPS”), and its support of a compensation increase for court-appointed counsel

Chief Justice Recktenwald welcomed all participants and thanked the JAC, HSBA, and all the speakers and moderators for their time and commitment He highlighted the importance of the Law Forums in shaping some of the most significant criminal law refor ms in the State. Of note was the 2016 Criminal Law Forum’s focus on pretrial refor m

This led to a legislative resolution to create a task force that recommended major legislation during the 2019 session. Chief

by the HSBA Committee on Judicial Administration

Justice Recktenwald recognized the creation of the Criminal Justice Research Institute, which uses data analysis to achieve better outcomes in the criminal justice system He also discussed the 2019 legislature’s inclusion of prison refor m and the creation of the Hawai‘i Correctional System Oversight Commission (“HCSOC”) which he believed was one of the most significant developments in the area of criminal justice in recent years Chief Justice Recktenwald emphasized the last legislative session’s attention to women in the criminal justice system, noting one of the most significant developments was the creation of the Women’s Treatment Court Pilot Project

Vladimir Devens, co-chair of the JAC, welcomed and thanked the Forum participants for attending and specifically acknowledged the JAC Criminal Sub-committee for their work on this year ’ s Forum

HSBA President Shannon Sheldon expressed her appreciation for the JAC’s efforts and emphasized that the point of the Law Forums and Bench-Bar Conferences is to connect judges and lawyers to discuss matters of mutual concer n which are then presented in a published report

Hayley Cheng, chair of the JAC’s Criminal Sub-committee, recognized the Criminal Sub-committee members and Lisa Lum for their instrumental roles in the development and execution of the Forum

II. Prison Refor m

Christin Johnson, Oversight Coordinator for the HCSOC, first provided historical infor mation about the HCSOC and then discussed the current state of Hawai‘i’s correctional facilities For mer Vice-chair of the House Concurrent Resolution 85 Task Force on Prison Refor m, Robert Merce, presented on the new jail by addressing the proposed jail’s planning process, potential design problems, and recommendations for alter natives. He proposed rethinking the function of the jail for the 21st century At the conclusion of both presentations, Ms Johnson and Mr Merce answered questions

A. Current State of Hawai‘i’s Jails and Prisons

Ms Johnson began her presentation with backg round infor mation about the HCSOC’s history In 2015, a select g roup - Associate Justice Michael D. Wilson, Gregg Takayama (then chair of the House Committee on Corrections, Military and Veterans), Robert Merce, Bert Matsuoka (then chair of the Hawai‘i Paroling Authority (“HPA”)) and James Hirano (then warden of Maui Community Correctional Center) toured correctional facilities in Norway and met with correctional experts from Norway, Sweden, Ireland, and England. Following the trip, a legislative task force was created which subsequently released the Hawai‘i Concurrent Resolution 85 Task Force on Prison Refor m (“HCR 85 Task Force”) Report.1 The report found Hawai‘i’s correctional system was not producing acceptable, cost-effective, or sustainable outcomes and needed immediate and profound change. One of the report’s key recommendations was the creation of a Correctional Oversight

Commission. In 2019, House Bill 1552 incor porated the HCR 85 Task Force’s oversight recommendations and Act 179 established the HCSOC and appointed Commissioners Mark Patterson (chair), Ted Sakai, Martha Tor ney, Judge Ronald Ibarra (ret ), Judge Michael A Town (ret ) and Oversight Coordinator, Ms Johnson

The powers and duties of the HCSOC are:

• Investigation: Oversee the State’s correctional system, have jurisdiction over investigations of correctional facility complaints and facilitate a transition to a rehabilitative and therapeutic correctional system model

• Set population limits: Establish maximum inmate population limits and for mulate policies and procedures to prevent inmate populations from exceeding the maximum capacity

• Reentry: Work with DPS on the comprehensive offender reentry prog ram with authority to make recommendations to the HPA and the legislature regarding reentry and parole services

• Monitor: Ensure the existing comprehensive reentry system is working properly to effectuate the timely release of inmates.

Ms Johnson noted numerous national organizations with publications on the minimal standards of confinement. She highlighted the Department of Justice’s “Federal Standards for Prisons and Jails,” the American Bar Association’s “The Treatment of Prisoners” and the American Correctional Association’s accreditation process

Ms Johnson began the discussion of Hawai‘i’s facilities by presenting updated data on inmate populations. The four state jails O‘ahu Community Correctional Center (“OCCC”), Hawai‘i Community Correctional Center (“HCCC”), Maui Community Correctional Center (“MCCC”) and Kaua‘i Community Correctional Center (“KCCC”) have a combined design capacity of 1,154 A recently updated inmate count of 1,794 was 156% over capacity. Pretrial inmates represented 78% of the jail population (116% over capacity), meaning the pretrial population alone exceeds maximum capacity The four state prisons, Halawa Correctional Facility (“Halawa”), Women’s Community Correctional Center, Waiawa Correctional Facility, and Kulani Correctional Facility are less crowded with a combined design capacity of 1,338 and an inmate count of 1,239, putting the prisons at 93% capacity.2

Ms Johnson emphasized that Hawai‘i’s jails and prisons are in worse condition than the facilities on Riker’s Island in New York where she has done extensive work. She pointed to several reasons including:

• Severe overcrowding, particularly in the jails. Many pretrial inmates are held only because they cannot afford to post nominal bail

• Severe staffing shortages. When the facilities lack adequate staff, prog rams and other rehabilitative options are cut

• Facilities are very old Built in 1987, Halawa is the newest facility while the other jails were built in the early 1970s. Constant repairs and upg rades are extremely costly

• Dry-cells (cells without sinks, toilets, or water access) used as per manent housing These cells are typically used as a temporary holding space while staff coordinates the inmate’s per manent housing Because of overcrowding, inmates are being housed in dry-cells These inmates will not have direct access to toilets or water unless directly escorted by a corrections officer The staffing shortages raise serious concer ns about whether these inmates are checked on adequately and consistently

• Padlocks. This is extremely dangerous because if there is a fight, assault, suicide attempt or any type of medical emergency, the padlocks significantly delay entry to the cells

• Lack of access to out-of-cell activities. Inmates are not able to access day rooms, fresh air, recreation areas, and law libraries due to staff shortages and overcrowding

Ms Johnson next reviewed Hawai‘i’s Corrections Budget for the 2023 fiscal year and the correctional costs The 2023 budget is $274,079,501 Housing a single inmate costs approximately $247 per day, which is extremely high compared to the national standard of about $100 per inmate, per day. The state’s failing facilities are a main contributor to the high costs Correctional costs also include prog rams, healthcare and administrative services

Ms Johnson then discussed the issue of recidivism. Recidivism is defined as any new arrest or the revocation of probation or parole within three years from the start of supervision or release. The recidivism rates in Hawai‘i are very high

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While the nation-wide recidivism rate is 30% or less, Hawai‘i’s overall recidivism rate in 2016 was 53 8% Although there are various reasons for the high rates, Ms. Johnson emphasized the lengthy duration of Hawai‘i’s probation and parole ter ms compared to other states. Individuals typically involved in the criminal justice system are those with the least resources such as money and family support. Lengthy probation or parole ter ms equate to longer opportunities for failure and recidivism.

Ms Johnson then presented the HCSOC’s efforts to address the previously discussed issues. The HCSOC holds monthly public meetings which she encouraged Forum participants to attend.3 The meetings cover many topics including the conditions of confinement, updated DPS COVID-19 statistics, plans for building the new jail, mental health prog rams, restrictive housing, and proposed actions from the HCSOC Ms Johnson publishes monthly public reports on the actions taken by herself or the HCSOC, and the expenses for the preceding month. The reports, accessible on the HCSOC website, have thus far focused on the facilities’ current conditions and Ms. Johnson’s first impressions.4 She highlighted her recent report covering HCCC and her shock at the observed conditions. Those who set bail or impose sentences should be aware of the conditions of those incarcerated Ms Johnson clarified that the current reports are her initial impressions, and she has not yet had the opportunity to review logbooks, videos, conduct surveys, or have extensive discussions with staff or inmates. HCSOC also issues annual reports which include all actions it took during the preceding year, recommendations to DPS, and proposed legislation

In closing, Ms Johnson recognized the dedication of the Commissioners and the extensive experience they have with the criminal justice system She also highlighted the inclusion of the word “system” in the HCSOC’s official title This was intentional as the authors of the bill recognized corrections refor m cannot be solely focused on corrections,

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B. The New Jail

Mr Merce opened by emphasizing the importance of the new jail because of the profound impact it will have on the e n t i re t y o f H aw a i ‘ i ’ s c r i m i n a l j u s t i c e system The new jail is one of the largest public works projects ever undertaken by the State, however it has not received a lot of coverage and the community needs to understand its development.

Mr Merce discussed the State’s initial plan for the new jail The jail will be located at the current Animal Quarant i n e S t at i o n i n H a l aw a Va l l ey w i t h a design for a total of 1,308 beds that will cost around one billion dollars to build. This will likely make it the most expensive jail nation-wide As presently planned, the new jail will be developed under a public-private partnership (“P3”), meaning the private partner will design, finance, construct and own the facility. The private partner will lease the facility to the State which will be operated using State employees The State has so far spent more than ten million dollars on the planning process Last ye a r, t h e l e g i s l at u re d e n i e d t h e S t at e ’ s request for an additional fifteen million dollars

Mr Merce next discussed problems with the proposed jail. First, the community was shut out of the planning process There was only one public hearing limited to the environmental impact of the new jail and not on the facility itself Existing literature states the community must be an integ ral part of planning a n e w j a i l I n c o r p o r a t i n g c o m mu n i t y

values and public engagement is necessary to build a facility that addresses unique community needs.

Second, Mr Merce pointed to the State’s lack of system planning, and its necessity to successfully plan a jail. System planning views jails within the context of the larger criminal justice system, identifies and addresses the policies and practices that drive the jail population, strives to make the jail as small as possible, and controls the jail population by controlling the policies that drive the population An example of policy control is bail refor m, which was passed by the legislature last year but vetoed by the Gover nor 5 Bail refor m would have resulted in less people in the jail and the ability to build a smaller and less expensive facility As of October 3, 2022, OCCC had 669 pretrial detainees costing the State $159,000 per day. Statewide there were 1,042 pretrial detainees costing the State $248,000 per day. The new jail’s plan includes enough beds to continue costing taxpayers $248,000 daily The high number of incarcerated probation violators, many resulting from the HOPE probation prog ram, is another policy concer n 6 As of October 3, 2022, OCCC was housing 253 probation violators and prior to COVID-19, the number was higher at about 300-350. The community must decide whether to continue the policy of incarcerating probation violators for

short periods of time which necessitates increased bed space at a new jail Policy decisions directly impact both the cost of constructing a new jail and the cost of

daily facility maintenance

In 2018, the HCR 134 Task Force on Criminal Pretrial Practices

(“HCR 134 Task Force”) identified other policies driving the jail population and made several recommendations. These recommendations included: (1) encouraging police to increase the use of citations (rather than arrest) for non-violent class C felony offenses; (2) expanding diversion initiatives to prevent the arrest of low-risk defendants; (3) providing meaningful opportunities for lawyers to address bail at initial appearances; (4) expediting risk assessment reports; (5) expanding alter natives to pretrial detention; (6) setting bail in amounts defendants can afford; and (6) eliminating money bail for low-level, non-violent offenses Mr Merce expressed that system planning which incor porates policy decisions is the only way to build a jail based on community needs

According to Mr Merce, the third major problem with the new jail is the failure to address the problems of the detainees Specifically, Mr Merce presented the following as indicators of how inmate needs are not met: (1) 81% of the OCCC population is charged with a class C felony or lesser offense; (2) per DPS statistics, 10-12% of the OCCC populati o n a re m e n t a l l y i l l , a n d , o n ave r a g e, c yc l e t h ro u g h t h e j a i l t h re e t i m e s p e r ye a r, w i t h s o m e c yc l i n g t h ro u g h u p t o eight times per year; (3) in 2017, DPS reported 696 severe and persistently mentally ill detainees passed through OCCC,

but rather can only be achieved by a system-wide approach

and between 450-600 of those inmates were at some point on suicide watch; and (4) many incarcerated individuals are homeless, meaning they have a life expectancy of 53 years, almost 30 years less than the general population Mr Merce highlighted that this infor mation is ref lective of the profile of people who enter Hawai‘i’s jails

Mr. Merce then addressed the need to design a “problem-solving” jail The new jail must break the cycle of people who often have the same identifiable problems such as homelessness, mental illness, disabilities, substance disorders, and/or cognitive impair ment. These individuals often go to a hospital emergency room (“ER”), are stabilized and released, and are subsequently incarcerated for offenses related to their situation such as sleeping on the sidewalk or shoplifting. After confinement, they are released in the same condition as when they entered the facility with their problems unaddressed. Mr. Merce advocated redefining the function of the jail as a facility that would improve public health by addressing the physical and psychological needs of those who enter He referenced a prog ram at Queen’s Medical Center (“QMC”) aimed to assist those who over-utilize the ER, some of whom cycle through up to 30 times a year. The prog ram is designed to assist these individuals with housing and other needs and has been successful in reducing the overutilization of ERs Mr Merce shared that many people in the QMC prog ram also frequently cycle through the cellblock and jail This highlights the need to treat the underlying problems The jail should incor porate a system designed to admit, screen for issues, assess needs, implement treatment while in jail, develop a discharge plan, and provide support after discharge If implemented, such a system will reduce the number of people entering the jail, reduce recidivism rates, and improve public health in Hawai‘i.

Mr Merce pointed out additional problems with the proposed jail: (1) lack of a “mission statement” or articulated philosophy; (2) mental health units which

do not have a therapeutic design; (3) lack of outdoor space requiring inmates to stay inside at all times; (4) no contact visits (except for attor neys); (5) a punitive, “custody and control” design with few rehabilitative features; (6) no courtroom requiring all inmates to be transported for court hearings; (7) no classrooms; (8) no “ open booking” - a booking process with open seating and phone access rather than in a holding cell; (9) institutionalized dayroom designs and fur nishings; (10) lack of an environmentally sustainable design (whether the jail complies with Hawai‘i’s environmental and sustainability goals is unknown); (11) no reference to “rehabilitation” in the Jail Master Plan; (12) largely ignoring recommendations of the HCR 85 Task Force and the HCR 134 Task Force; and (13) development through a P3 rather than gover nment financing.

Mr Merce discussed the Las Colinas Detention and Rehabilitation Facility (“Las Colinas”) in Santee, Califor nia, as an example of a facility with a rehabilitative design Opened in 2014, Las Colinas was built on 45 acres, has 26 buildings, functions like a campus, has a library, clinic, hospital, classrooms, g yms, cafeterias, and significant outdoor access. Rather than the traditional high, medium, and low security levels, there are seven different g raduated levels of security with various types of housing

Features within the different security levels are designed to specifically address the inmates at each level with the goal of providing the maximum level of nor mality for the designated security level Specifically, Mr. Merce pointed out the Las Colinas minimum-security housing has open housing (no cells), desks, storage space, and windows and numerous educational, recreational, and wellness prog rams Mr Merce noted he has not personally visited Las Colinas so he was unable to comment on the facility’s functionality but offered it as an example of concepts and features which should be considered in our jail

Mr Merce shared the following recommendations for building the new jail:

1 ) Begin the planning and design process

anew by deter mining the capacity of the jail through a systems planning approach

2 ) Fund the jail through a general obligations bond not through a P3.

3 ) Plan the jail using best practices as outlined in the National Institute of Corrections (“NIC”) Jail Design Guide and NIC Jail Capacity Planning Guide

4 ) Build an efficient and sustainable jail that coincides with the State’s energ y and environmental policies and goals

5 ) Hire a correctional planning consultant or professional project manager to direct the planning process in collaboration with the community

6.) The HCSOC should lead the planning effort and convene an advisory committee (comprised of an equitable balance of people from public, private, and gover nment sectors) who will collaborate as a full partner in the planning process.

7 ) T h e H C S O C s h o u l d p re p a re a “ s c o p e o f wo rk ” fo r t h e p ro j e c t t h at ref lects a commitment to implement a rehabilitative and therapeutic approach to corrections

8.) The HCSOC should prepare a budget for completion of the predesign planning process as outlined in the NIC Jail Design Guide and submit the budget to the legislature for funding

9 ) Consult local resources including the Final Report of the HCR 85 Task Force, the Recommendations of the HCR 134 Task Force, “Getting it Right: Recommendations and Action Plan for a Better Ja i l ” by T h e C o r re c t i o n a l Re fo r m Wo rk i n g Group, and “Getting it Right: Better Ideas for a New Jail” by Robert K. Merce.

In closing, Mr Merce emphasized building a new jail is an opportunity to improve the correctional and criminal justice systems, which will improve public health and make the community safer

C. Participant questions

(1) Understanding that long probation ter ms increase recidivism, do the infacility support prog rams like drug treatment, work training and job assistance also increase recidivism?

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• Ms. Johnson and Mr. Merce noted they were not familiar with the specifics of probation but did highlight that Hawai‘i has the longest probation ter ms of any state in the nation The jails do not have prog rams that help people reenter the community.

(2) Addressed to Mr Merce: It appears the Judiciary has tried to implement some aspects of pretrial bail refor m such as expedited risk assessments (bail reports) and bail hearings at initial appearances Has that been taken into consideration when proposing this information?

• Implementation of those two recommendations by the HCR 134 Task Force is positive. However, those are the only areas where there has been any prog ress Bail is still set very high, requiring lawyers to file motions to request bail reductions It is important to look at every facet of the pretrial process and people should be released from custody within the margins of safety

(3) The risk assessment tools for bail and release studies seem to penalize defendants for being homeless and/or unemployed. Should these factors be considered when deter mining risk? What are your general thoughts?

• Mr Merce: These factors penalize defendants Unemployment is very common for homeless individuals making release less likely All the risk assessment tools must be validated and perhaps reevaluated to ensure they achieve their intended pur pose During the HCR 85 Task Force, representatives from other state gover nments believed Hawai‘i’s risk assessment tools needed to be revalidated as too many people were found to be high risk. There needs to be a focus on “housing first,” which gets people into housing before addressing anything else This has worked well in other jurisdictions The money spent on incarcerating people could be used to build the infrastructure to support them so they do not cycle back into jail

• Ms. Johnson: There are two different sub g roups within the homeless community – those who want housing

and are making best efforts to improve their situation, and those who prefer homelessness The United States has done a horrendous job in criminalizing the homeless instead of caring for them By contrast, Grand Rapids, Michigan created a homeless outreach task force utilizing social workers to respond to calls While Hawai‘i has a similar prog ram, Grand Rapids implemented additional measures such as building per manent public restrooms for the homeless population and collaborating with g yms and community centers to offer showers These measures have been very successful and eased the general public’s fear about the homeless community The prog ram humanized the homeless population instead of criminalizing them Hawai‘i can do the same (4) Is it possible to build a facility that would address the need for interim temporary housing? It seems problematic to release people, like those with mental health issues, when they have nowhere to go

• Ms. Johnson: The current facilities have mental health units but they are not rehabilitative They are designed to keep the inmates in cells. Other facilities across the nation have mental health units with case workers who collaborate with community-based case workers to assist upon the inmate’s release A mental health unit should be run by mental health providers with a focus on stabilization and re-entry support such as medication and therapy Correctional officers should not be tasked with this responsibility and lack proper training to handle mental health concer ns The new jail plans must include a mental health unit, as the facility inevitably deals with that population but does not have the resources to do it Consequently, those with mental health concer ns are re-traumatized because they are confined to cells, not receiving the help they need and may end up in a worse position than when they entered the jail

• Mr Merce: We need a mental health facility besides Hawai‘i State Hospital, which is currently filled with forensic cases For the population that is

psychotic in the community and apt to hurt themselves, there is nowhere to take them If we build a smaller jail, we will not need to use the jail for these purposes We can instead build the facilities necessary to address the mental health population as part of our community infrastructure

(6) What is the impact of the Gover nor ’ s veto on the bail refor m legislation? Did it set back overall refor m, and if so, how much? Are you aware of efforts to create dialogue with law enforcement and other interest g roups who opposed the bill?

• Mr Merce: The HCR 134 Task Force included police chiefs and prosecutors from all counties and recommended bail refor m Groups backtracked and the bill was vetoed A new bill will be introduced that could reduce the jail population and save the state money

• Ms. Johnson: Cash bail criminalizes poverty Those with money are released not because they deserve it but because they can afford it. As Oversight Coordinator, the goal is collaboration with judges, prosecutors, police, and the community to find solutions for homelessness and mental health Bail plays a large role in that This effort will start on the Big Island as HCCC is in the worst situation, and then expand to other islands

(6) On O‘ahu, the standard bail for a class C felony, including non-violent offenses, is routinely set at $11,000. If the bail was significantly lower, how much of an impact would that have on the jail’s pretrial population?

• Mr Merce: HPA’s annual report reveals the average prison ter m for the class C felony offense of Promoting a Dangerous Drug in the Third Deg ree (“PDD3”) is more than two years. HPA sets minimum prison ter ms for more PDD3 cases than all other types of drug cases combined. There was a prior bill that would have created a new “class 4” drug offense making minor, trivial amounts of drugs a misdemeanor.

• Ms Johnson: Not many people can p a y $ 1 1 , 0 0 0 o u t o f p o c k e t . P r e t r i a l

incarceration should depend on whether someone is a danger to the community and the likelihood they will appear at court. An ideal assessment should consider those factors regardless of financial status Cash bail creates inequities within the system. Two years ago, Illinois eliminated the use of cash bail They incorporated a two-year period from the law’s passage to educate the judges and the community about the new law We should look to models in other jurisdictions that are proving successful, including Washington D C and New Jersey

(7) Is there a specific person or agency to contact to report issues within the correctional facilities?

• Ms Johnson: HCSOC is the agency, and she as Oversight Coordinator is the specific person to contact.7 Requests to report issues anonymously are taken very seriously and the issues will be raised with DPS without revealing the source ’ s identity

III. Mandatory Sentencing, Hawai‘i Paroling Authority, and Mandatory Minimum Ter ms of Imprisonment

With Kirsha Durante moderating, Associate Justice Michael D Wilson, First Circuit Court Judge Dexter D. Del Rosario (ret ), First Circuit Court Judge Michael A Town (ret.) (for mer HPA board member), Thomas Brady, First Deputy Prosecuting Attor ney of the City and County of Honolulu, Edmund “Fred” Hyun, HPA chair, Megan Kau, private defense attorney, Alan Komagome, First Circuit Deputy Public Defender, and Kelden Waltjen, Prosecuting

Attor ney for the County of Hawai‘i, discussed various aspects of mandatory sentences, mandatory minimum ter ms of imprisonment, and the role of the HPA. The discussion followed a question-andanswer for mat, as ref lected here

A. What are individual panelist’s thoughts on mandatory sentences?

• Judge Del Rosario: Not in support of mandatory sentences as unifor m sentences only work if there are unifor m defendants Many mandatory sentencing laws g rew out of the “tough on crime” sentiment from the late 1980s and 1990s. There was a belief that harsher penalties would act as a deterrent or correct behavior and that has proven to be inaccurate Since then, the approach has shifted from crime and punishment to crime evaluation and treatment. Mandatory sentences do not lend themselves to this approach

• Mr. Brady: The Honolulu Prosecutor’s Office is generally not in favor of mandatory sentencing Each case and each defendant are different and should be assessed individually For example, the Honolulu Prosecutor’s office supports modifying the mandatory one-year jail ter m under the Habitual Property Offender statute to include early release to treatment. Most of these offenders have

substance problems and need treatment, not years in prison There are, however, some mandatory sentences that are beneficial to society, such as the two-day mandatory sentence for Abuse of Family

s fo r D r i v i n g o n a S u s p e n d e d L i c e n s e a f t e r O p e r at i n g a Ve h i c l e U n d e r t h e I n f l u e n c e o f a n I n t ox i c a n t .

• Mr Waltjen: The Third Circuit Prosecutor’s Office is supportive of mandatory sentencing and mandatory minimum ter ms of imprisonment to the extent that victims have a sense of security knowing an offender will be sentenced to a definite amount of prison time However, the office will often use the plea negotiation process to amend the charge to allow a defendant to be sentenced with the option to request probation or without a mandatory minimum prison ter m Mandatory sentences are also used when there are agg ravating factors such as special status of the victim or use of a firear m There are situations when mandatory sentences are necessary and appropriate to ensure public safety.

Regarding the Habitual Property Offender statute, the Third Circuit judges, the defense bar, and the prosecutors collaborated and ag reed that the statute does not expressly prohibit suspension of the mandatory one-year jail ter m. In some situations, judges in the Third Circuit have taken the mandatory jail sentence under advisement

• Judge Town:

In ag reement with Judge Del Rosario to assess each person individually including any prog ram participation and their overall conduct

Mandatory sentences tie the judge’s hands

• Ms. Kau:

The judges are in

a better position to deter mine sentences. The federal sentencing scheme is preferable as it now allows some discretion, and the offense guideline ranges are based on certain factors regarding the underlying offense and the characteristics of the defendant.

• Mr Komagome: The judge is in a better position to deter mine the sentence During the pendency of a case, judges have the opportunity to observe the defendant and sometimes have interactions with the defendant’s family. There are several instances when the prosecution, defense and the judge want to impose an alter nate sentence but are unable to because of the mandatory statutory sentence

• Mr. Hyun: Hawai‘i is one of 33 states that has indeter minate, nondiscretionary sentencing Historically, Hawai‘i was a very prog ressive state until the late 1960s The original master plans for the county correctional facilities adopted a more liberal approach to pretrial detention The community reacted negatively and wanted increased incarceration for criminal offenders. This led to indeterminate sentencing, the removal of discretion from the judges, open ter m sentencing, and extended ter m sentencing As a result, the inmate population increased and the facilities became overcrowded. The response was to build more space to accommodate the g rowing population Although there are some g o o d a s p e c t s o f i n d e t e r m i n at e s e n t e n ci n g, t h e j u d g e s s h o u l d h ave t h e re s p o ns i b i l i t y a n d t h e d i s c re t i o n t o re n d e r a p p ro p r i at e s e n t e n c e s M a n d at o r y s e n t e n c e s ( i n d e t e r m i n at e s e n t e n c e s ) a re d i f f e re n t f ro m m a n d at o r y m i n i mu m t e r m s wh i ch a re u s u a l l y re s e r ve d fo r re p e at o f f e n d e r s.

B. Do mandatory prison sentences impact the ability to resolve cases?

• Ms Kau: Yes As a for mer deputy prosecutor in the Honolulu Prosecutor’s office, cases could not be resolved and were forced to proceed to trial because the Defendant faced a mandatory prison

sentence. In one case, an offer to eliminate the mandatory minimum ter m of imprisonment was extended to a defendant who made a genuine effort to get long-ter m drug treatment The defendant continues to do well today When a defendant must decide between entering a change of plea or proceeding to trial, there is nothing to lose by going to trial if facing mandatory prison. Mandatory sentences make plea negotiations difficult and tie the hands of both the prosecution and the defense.

• Mr Komagome: Yes Mandatory sentences prevent the resolution of cases because the judge has no discretion to consider mitigating factors Because of mandatory sentences, certain cases proceed to trial and this may not be the best use of jury trials, especially post-Covid

• Mr Waltjen: The prosecutors in the Third Circuit routinely waive mandatory minimum ter ms of imprisonment while still considering victim input and desired outcome.

• Mr Brady: The Honolulu Prosecutor’s office works to identify those individuals who belong in prison, namely, dangerous and violent people, and those who repeatedly commit theft For those individuals, the deputies should advocate for prison However, that is a small percentage of all defendants Many defendants, perhaps the majority, should be placed on probation, given deferrals or placed in drug court, mental health court or HOPE probation The goal is to have credibility in the courtrooms and demonstrate that the deputies are not always advocating for prison

C. How did HPA’s role in setting mandatory minimum ter ms of imprisonment factor into for mer judges’ sentencing decisions?

• Judge Town: Hawai‘i is the only state where minimum ter ms are set by the paroling authority HPA should not set the minimum ter ms HPA’s role should be to track whether the inmate’s conduct while incarcerated has been compliant

• Judge Del Rosario: The courts are limited to the relevant statutes If the

prosecution meets all statutory elements, then the legislature has proscribed certain mandatory sentences The judge only has discretion to reduce the mandatory minimum ter ms of imprisonment For any reduction, the judge must find strong mitigating factors and issue written findings 8 Parties often try to get around the statute and it seems to get in the way rather than achieving a just result.

D. How does HPA set mandatory minimum ter ms?

• Mr Hyun: After an individual is sentenced to a prison ter m, the HPA Board must hold a minimum hearing within six months of the person ’ s admission to the correctional facility The Board generally conducts about 4,000 hearings per year and 25% of those hearings are to set minimum ter ms For board members, minimum hearings require the most preparation because of the varying documents, including presentence investigation reports (“PSI”), police reports, criminal history, clinical or forensic documents, and victim-witness statements. Victims and their families are allowed to participate in minimum hearings HPA also has the authority to g rant reductions of minimum ter ms based on conduct within the facility, accomplishments, and recommendations

A minimum ter m can be reduced by any number of years the Board deems appropriate The guidelines for setting mandatory minimum ter ms are published 9 There are three levels of punishment and the criteria considered are: nature of offense, deg ree of injury to person or property, criminal history, character and attitude, efforts made to live a pro-social life prior to prison, probation revocation, youth adult offender, and involvement of offender in the instant offense Generally, the Board cites the criteria it used when deciding a minimum ter m. For example, if someone is given a Level 3 minimum ter m based on prior criminal history, that person would have been convicted of three or more felonies cases as an adult Once the level is deter mined, the Board has the discretion to deter mine the number of years to be served For

example, for an inmate with a class C felony that has been designated as a Level 3, the Board has the discretion to set a minimum ter m between 3.1 to 5 years The minimum ter m is the minimum amount of time an incarcerated individual must serve before becoming eligible for parole If someone was previously on probation and had accrued previous detention credit, that time will be applied to any minimum ter m to be served The inability to complete recommended prog rams before the expiration of the minimum ter m may prevent an inmate’s release at the end of their minimum ter m. The Board expects completion of recommended prog rams before release on parole

E. What are the panel’s general thoughts on minimum ter ms?

• Justice Wilson: Judges should have a sense of the dire conditions of incarceration Our Federal Court has become concer ned about whether the conditions are constitutional In the past, when a defendant faced a mandatory sentence, sentencing hearings were often continued to allow for a period of treatment and perfor mance so the defendant could demonstrate appropriateness for early release HPA is aware of the over-incarceration occurring in Hawai‘i Given the questionable conditions of the correctional facilities, it is important that HPA is aware of the opportunities to release people

• Judge Town: HPA should be encouraged to set minimum ter ms as low as possible and look at time already served especially if the individual has completed a long-ter m treatment prog ram The Board used to utilize “walk-thru” paroles which was a good practice under for mer chair, Max Otani Mr Hyun confir med the current Board no longer considers walk-thru paroles. The goal should be transfor mative justice, improving people’s lives, and rehabilitative and restorative justice. The goal is not punitive justice.

• Judge Del Rosario: In some cases, attor neys advocated for walk-thru parole and requested defendants be per mitted to complete treatment prog rams

Successful completion of a treatment prog ram was a strong mitigating circumstance and mandatory minimum ter ms were often reduced to what the defendant had already served, in some cases as low as one day A factor in deter mining the appropriateness of a sentence is readiness to change A person may be ready to change due to pretrial incarceration, having a period of contemplation, and willingness to enter a treatment prog ram Mandatory sentences can sometimes work against the rehabilitative process The person is ready to change, but then is left in prison for a year before starting the facility treatment prog ram. The court has the ability to address this and has to be creative with the appropriate defendants.

F. What is the impact, if any, of a court-ordered minimum reduction on HPA’s setting of a minimum ter m?

• Mr. Komagome: Ultimately, the Board can match the reduced minimum or go above it A comparison of the HPA minimum ter m guidelines and the sentencing factors under HRS § 706-621 reveal most factors are almost identical 10 The judges previously considered many of the same factors as the Board The limited time for minimum hearings can make it challenging for defense attor neys to effectively advocate and explain a client’s lifetime of experiences When focusing only on the minimum ter m guidelines, the Board becomes married to the facts of the underlying case or the client’s lack of success on probation Often much has happened during the pendency of the case and is unfortunately not considered by the Board In one instance, the judge monitored a client’s completion of a long-ter m residential treatment prog ram, received prog ress updates and saw the client’s ups and downs. Presenting that same infor mation comprehensively to the Board was difficult

• Justice Wilson: It is unfortunate that the individual circumstances of each defendant are not considered when setting the mandatory minimum. A concer n for the appellate courts, especially

when addressing extended or consecutive sentences, is whether there was an adequate opportunity to consider any change that has taken place during either the life of the defendant or in the correctional environment Hopefully in the future there will be a full and complete opportunity for due process This may be done by examining ways we can refor m the correctional justice system, perhaps by providing HPA with more time and additional resources

• Mr. Hyun: The Board generally does not consider the court’s reduction of a defendant’s mandatory minimum The Board takes each case on its own merits and looks at the infor mation presented at the minimum hearing The courts do a good job in minimizing the number of individuals admitted into prison There are about 18,000 people on probation compared to the 484 people admitted into prison last year Many of those who end up in prison have exhausted the available treatment prog rams and their opportunities on probation At minimum hearings, defense attor neys give clients excellent representation and make compelling arguments to the Board However, sometimes what the client wants is not in their best interest or in the best interest of the community Those considerations must be balanced by the Board members at each hearing. The Board also considers representations and letters from the prosecutors and considers the victims There are cases when an individual is sentenced to an open fiveyear prison ter m and has already accrued two years of incarceration credit while on probation. In that situation, there is often inadequate time for the individual to complete prog ramming in the facility There is also a process to later request a minimum reduction and hopefully this fosters good institutional behavior

G. Why does HPA not consider court-ordered reductions of minimum

ter ms?

• Mr Hyun: There are very few occasions when the Board will entertain a court-ordered minimum reduction. For example, if someone has previously

completed a prog ram such as sex-offender therapy or a drug treatment prog ram, that will be given consideration It is case by case, but generally the Board will set a minimum ter m without consideration of a minimum ter m reduction by the court

• Judge Town: It is concer ning that requests to reduce the HPA set minimum ter ms are handled through a paper-review rather than an in-person hearing The preference would be to have a full and complete hearing to inquire about prog ram completion, misconduct history, and evaluate whether that person is a threat to the community People do change Due process is not being honored by this procedure and there must be consideration of the har m caused while in prison

• Mr Hyun: The paper review is based on the facility’s documentation of accomplishments and recommendations by the facility unit team, the branch, and the division head of public safety. The Board has reconsidered and reduced a considerable number of minimum ter ms In one instance, a minimum ter m on a life-sentence was reduced by ten years. Generally, the reductions will be between six months and 1-2 years Inmates can apply for a reduction every year, if not every other year, if they can show considerable and improved prog ress and recommendations by correctional staff

• Justice Wilson: There appears to be an opportunity in the correctional justice system to improve rather than traumatize an incarcerated individual. There has been concer n raised that there is not an adequate chance to address these opportunities. DPS has acknowledged a problem with over-incarceration. Because of the need to build a new jail, there is a current restructuring in the criminal justice system with a need to decide how to distribute between 500 million to one billion dollars Perhaps HPA needs more commissioners or a bigger budget. This is a n o p p o r t u n i t y t o i m p rove t h e s y s t e m ove r a l l We h ave t h e t a l e n t t o b e a bl e t o i m p rove i t , bu t n o t n e c e s s a r i l y t h e re s o u rc e s.

H. Given that HPA has acknowledged it rarely considers courtordered reductions of minimum ter ms, how will that impact the plea negotiation process going forward?

• Mr. Brady: The role of HPA is not detrimental to plea negotiations Both the prosecution and the defense may review HPA’s annual reports to predict the possible minimum ter m It is preferred that HPA continue to set minimum ter ms as it provides consistency that may be lost if deter mined by individual judges

• Mr Waltjen: Minimal impact since the Third Circuit uses other practices in the plea negotiation process For example, the prosecution will ag ree to a cap on the recommended level or minimum ter m or will ag ree to forgo appearing before the Board (without precluding the victims from appearing). Regarding the discussion about the new jail and the problems at HCCC, HCCC has been overcrowded for the last forty years and has ongoing issues including lack of prog rams and services within the facility which contribute to recidivism. Spikes in violent crimes are also related to staffing shortages within the police force, the prosecutor’s office and in the judiciary’s probation department In an effort to accelerate the resolution of cases, the Third Circuit previously utilized waivers of PSIs and views the preparation of abbreviated PSIs, especially for lower-level felony offenses, as one other available alter native.

• Mr Hyun: There is a statutory clause that allows for the waiver of a PSI When the Third Circuit exercised this clause, it severely hurt the intake and diagnostic process of sentenced felons entering prison. Without the infor mation in the PSI, the Board and prison have no infor mation on how to recommend prog rams for the newly admitted inmates. There is a risk that the inmate may come out worse at the end of their prison ter m There can be an ongoing dialogue about ways to expedite the process, but the importance of the PSI for HPA and DPS pur poses cannot be understated.

• Justice Wilson: It is important to

continue vocalizing the needs of the Third Circuit – such as Mr Waltjen’s summary of the breakdown of the system resulting in housing inmates in storage containers – so the incarcerated can be adequately housed, the correctional staff taken care of, and the correctional work environment improved

I. What are other arguments, if any, for why HPA should continue to set the minimum ter ms of imprisonment?

• Judge Del Rosario: Existing law only allows the court the options of probation or prison. Judges try to avoid incarceration and first provide opportunities for rehabilitation There are cases where the resources of the courts and the probation department have been exhausted HPA considers factors that the court does not because a person is at a different stage when appearing before the Board

• Judge Town: Unless HPA had a substantially larger parole commission and received additional funding, the Board should only focus on parole and not on setting minimum ter ms until it can do so fairly and adequately The paper-review process for deter mining minimum ter m reductions is particularly concer ning

• Mr. Hyun: HPA setting the minimum ter ms helps the correctional facilities It establishes the baseline populations for the prisons It also provides the Board with the foundation to reduce minimum ter ms On the other hand, if the courts set the minimum ter ms it would allow the Board to focus only on parole considerations

• Ms Kau: Both the HPA and the judges are overburdened. The two entities must maintain their roles within the justice system because unless the whole system gets over-hauled, the best approach is to improve the existing roles The Board does a good job and strives to deter mine the minimum ter ms based on the facts and circumstances of each case

• Mr Komagome: The trial judge is better positioned to deter mine the minimum ter m and the parole board is in the

best position to decide when a defendant should be released

• Mr Waltjen: There seems to be a lot of potential advantages to having the j u d g e s s e t m i n i mu m t e r m s a s o p p o s e d to HPA

• Justice Wilson: The reality is the system is not working We do not give proper attention to individual deter minations at sentencing. As a for mer Circuit Court judge on the criminal calendar, the opportunity to deter mine minimum ter ms would have been embraced. The judges are paid to make the right decisions regarding the length of time citizens should spend in jail during an open proceeding accessible to the public Refor m is imperative to achieve fair sentencing and reduce over-incarceration. HPA can focus on parole matters and assess the rehabilitation efforts and conduct of individuals while incarcerated.

IV. Knock-and-Announce Law in Hawai‘i

Richard Sing presented on the knock-and-announce law in Hawai‘i by first highlighting concer ns and national statistics related to the execution of search and arrest warrants Mr Sing then reviewed Hawai‘i’s statutory authority and relevant case law At the conclusion of the presentation, there was an opportunity for Forum participants to pose questions to Mr Sing

A. National Concer ns and Statistics

There is nationwide controversy over methods used during the execution of warrants. There are legitimate issues related to the potential loss of evidence due to a delayed search On the other hand, there are concer ns for the safety of law enforcement officers, civilians, and suspects As of 2020, most states have some for m of no-knock warrants or quick knock warrants These types of warrants are executed by Special Services Divisions (SSD) or Special Weapons and Tactics (SWAT) teams One study examined 818 SWAT deployments by 20 law enforcement agencies across 20 states, from 2010 through 2013 The

study found that 62% of the deployments were drug searches and 60% of them were forcible entries Another study found that SWAT teams were deployed 91% of the time for these types of warrants, and 68% of those deployments involved forcible entry.11 A New York Times investigation found that between 2010-2016, there were 81 civilian and 13 law enforcement deaths as a consequence of forcible entry warrants 12 Law enforcement officers represent about 10% of those killed as a result of forcible entry warrants That statistic increases to 20% of the fatalities for no-knock warrants These types of warrants are not only dangerous for civilians and suspects, but there is also an increased risk of danger for law enforcement.

As of 2020, although most states per mit the use of some for m of no-knock warrants, Hawai‘i does not. As of 2021, 22 states, including Hawai‘i, had introduced bills or city ordinances that proposed either a ban or restriction on no-knock warrants 13 Hawai‘i’s bill would have implemented a complete ban on no-knock warrants. Although the bill gained traction, it was ultimately quashed while in conference and will be reconsidered during the next legislative session

B. HRS Sections 803-11 and 803-37

Federal law enforcement is guided by a 2003 United States Supreme Court decision which held that forced entry after waiting 15-20 seconds from the knock and announcement of a search warrant was reasonable.14 Hawai‘i has two existing statutes that control warrant executions First, HRS § 803-11 is implicated when there is an arrest warrant and law enforcement must enter a premise to serve the warrant The statute allows forced entry but generally requires that law enforcement first demand entrance in a loud voice and explain their pur pose (either that they have warrant for arrest, or that they are there to execute a lawful arrest without a warrant) 15

HRS § 803-37 applies to the execution of search warrants and is essentially

identical to the requirements set forth in § 803-11 16 Significantly, forced entry is authorized if the premises are not immediately opened after law enforcement announced their pur pose and demanded entrance

Article I, section 7 of the Hawai‘i State Constitution protects against unreasonable search and seizures and includes privacy protections. The Hawai‘i Supreme Court has used this Article to evaluate the reasonableness of warrant executions and the time lapse between a knock-and-announce and forcible entry 17

C. Survey of Hawai‘i cases

Analysis of individual cases starts with first deter mining whether the premises was open, and secondly, if force was used to gain entry If not, the statutes are not triggered and law enforcement is not required to knock-and-announce. Whether a premise is considered open or closed is subject to many different factual considerations as illustrated by State v. Keanaaina, 151 Hawai‘i 19, 508 P 3d 814 (2022) Law enforcement obtained a search warrant for a particular homeless encampment The encampment had tar ped shelters with open sides used as residences allowing people to easily walk in and out Upon arrival police saw people within the shelter, announced their presence and waited outside for two minutes before entering The police did not demand entrance The Court held that the premises were open and demand for entrance was not required as HRS § 80337 was not triggered

Keanaaina also addressed whether force was used to gain entry to the premise when an officer moved aside some fabric on the shelter and moved a couch while entering. The Court held that these actions were incidental to the entry and were not necessary to gain entry to the shelter. The Court also opined on other factors that contributed to the validity of law enforcement’s actions Specifically, the Court found the loud knock-and-announce and time lapse until entry reduced the potential of violence and risk of property damage. The Court also noted that the officers acted with as

much respect possible to the privacy interests of the residents given the open nature of the tar ped premises

In State v. Harada, 98 Hawai‘i 18, 41 P 2d 174 (2002), two undercover female officers knocked on Harada’s residence door during the execution of a search warrant Harada opened the door, saw additional officers, and attempted to close the door. Officers then pushed the door open and gained entry The Court held it legally per missible to use the ruse of undercover officers to get Harada to the door However, the officers were required to comply with HRS § 803-37 as force was used when they pushed the door open Although the officers announced their presence and pur pose while pushing the door open, they did not specifically demand entry Harada is instructive as it required strict compliance with the procedures set forth in HRS § 803-37

State v Maldonado, 108 Hawai‘i 436, 121 P.3d 901 (2005) addressed whether the statutory requirements were met during the service of an arrest warrant At Maldonado’s door, the police knocked, announced their presence, demanded entry, and simultaneously entered the residence by opening a screen door. The police failed to announce their pur pose and therefore violated the requirements of HRS § 803-11.18 The Court rejected the argument that substantial compliance with the statute is adequate and held strict compliance is required

In State v. Monay, 85 Hawai‘i 282, 943 P 2d 908 (1997), during execution of a search warrant, police knocked on Monay’s door, announced their presence and pur pose and almost immediately opened the door Officers failed to specifically demand entry and were thus in violation of HRS § 803-37

Currently, the leading issue for execution of warrants is the time lapse between the knock-and-announce and entry This is where the considerations for safety and destruction of property apply In Hawai‘i, the case law addressing the issue of the time lapse is somewhat unclear. State v. Garcia, 77 Hawai‘i (Continued on pa ge 22)

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H S B A H A P P E N I N G S

HSBA Board Action

The HSBA Board took the following actions at its meeting in March:

• Voted to approve a proposed diversification plan of cash assets among 4 other local banks, and authorize the President, Treasurer, and HSBA staff to (1) review such plan after 6 months, (2) take necessary action for the continued diversification of cash assets, and (3) report its actions to the Board;

• A pproved the recommendation of the HSBA Nominating Committee to recommend to the Court the reappointment of Susan Ar nett and Jane Kwan (whose ter ms expired on March 13, 2023) and Mei-Fei Kuo and Judith Pavey (whose current ter ms will expire A pril 26, 2034) for three-year ter ms to the Commission on Professionalism;

• A pproved the recommendation of the HSBA Nominating Committee to recommend to the Court that Jeen Kwak (whose ter m expired on March 29, 2023) be reappointed and that Darcia Forester, Lars Isaacson, and Eric Yau be newly appointed to the Special Committee on Judicial Perfor mance for three-year ter ms;

• A pproved the recommendation of the HSBA Nominating Committee to appoint Michelle Go to fill a vacancy for the remainder of a ter m expiring on December 31, 2023) and to reappoint Carol Kitaoka (whose ter m expired on December 31, 2022) for a three-year ter m on the Hawai‘i State Bar Foundation Board; and

• Voted to approve of EOS Accountants LLP for the 2022 HSBA independent audit

YLD 2023 Elections

Get involved and run for a position on the HSBA YLD Board. Join a g reat

g roup of your colleagues who plan and coordinate diverse community-oriented projects and activities and engage in bar gover nance. The following officer and director positions will be available in 2024: Vice President/President Elect, Treasurer, and Secretary, as well as Director positions for Oahu (3), Maui (1), and West Hawaii (1) If interested, please submit a letter of interest, headshot, and short bio (no more than 100 words) to the HSBA YLD Nominating Committee to yldhawaii@gmail com by June 30, 2023, at 5:00 p m HST

SCD 2023 Elections

The following Senior Counsel Division officer and Director positions will be available from January 2023: Vice President, Treasurer, and Secretary, as well as Director positions for Oahu (3), Kauai, Maui, and Big Island June 30 is the deadline to submit a resume and cover letter to scd@hsba.org.

HSBA Awards: Nominate a Colleague

HSBA Awards will be presented at the Annual Meeting in October 2023 in conjunction with the virtual Bar Convention The HSBA Awards Committee seeks nominations of individuals or entities deserving of recognition for the following:

Golden Gavel Award recognizes an attor ney or non-attor ney for outstanding service to the state or federal judiciary in Hawaii.

C. Frederick Schutte Award recognizes an attor ney for outstanding service to the legal community and the profession.

‘Ikena Award recognizes an attor ney or non-attor ney for exceptional service in legal education to the public or the profession

Ki’e Ki’e Award recognizes an attorney for outstanding provision of profes-

sional legal services at no charge to the recipient

Greeley Key Award for Innovation recognizes an attor ney or non-attor ney for promoting new and creative uses of, or approaches to, the law.

Champion for Social Justice Award recognizes an attor ney for courageous legal work in the face of public controversy.

Malama Hawaii Award recognizes an attor ney for effective non-legal community service activities that make a difference and improve the quality of life in Hawaii.

For a full description of these awards, please go to www hsba org > About Us > Awards. Please submit nominations to the Awards Committee, c/o HSBA, by mail or email (nominations@hsba.org) no later than July 21, 2023

Apply for HSBF Board and Access to Justice Commission

The Hawaii State Bar Foundation (HSBF) and the Hawaii Access to Justice Commission (ATJC) will have positions expiring in December. General qualifications for these positions include an affir mative interest in the organization; willingness and ability to devote time to perfor m necessary duties; and being conscientious, studious, thorough and diligent in lear ning methods and problems of the organization

HSBF Duties: Members of the HSBF Board set short-ter m and long-ter m strategic goals and directions for the HSBF; fundraise and develop sufficient resources to carry out goals and directions; and provide oversight of the HSBF’s finances, g rants, prog rams, and operations Other qualifications include serving as an emissary in the legal community and beyond for the HSBF and its mission The HSBF Board has five

openings, each for a three-year ter m beginning January 1, 2024

ATJC Duties: The Commission’s primary pur pose is to substantially increase access to justice in civil legal matters for low- and moderate-income residents of Hawai`i Other qualifications include being an active HSBA member who has demonstrated a commitment to and familiarity with access to justice issues in Hawai’i The Commission has two HSBA representative openings, each for a three-year ter m beginning January 1, 2024. Neighbor island attor neys are encouraged to apply Attor neys from law fir ms of 10 or more are encouraged to a p p l y. Fo r m o r e d e t a i l s o n t h e C o mm i s s i o n ’ s w o r k , s e e h t t p s : / / w w w h a w a i i j u s t i c e o r g / h a w a i i - a c c e s s - t o - j u s t i c e - c o m m i s s i o n .

Anyone interested in serving in these capacities should submit the following to the HSBA Nominating Committee (nominations@hsba org) by July 31: a resume, reason for wanting to serve, and area of concentration Please note that these positions are uncompensated, and that applicants need to disclose all public disciplinary sanctions If there have been none, then state that such is the case A ppointments will be made at the HSBA Board meeting in November 2023.

Member Benefits Spotlight

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Hawaii Business Ma gazine

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461, 887 P 2d 671 (1995) held that a lapse of ten seconds before entry is probably insufficient Monay held that a two second lapse before entry was insufficient. The amount of time must be reasonable to allow the occupant to voluntarily comply with the demand for entrance

Last year ’ s legislative bill attempted to address this issue by specifically prohibiting no-knock warrants, imposing a thirty-second wait time before entry, requiring officers to be unifor med with activated body-wor n cameras, and prohibiting officers from obscuring their identity or office 19

D. Participant questions

(1) There was mention that eliminating the element of surprise is a policy behind Hawai‘i’s knock-and-announce statutes. Given that, is there a dif ference between no-knock warrants and use of a ruse to obtain entry?

According to the case law, use of a ruse is legally per missible The policy behind eliminating the element of sur prise is safety-related which has been problematic nation-wide There is not necessarily a dichotomy between a no-knock warrant and a knock-and-announce warrant. The real issue is how much time should lapse before forcible entry is made The policy considerations center around how much risk the community is willing to tolerate to secure evidence without comprising safety.

(2) What are your recommendations on these issues?

The safety of the civilians and law enforcement is most important It is also important to combat offenses like drug distribution Executing warrants with less sur prise may have an impact on the amount of drugs seized and the ability of people to escape A fir m rule with an articulated time period is preferable as the reasonableness standard can be problematic However, a concer n arises with the fir m time rule when executing a warrant

at a studio apartment versus a large home

(3) Under federal law, suppression i s n o t t h e r e m e d y f o r f a i l u r e t o k n o c k - a n d a n n o u n c e. I s suppression the remedy under Hawai‘i law?

Ye s . T h e r e m e d y f o r f a i l u r e t o comply with the statutory requirements is suppression of the seized evidence

V. 2022 Legislative Review

Members of the legislative teams from the City and County of Honolulu’s Department of the Prosecuting Attor ney (“DPA”), Mark Tom and Tricia Nakamatsu, and the Office of the Public Defender (“OPD”), William Bento and Sara Haley, discussed various legislative items from the 2022 session. First Circuit Court Judge Rowena A Somerville introduced each legislative item and moderated the discussion. The panelists were asked to share the positions and concer ns of their respective offices on each bill as ref lected here. Responses representing the respective offices have been combined and summarized to the extent possible. At the conclusion of the panel discussion, Forum participants were invited to ask questions of the panelists

A. Negligent Homicide (SB2163)

This bill increases Negligent Homicide in the First Deg ree from a class B felony to a class A felony if the following conditions are met: If at the time of the offense a person (1) has been convicted one or more times of Operating a Vehicle Under the Inf luence of an Intoxicant (“OVUII”) within the past 15 years, (2) is in violation of HRS § 291E-62 (Operating a Vehicle After License and Privilege Have Been Suspended or Revoked for OVUII), or (3) if the person is a highly intoxicated driver under HRS § 291E1 20 The court can impose a lesser sentence for the class A felony if there is a finding of strong mitigating circumstances with a written opinion stating the court’s reasons for imposing the lesser sentence

DPA: This bill was the result of a

policy decision of the legislature. The original version included a 20-year lookback period but was subsequently amended to 15 years.

OPD: The office had advocated for the possibility of a probation sentence with a finding of strong mitigating circumstances Defense practitioners should be mindful that juvenile adjudications and convictions under HRS § 291E-64 (Operating a Vehicle After Consuming a Measurable Amount of Alcohol; Persons Under the Age of Twenty-One) are counted as prior convictions It may be necessary to request dismissals in the interest of justice for juvenile cases or apply for expungement of convictions under HRS § 291E-64 to avoid accumulating prior convictions.

B. Catalytic Converters (SB2279)

This bill establishes several provisions to regulate the purchase of catalytic converters Violation of the provisions or theft of catalytic converter is a class C felony

DPA: Every vehicle has a catalytic converter which can be stolen in a matter of minutes and easily sold Previously, the theft of a catalytic converter could not be charged as a felony offense because of the relatively low resale value The bill follows the approach that was taken several years ago when theft of copper was a problem According to the Honolulu Police Department (“HPD”), theft of copper immediately decreased once that law was passed so hopefully this bill will likewise significantly decrease catalytic converter theft

OPD: The office did not take a position on this bill

C. Unifor m Controlled Substances Act (SB3140)

The bill requires those who hold a controlled substances registration to immediately verbally report the theft, embezzlement, fraud, or diversion of a controlled substance. The submission of a subsequent written report is required Failure to knowingly report as required or prevent another from reporting is a misdemeanor

DPA: The office did not comment on this bill

OPD: Likewise, the OPD did not comment on this bill. Private practitioners are more likely to represent those who are registered to possess controlled substances such as phar macies, doctors, dentists, or veterinarians

D. Operating a Vehicle Under the Influence of an Intoxicant (SB3165)

The bill includes the following amendments: (1) increases the license revocation period for first offenses from one year to no less than one year and no more than 18 months, (2) a person may apply for early ter mination of the license revocation under certain circumstances, (3) requires a person to have a gover nment-issued identification in their immediate possession if operating a vehicle with an ignition interlock, (4) extends the lookback period under HRS § 291E-62 from 5 years to 10 years, (5) a person convicted of OVUII and an offense under HRS § 291E-62 arising from the same incident shall be sentenced to jail in both offenses and the jail ter ms shall be served consecutively, (6) expands the offense of tampering with an ignition interlock to include obstruction of the camera lens and failure to provide a picture of the driver, and (7) extends the lookback period for tampering with an ignition interlock from five years to ten years

DPA: This bill was the result of the coordinated effort by the Department of Transportation and Highway Safety (“DOT”), all county prosecutor offices and all of the county police departments. It was strongly supported by the legislature because OVUIIs are a significant problem in Hawai‘i. Both the DOT and Mothers Against Drunk Driving believe ignition interlocks are a key component in decreasing OVUIIs and helping offenders rehabilitate To encourage more OVUII offenders to install an ignition interlock, the bill requires a longer license revocation period and also allows those with an ignition interlock to apply for early ter mination of the license revocation if the device has been installed for at

least 9 months of which the last 3 months were violation free The amendment that mandates consecutive sentencing for those convicted of both OVUII and driving with an OVUII-related license suspension or revocation recognizes that there should be an enhanced penalty for those who should not have been driving in the first place HRS § 291E-62 was amended to change the mandatory sentence for a third offense of one-year jail to a range of 6 months to one-year jail.

OPD: The office strongly opposed this bill HRS § 291E-62 disproportionately affects those with less financial means and this bill helps those who can afford to get an ignition interlock Many of the license revocations imposed by the Administrative Driver’s License Revocation Office (“ADLRO”) are for one year If the court were to impose an 18-month revocation, it would be g reater than what is typically imposed by the ADLRO A positive change was the reduction of the mandatory one-year jail sentence to a possible 6-month sentence for third offenses under HRS § 291E-62. However, that is still an extremely high sentence for a driving offense The extended lookback period under HRS § 291E-62 will increase the number of convictions These offenses are poverty crimes as those who can afford to install an ignition interlock will not be convicted of these offenses

DPA: There is an indigency fund for those who cannot afford an ignition interlock device Although not completely free, with appropriate documentation such as proof of welfare benefits or other services from the Department of Human Services, the installation and monthly fee can be reduced by 50%.

OPD: Although there is an ignition interlock indigency fund, it has become increasingly difficult to qualify for it. For example, a person must own a vehicle and the vehicle cannot be shared with anyone else including other family members For public defender clients, there is only a small percentage that will be able to obtain an ignition interlock device.

E. Unauthorized Control of Propelled Vehicle (HB1469)

This bill creates an affir mative defense for anyone charged with Unauthorized Control of Propelled Vehicle (“UCPV”), where the defendant purchased the vehicle and reasonably believed themselves to be the actual owner of the vehicle

OPD: The creation of an affir mative defense results in more litigation because now the defendant has the burden of establishing a reasonable belief as to their ownership of a vehicle after purchase The hazard of that is seen in situations where an individual is duped into buying a vehicle and then criminally charged because they were operating the vehicle There is also concer n for those who purchased a vehicle but did not do it in a smart way, i e , failed to get a copy of the title or believed the seller’s promise that the title would be provided at a later time For practitioners, the defense will now be responsible for gathering evidence such as documentation or witnesses to effectively utilize this affir mative defense. The use of the ter m “ reasonably believed” is worrisome as it is not defined in the law.

DPA: Back in 2020, Hawai‘i had one of the highest auto theft rates in the nation per 100,00 people. On O‘ahu alone there were 3,000 motor vehicle thefts, and of those about 500-600 resulted in arrests. This is a huge problem for the State and respective counties There is shared concer n over the ter m “reasonably believed” which was not the language in the original bill Support for the creation of the affir mative defense results from instances of defendant testifying mid-trial that the car was purchased from a particular person At that point in the trial, the State is unable to investigate or introduce evidence to challenge the defendant’s testimony The jury is left to think that the police or prosecutor failed to do a thorough investigation as to d e f e n d a n t ’ s p o s s i b l e p u r c h a s e o f the vehicle

F. Theft in the First Deg ree (HB1486)

Most vehicle thefts are charged under the UCPV or Theft in the Second Deg ree statutes which are class C felonies This bill amends Theft in the First Deg ree, a class B felony, to include theft of motor vehicle or motorcycle

DPA: This bill stemmed from the concer n over the high rates of motor vehicle theft in Hawai‘i As it is a policy issue, the prosecutor’s office did not submit testimony. However, the general premise behind the bill is to address the loss of the vehicle to the owner regardless of the monetary value of the vehicle. Those who commit a theft of a motor vehicle should be charged consistently, regardless of the actual value of the vehicle or regardless of whether the prosecution can prove the defendant knew the value of the vehicle at the time it was stolen.

OPD: Classifying the theft of a vehicle as a class B felony is purely punitive

It is not ref lective of the existing levels of theft that are aligned with monetary value It is also problematic that the definition of a vehicle does not state that the vehicle must be operable Under this bill, theft of an inoperable vehicle with nominal monetary value would still result in Theft in the First Deg ree Whether the police or prosecutors will use their discretion in those types of situations is unknown This bill will add to the prison population and will lead to longer ter ms of imprisonment

G. Credit for Time of Detention

Prior to Sentence (HB2074)

In response to State v. Abihai, 146 Hawai‘i 398, 463 P 3d 1055 (2020), this bill clarifies that defendants who are convicted of crimes while serving a prison ter m cannot receive credit for any presentence time served for the new offense if it overlaps with time being served for the old offense The bill is not retroactive

OPD: Constitutional issues are triggered when evaluating ear ned detention credit The pur pose of the bill is to deny pretrial detention credit to those already serving prison time Part of the proposed

reasoning was that it would act as a deterrent against committing crimes while in prison, especially violent crimes against other inmates and the correctional staff The actual bulk of the cases are comprised of people charged with Escape after absconding from work furlough The language of the bill does not achieve the legislature’s intended pur pose because it uses the ter m “ any periods of detention ” The hope was that people would not get credit for their presentence detention time, but in reality, it has become a de facto consecutive sentencing statute as it does not specify that it only applies to presentence detention credit. DPS could choose to deny periods of ear ned credit This bill takes away discretion from the courts to balance out and consider mitigating circumstances Additionally, this bill penalizes those who proceed to trial as they will have more presentence credit than a person who resolves their case by pleading

DPA: The Department of the Attorney General took the lead on this bill and wanted to give the legislature the opportunity to revisit the original enactment of the statute that was addressed in Abihai The language of the bill makes it clear that it only applies to presentence detention

H. Firear ms (HB2075)

Yukutake v. Connors, 554 F Supp 3d 1074 (D Haw 2021) invalidated Hawai‘i’s ten-day expiration period for a per mit to acquire a pistol or revolver (holding stayed by the court) and invalidated the requirement that all firear ms be physically inspected at the time of registration The State is appealing the decision, the legislature supports the appeal and introduced this bill in response. The bill enacts a three-year physical inspection requirement at the time of registration for firear ms which were: (1) manufactured without serial numbers, (2) transported into the State from another jurisdiction, and (3) obtained in private sales and transfers The bill sunsets on June 30, 2025

DPA: The prosecutor’s office took no position on this bill

OPD: The bill allows for physical inspection but for a much smaller category of firear ms A significant change is that Ne w York State Rifle & Pistol Assn., Inc. v. Br uen 597 U S , 142 S Ct 2111 (2022) was decided this year and changed the test that was used in the Yukutake decision. Cases are continuing to be decided which will reveal how the federal district courts are handling the Br uen decision.

I. Public Safety (HB2171)

This bill in part establishes: (1) a new Department of Law Enforcement to consolidate and administer enforcement and investigative functions of the State, (2) DPS (to be renamed Department of Corrections and Rehabilitation) as an independent department to administer the corrections, rehabilitation and reentry of the inmate populations, and (3) a training center, and appropriates funds for the newly created department

OPD: No position was taken on this bill.

DPA: The office generally supported this bill

J. Criminal Pretrial Refor m (HB1567)

The bill eliminates the use of monetary bail and requires defendants to be released on their own recognizance for certain non-violent offenses (subject to exclusions) The bill was vetoed on July 12, 2022

OPD: This bill would significantly address the problem of overcrowding in the correctional facilities There were enough considerations to adequately address community safety concer ns.

DPA: (No response sought as the bill was vetoed)

K. Participant Questions

(1) Is the application for early ter mination of a license revocation under the new OVUII law submitted to the ADLRO, the court, or the entity who originally imposed the revocation?

DPA: The ADLRO statutes were not amended as a part of this bill The

NOTICE TO ATTORNEYS AND LAW FIRMS INTERESTED IN PROVIDING LEGAL SERVICES TO THE MAUI COUNTY COUNCIL SOLICITATION NO.: 23-003OCS

In accordance with Chapter 103D, Hawaii Revised Statutes, the Office of Council Services for the County of Maui invites attorneys and law firms licensed to practice law in the State of Hawaii to submit a letter of interest and statement of qualifications to provide legal services to the Maui County Council A statement must be submitted in accordance with this Notice even if a similar statement has been submitted to the Department of the Corporation Counsel or Office of the County Auditor Legal services are authorized by resolution and provided in accordance with contracts executed through the fiscal year ending June 30, 2024.

The Maui County Council anticipates that it may retain attorneys or law firms qualified to practice in the following areas of law through June 30, 2024:

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3. A summary of the education, experience, and qualifications of any attorney who would be performing substantial legal work or who would be communicating with the client

4. A summary of the cases or other legal work done relevant to this Notice and the names and contact information of up to five clients who may be contacted, including at least two for whom services were rendered during the preceding year and at least one governmental client

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6 An overview of anticipated billing policies

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A letter of interest and statement of qualifications in response to this Notice should be addressed to Director of Council Services, and emailed to county council@mauicounty us at least ten calendar days before the beginning of a month in order to be eligible for consideration during that month and through June 30, 2024. The subject line in emails should read: "ln Response to Providing Legal Services to the Maui County Council"; attachments should be in searchable PDF format.

Procurement Notice for Solicitation will be posted on the State of Hawaii HANDS website on June 1, 2023.

application process would only apply to revocations imposed by the court

(2) With the development of the Department of Corrections and Rehabilitation, it seems like a g reat opportunity to provide input on topics like the training curriculum for law enforcement of ficers, or the manner in which deter min a t i o n s a re m a d e f o r p re t r i a l inmate’s treatment needs. Are either the prosecutor’s of fice or the public defender’s of fice participating in this restructuring?

OPD & DPA: Neither office is currently participating but both expressed they will follow up with their administration and would appreciate the opportunity to be involved

VI. Closing Remarks Ms. Cheng thanked the participants, speaker s and panelists and expressed that the purpose of the Forum is to not only lear n new infor mation, but to facilitate dialogue amongst the Judiciar y and the bar about significant issues within the criminal justice system

2022 CRIMINAL LAW FORUM PARTICIPANTS

T he HSBA Committee on Judicial Administration in 2022 comprised of the following co-chair s and member s: Hawai‘i Supreme Court Associate Justice Simeon R. Acoba, Jr. (ret.), CoChair, Vladimir Devens, Co-Chair, Judge Ronald Ibar ra (ret ), Judge Blaine

J. Kobayashi, Judge Brian Costa, Judge

Rowena A Somerville, Chief Judge

Randal G Valenciano, Judge Wendy

DeWeese, Judge Summer M. KupauOdo, Judge M K anani Laubach, Judge

Clarissa Y Malinao, Hayley Cheng, Dennis Chong Kee, Steven J T Chow, K ahikino Noa Dettweiler, Kir sha Durante, Tred Eyerly, Daylin-Rose

Heather, Ed ward C Kemper, Erin

Kobayashi, Simeona Mariano, Dyan

Mitsuyama, Carol K Muranaka,

Kyleigh Nakasone, Richard Sing, Audrey Stanley, Wilson Ung a, and Dawn

West

T he Criminal Law Subcommittee is comprised of the following commit-

tee member s: Hayley Cheng, Chair, Judge Blaine J Kobayashi, Judge Summer M Kupau-Odo, Judge M K anani Laubach, Judge Clarissa Y. Malinao, Judge Rowena A Somerville, Kir sha Durante, Richard Sing, Wilson Ung a, and Dawn West.

APPELLATE JUDGES AND ADMINISTRATION

Hawai‘i Supreme Court: Chief Justice Mark E Recktenwald and Associate Justice Michael D. Wilson. Intermediate Court of A ppeals: Chief Judge Lisa M Ginoza, Associate Judge Keith K. Hiraoka, Associate Judge Sonja M McCullen, and Associate Judge K aren T Nakasone

Robert Calma, Administrator, Adult Client Services Branch, T hird Circuit; Dean Hiraki, De puty Chief Court Administrator for Client Services, T hird Circuit; Brandon Kimura, De puty Administrative Director of the Courts; Michael Klinger, Law Clerk to Associate Justice Michael D Wilson; Sandy Kozaki, Chief Court Administrator, Second Circuit; Lisa Lum, Special Assistant to the Administrative Director of the Courts; Dawn Nekoba, Judicial Assistant to Associate Justice Michael D Wilson; Cher yl Salmo, De puty Chief Court Administrator for Operations, T hird Circuit; K atherine Schuko, Law Clerk to Judge Kristin Hamman; and Mar sha Yamada, De puty Chief Court Administrator for Operations, Second Circuit.

JUDGES

Judge Stephanie Char, Judge Dexter D e l Ro s a r i o ( r e t ) , Ju d g e We n d y DeWeese, Judge T homas Haia, Judge Kristin Hamman, Judge Jill Haseg awa, Judge Jef frey Hawk, Judge Adrianne Heely, Judge Shirley K awamura, Judge James K awashima, Judge Gregor y Meyer s, Judge Trish Morikawa, Judge Darien Nag ata, Judge Henr y Nakamoto, Judge Shanlyn Park, Judge Catherine Remigio, Judge Kenneth Shimozono, Judge Kimberly Taniyama, Judge Michael Town (ret ), and Judge Kristine Yoo

ATTORNEYS

Marissa Agena, Kellen Akamu, Francis Alcain, William Bag asol, William Bento, Annalisa Ber nard Lee, T homas Brady, T homas Christensen, Charles Cr yan, Elizabeth Cuccia, Craig De Costa, Manta Dircks, Jessica

Domingo, Kyle Dowd, Christopher

Dunn, Christian Enright, Sean Fitzsimmons, Darcia Forester, Sat

Freedman, Ste phen Fr ye, Voltaire

Gansit, Richard Gronna, Catherine

Gutierrez, Sara Haley, William Harrison, Kevin Hashizaki, Lee Hayakawa, We n d y H u d s o n , Jo n I k e n a g a , L i s a I t o mu r a , A n d r e w I t s u n o, S h a n n o n K a g a w a , Ha‘aheo K aho‘ohalahala, Alen K aneshiro, Meg an K au, Andrew K e n n e d y, L e z l i e K i a h a , A l a n

Komagome, Michael Livingston, Ben

Lowenthal, Cheuk Fu Lui, Frederick

Macapinlac, Matthew Mannisto, Tiara

Maumau, Patricia Mau-Shimizu, Jason

McFarlin, Robert Merce, Mica Metter, Charles Mur ray, Tricia Nakamatsu, Lauren Nakamura, Steven Nichols, Sarah Nishioka, Nicole O’Kief, Robert Olson, Stanton Oshiro, T homas Otake, K atherine Perazich, David Pullman, Melanie Rag amat, Ramsey Ross, Tyler Saito, Danielle Sears, Shannon Sheldon, Keith Shigetomi, Keola Siu, Andrew Son, James Tabe, Teal Takayama, Rachel Thompson, Mark Tom, Kimberly Torigoe, David Van Acker, Christopher Van Marter, Jer r y Villanueva, Kelden Waltjen, Annaliese Wolf, and Heather Wolfenbarger

OTHER GUESTS

Edmund “Fred” Hyun, Hawai‘i Paroling Authority, Chair; Christin Johnson, Hawai‘i Cor rectional System Over sight Commission, Over sight Coordinator; and Lauren Yamaguchi, Law Student, Northwester n Univer sity Pritzker School of Law.

1 HCR 85 Task Force, Creating Better Outcomes, Safer Communities: Final Re port of the House Concur rent Resolution 85 Task Force on Prison Refor m to the Ha wai‘i Le gislature 2019 Re gular Session, (December 2018), https://www courts state hi us/wpcontent/uploads/2018/12/HCR85 task force final re port.pdf.

2 Population data for Hawai‘i’s inmates housed at the Saguaro Cor rectional Center in Eloy, Arizona were not included in the presentation as Saguaro is a privately-run facility

3 HCSOC meetings are held at 9:00 am on the third T hur sday of each month Attendees can participate either in-per son or virtually.

4 HCSOC website: hcsoc hawaii gov

5 HB1567: Relating to Criminal Pretrial Refor m

6 HOPE probation (Hawaii’s Opportunity Probation with Enforcement) was launched in 2004 with the goal of reducing “probation violations by drug of fender s and other s at high risk of recidivism ” Probationer s in HOPE Probation receive swift, predictable, and immediate sanctions - typically resulting in several days in jail - for each detected violation, such as detected drug use or missed appointments with a probation of ficer (https://www courts state hi us/special projects/hope/about hope probation)

7 HCSOC email: hcsoc@hawaii gov; Christin Johnson’s email: christin.m.johnson@hawaii.gov.

8 Hawaii Revised Statute (“HRS”) § 706606 5(6) provides in part as follows:

(6) T he court may impose a lesser mandator y minimum period of imprisonment without possibility of parole than that mandated by this section where the court finds that strong mitig ating circumstances war rant the action Strong mitig ating circumstances shall include, but shall not be limited to the provisions of section 706-621

9 Hawaii Paroling Authority, Guidelines for Establishing Minimum Ter ms of Imprisonment, https://dps hawaii gov/wpcontent/uploads/2012/09/HPA-Guidelinesfor-Establishing-Minimum-Ter ms-of-Imprison ment pdf

10 HRS § 706-621(2) provides as follows:

(2) T he following factor s, to be accorded weight in favor of withholding a sentence of imprisonment:

(a) T he defendant’s criminal conduct neither caused nor threatened serious har m;

(b) T he defendant acted under strong provocation;

(c) T here were substantial g rounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;

(d) T he victim of the defendant’s criminal

conduct induced or facilitated its commission;

(e) T he defendant has not histor y or prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime;

(f) T he defendant’s criminal conduct was the result of circumstances unlikely to recur;

(g) T he character and attitude of the defendant indicate that the defendant is unlikely to commit another crime;

(h) T he defendant is particularly likely to respond af fir matively to a prog ram of restitution or probationar y prog ram or both’

(i) T he imprisonment of defendant would entail excessive hardship to the defendant or the defendant’s de pendents; and

(j) T he expedited sentencing prog ram set forth in section 706-606.3, if the defendant has qualified for that sentencing prog ram

11 Council on Criminal Justice Task Force on Policing, No-Knock War rants and Police Raids: Policy Assessment, https://assets foleon com/euwest-2/uploads-7e3kk3/41697/pdf - no kno ck war rants afc61934d317 pdf, (Januar y 2021).

12 Sack, Kevin, Door-Busting Dr ug Raids Leav e a Trail of Blood, N Y Times, (March 18, 2017) https://www nytimes com/ interactive/2017/03/18/us/forced-entr y-war rantdrug-raid html?smid=pl-share

13 Related to Policing, S B 726, 31st Legis § 1 (2021)

14 U S v Banks 124 S Ct 521 (2003)

15 HRS § 803-11 provides as follows:

Whenever it is necessar y to enter a house to ar rest an of fender, and entrance is refused, the of ficer or per son making the ar rest may force an entrance by breaking door s or other bar rier s But before breaking any door, the of fice or per son shall fir st demand entrance in a loud voice, and state that the per son is the bearer of a war rant of ar rest; or if it is in a case in which ar rest is lawful without war rant, the of ficer or per son shall substantially state that infor mation in an audible voice

16 HRS § 803-37 provides as follows:

T he of ficer charged with the war rant, if a house, store, or other building is designated as the place to be searched, may enter it without demanding per mission if

the of ficer finds it open If the door s are shut, the of fice shall declare the of ficer’s of fice and the of ficer’s business and demand entrance If the door s, g ates, or other bar s to the entrance are not immediately opened, the of fice may break them When entered, the of ficer may demand that any other part of the house, or any closet or other closed place in which the of ficer has reason to believe the property is concealed, may be opened for the of ficer’s inspection, and if refused the officer may break them If an electronic device or storage media is designated as the item to be searched, the court may authorize the of ficer to obtain technical assistance from individuals or entities, located within or outside the State, in the examination of the item; provided that the of fice shall submit a swor n statement to the judge or magistrate, certifying the reliability and qualifications of the individuals or entities, and the reason their assistance is necessar y, provided further that no individual or entity shall be compelled to provide technical assistance without their consent.

17 Haw Const art I, § 7 provides as follows:

T he right of the people to be secure in their per son, houses, paper s and ef fects ag ainst unreasonable searches, seizures and invasions of privacy shall not be violated; an no war rants shall issue but upon probable cause, supported by oath or affir mation, and particularly describing the place to be searched and the per sons or things to be seized or the communications to be interce pted.

18 T he Court also held that the law enforcement’s failure to wait a reasonable amount of time after demanding entr y before opening the door was another violation of HRS § 803-11

19 Related to Policing, supra note 10

20 HRS § 291E-1 provides in part as follows:

“Highly intoxicated driver” means a person whose measurable amount of alcohol is:

15 or more g rams of alcohol per one hundred milliliter s or cubic centimeter s of the per son ’ s blood; or

15 or more g rams of alcohol per two hundred ten liter s of the per son ’ s breath

C A S E N O T E S

Supreme Court

Civil Procedure

Public Access Trails Haw v Haleakala Ranch Co , No SCWC-16-0000559, March 15, 2023, (Wilson, J., with McKenna, J , also concurring separately, with whom Wilson, J , joins) This case involved the recovery of attor neys ’ fees and costs by a plaintiff from a private defendant under the private attor ney general (PAG) doctrine. Petitioners prevailed against Respondent/Defendant-A ppellee Haleakal Ranch Company (HRC) in procuring a judgment that the State, not HRC, owned a portion of Haleakal Trail that ran over HRC’s property This appeal stemmed from Petitioners’ attempt to recover attor neys ’ fees from HRC under the PAG doctrine The PAG doctrine has promoted litigation aimed at the preservation and conservation of Hawaii’s land and natural resources, as well as litigation vindicating the rights of the Native Hawaiian community The viability of the PAG doctrine hinges on plaintiffs being able to rely on the doctrine’s promise that they will receive reasonable compensation for their efforts on behalf of the public. The Hawaii Supreme Court held that this promise translates into allowing plaintiffs who recover attor neys ’ fees and costs under the PAG doctrine to also recover those fees and costs reasonably incurred in litigating their initial claim for fees The Hawaii Supreme Court also held that a plaintiff may recover attor neys ’ fees under the PAG doctrine from a private defendant even where the State voluntarily participated as a co-litigant in the case The State’s participation pursuant to a joint prosecution ag reement, or other ag reement to co-litigate, is not dispositive with respect to whether a plaintiff ’ s private enforcement efforts were necessary under the PAG doctrine McKenna, J , concurred separately, with whom Wilson, J. joined. McKenna, J joined the unanimous opinion of the court but wrote separately to express her serious concer ns about issues not raised

Appeal Pointer

A withdrawal and substitution of appellate counsel will not be approved by the appellate court unless the withdrawal and substitution comply with the requirements of HRAP 50(b)

on appeal These issues would not be raised by the parties, because the parties created them by ag reeing to nontransparent processes that should not have been approved by the circuit court. As indicated in footnote 8 of the opinion, the December 19, 2014 settlement ag reement (Settlement) was redacted as to provisions pertaining to Petitioners first motion for attor neys ’ fees seeking more than $1 million.

James B Nutter Co v Namahoe, No SCWC-17-0000496, March 31, 2023, (Recktenwald, C J ) Elton Lane Namahoe, Sr lost his home to a judicial foreclosure of a reverse mortgage after he allegedly failed to make $500 00 worth of repairs The lender, James B Nutter Company (JBNC), brought a foreclosure proceeding against Namahoe for allegedly defaulting on his mortgage

More than two and a half years after the foreclosure, Namahoe filed an HRCP Rule 60(b) Motion for Relief from Judgment, specifically citing subsections 60(b)(3), (4), and (6) The circuit court denied these motions, in addition to Namahoe’s subsequently filed HRCP Rule 59 Motion for Reconsideration

On appeal to the ICA, Namahoe argued that JBNC sought foreclosure on impermissible g rounds and that: (1) the circuit court abused its discretion in denying Namahoe’s HRCP Rule 60(b)(3) motion because JBNC and its attor neys committed fraud in seeking the foreclosure; (2) under HRCP Rule 60(b)(4), the circuit court’s judgment was void because he was not properly served; (3) under HRCP Rule 60(b)(6), JBNC committed fraud on the court by failing to disclose the facts supporting foreclosure and by f

affir mation requirements; and (4) the circuit court erred in denying his HRCP Rule 59 Motion for Reconsideration

The ICA affir med the circuit court’s judgment in favor of JBNC In his application for certiorari, Namahoe asked the Hawaii Supreme Court to vacate the ICA’s judgment affir ming the circuit court’s denial of his motions The Hawaii Supreme Court ag reed with the ICA that the circuit court did not err in finding that Namahoe was time-barred from raising a HRCP Rule 60(b)(3) motion and that, under HRCP Rule 60(b)(4), the judgment was not void, because he was personally served. Further, the ICA and circuit court did not err in rejecting Namahoe’s Rule 59 Motion for Reconsideration. But the Hawaii Supreme Court concluded that the ICA erred in affir ming the circuit court’s denial of Namahoe’s request for relief under Rule 60(b)(6) Specifically, the Hawaii Supreme Court held that there are g rounds for relief both on a fraud on the court theory and under the equitable principles gover ning foreclosure JBNC submitted a materially deficient attor ney affir mation to the circuit court in support of its motion for summary judgment, and the balance of equities weighed strongly against foreclosure.

T he Office of Hawaiian Affairs v Kondo, No. SCAP-21-000071, A pril 5, 2023, (Eddins, J ) In this declaratory action, two constitutionally created state agencies squared off over two major laws, HRS § 23-5 and the attor ney-client privilege, codified in HRS Chapter 626 The Office of the Auditor believed HRS § 23-5 empowers it to receive all records of an auditee, even attor ney-client communications. The Office of Hawaiian Affairs, the subject of an audit, sued It argued HRS § 626-1, Rule 503, the lawyer-client privilege, overcame the auditor’s authority and preserves the confidentiality of attor ney-client communications. The Hawaii Supreme Court held that the Office of the Audit o r l a c k e d a u t h o r i t y t o p i e r c e t h e

attor ney-client privilege and obtain an auditee’s confidential communications

The Hawaii Supreme Court also rejected the Office of the Auditor’s jurisdiction and non-justiciability bars to the Office of Hawaiian Affairs’ suit

Commercial

State v Bristol-Myers Squibb Co , No SCAP-21-0000363, March 15, 2023), (Eddins, J , with Wilson, J , dissenting) This case was about whether two pharmaceutical companies DefendantsA ppellants Bristol-Myers Squibb and Sanofi (Defendants) violated Hawaii’s Unfair or Deceptive Acts or Practices law (UDAP) by misleading the public about the safety and efficacy of their antiplatelet drug, Plavix. The State, in a 2014 complaint, alleged that Plavix was less effective in patients who had certain liver-enzyme mutations (poor responders) The State alleged Defendants violated Hawaii law in two ways: First, it asserted that the companies despite knowing about the issues with Plavix

failed to update the drug’s war nings to infor m the public Second, the State claimed the defendant companies intentionally kept the poor responder issue under wraps and suppressed research into it to protect their bottom line The circuit court ag reed with the State on both points The court held that BristolMyers Squibb and Sanofi had violated UDAP. The court imposed an $834 million penalty The Hawaii Supreme Court vacated this penalty The summary judgment ruling on materiality circumscribed the companies’ ability to present a full defense, marred the court’s deceptive acts holding, and affected the penalty award The court’s holding that the companies committed unfair acts under UDAP had sufficient, independent evidentiary support The Hawaii Supreme Court also concluded that Defendants’ procedural arguments failed. The court correctly deter mined that the State’s claims were not barred by UDAP’s safe harbor provision or its statute of limitations Nor were they

preempted by federal law.

Wilson, J , dissented According to Wilson, J , the Majority’s holding stripped protection from a global set of consumers who unwittingly took Plavix without understanding that it imposed risk of heart attack, stroke, and death. These consumers did not understand Plavix imposed g rave risk because they were deceived, in violation of Hawaii’s UDAP, by phar maceutical companies Bristol-Myers Squibb (BMS) and Sanofi (together, the Defendants). At issue in this case was the viability of the legal framework protecting consumers whose lives depend on phar maceutical companies not deceiving them about the safety and efficacy of the drugs they sell The circuit court was correct to g rant summary judgment on materiality as a matter of law The judgment and penalties should be affir med.

Contract

Nationstar Mtge. v. Association of Apartment Owners of Elima Lani Condominiums,

No SCWC-18-0000475, March 15, 2023, (Recktenwald, C J ) The Association of A partment Owners of Elima Lani Condominiums (AOAO) foreclosed on a unit owned by Thomas Blake K David and Sarah L. David (the Davids) for failure to pay common assessments

Later, Nationstar Mortgage, LLC (Nationstar) filed a complaint for foreclosure of the unit alleging the Davids had defaulted on their mortgage Almost two years after AOAO came into possession of the unit, the circuit court entered summary judgment and an interlocutory decree of foreclosure in favor of Nationstar. However, the circuit court did not confir m a foreclosure sale of the unit at a public auction until nearly eleven months later AOAO contended that it was entitled to the rents that accrued from the unit during the period between summary judgment and the confir mation of sale

A foreclosure judgment is a final judgment extinguishing the previous owner ’ s interest in property. Thus, at common law, AOAO would not be entitled to postforeclosure rents However, the Hawaii Supreme Court held that HRS § 514B146(n) provides a scheme for distributing rents following a lender’s foreclosure against an association. Here, provided AOAO had not already recouped its losses through the rent it previously collected, it would be entitled to all or some of the rent collected for Nationstar after summary judgment

Criminal

State v Mortensen-Young, No SCAP22-0000045, March 15, 2023, (Nakayama, J , with Wilson, J , dissenting) This case concer ned whether HRS § 805-1 and this court’s holding in State v. T hompson, 150 Hawaii 262, 500 P 3d 447 (2021), applied to a complaint used to charge a defendant with Operating a Vehicle Under the Inf luence of an Intoxicant (OVUII) after the defendant was properly arrested without a warrant. In July, August, and October of 2021, Plaintiff-A ppellant the State charged Defendant-A ppellees by complaint with OVUII in the district court On Decemb e r 2 8 , 2 0 2 1 , A p p e l l e e s e a c h f i l e d a m o t i o n t o d i s m i s s, a r g u i n g t h a t “ t h e

complaint is not supported by:” (1) “The complainant’s signature; or ” (2) “A declaration submitted in lieu of affidavit,” as required by this court’s decision in T hompson The Hawaii Supreme Court held that the State’s argument that the complaints in A ppellees’ cases were not required to comply with HRS § 8051 had merit. First, T hompson and the plain language of HRS § 805-1 establish that HRS § 805-1 applies only to complaints for a penal summons or an arrest warrant Second, case law inter preting previous versions of HRS § 805-1 confir ms that the statute applies only to complaints for a penal summons or an arrest warrant The State properly initiated the criminal proceedings against A ppellees pursuant to Hawaii Rules of Penal Procedure Rule 7 Accordingly, the Hawaii Supreme Court held that the complaints in A ppellees’ cases did not have to comply with HRS § 805-1

Wilson, J dissented Wilson, J concluded that: (1) the statutory language of HRS § 805-1 made plain that its requirements applied to all complaints; (2) the Majority singled out defendants that were arrested without a warrant and stripped them of their right to challenge the veracity of their accuser; and (3) the complaints were fatally defective because they did not comply with HRS § 805-1

State v Angei, No SCWC-180000940, March 15, 2023, (Recktenwald, C.J., with Wilson, J., concurring and dissenting) Aiven Angei (Angei) was charged with Murder in the Second Deg ree after an altercation with Jonathan Makana Kanui-F lores (Kanui-F lores) that ended with Kanui-F lores being stabbed multiple times. The circuit court found Angei guilty of the lesser included offense of Manslaughter based on reckless conduct and the ICA affir med. Angei argued that the requirements of HRS § 327C-1 applied to all criminal cases involving death, including his case. As the Hawaii Supreme Court held in State v Moon, No SCAP-19-714, 2023 WL 1878104 (Haw. Feb. 10, 2023), as corrected (Feb 17, 2023), this statute

medically recognized criteria of determining the occurrence of death” – are required or implicated. Here, a death deter mination was neither required nor implicated because the State and Angei stipulated that Kanui-F lores was declared brain dead and cardiac dead, and that Kanui-F lores was approved for organ donation. Moreover, the medical examiner opined that Kanui-F lores died as result of a stab wound that penetrated his skull and entered his brain. Thus, there was sufficient evidence for a reasonable juror to conclude that death was proven beyond a reasonable doubt. Accordingly, the circuit court did not err in denying Angei’s motion for judgment of acquittal.

Wilson, J , concurred and dissented, concluding HRS § 327C-1 protects individuals being kept alive by artificial means of support by requiring a specific process for declaring legal death prior to the harvesting of their organs This legal protection compels two separate physicians to produce written opinions that the person at issue “has experienced irreversible cessation of all functions of the entire brain, including the brain stem” prior to the removal of any of their vital organs for transplant, and the ter mination of artificial means of support Kanui-F lores did not receive that protection. Because Kanui-F lores was never declared legally dead in compliance with HRS § 327C-1 before his organs were harvested, the State could not prove that his death was caused by Angei rather than by the removal of his organs

In re DM, No SCWC-20-0000485, March 15, 2023, (Eddins, J , with Nakayama, J., dissenting, with whom Recktenwald, C J joins) A minor stabbed another minor The State prosecuted, and the minor, DM, argued selfdefense The family court rejected his defense It ruled the prosecution had proven attempted assault in the first deg ree beyond a reasonable doubt In Hawaii self-defense cases, the defendant’s subjective belief drives an objective reasonableness standard Factfinders wear the defendant’s headset and experience the event from that reality. Then, from

that perspective, the judge or jury evaluates the objective reasonableness of the defendant’s subjective belief that self-protective force was necessary Here the family court inadequately assessed the circumstances from DM’s perspective The court also misapplied key self-defense elements: the use of deadly force and the duty to retreat Substantial evidence did not support DM’s adjudication and therefore, the Hawaii Supreme Court reversed.

Nakayama, J , with whom Recktenwald, C J , joined, dissented Nakayama, J. disag reed with the Majority’s conclusion that substantial evidence did not support DM’s adjudication Nakayama, J. also departed from the Majority’s deter mination that the family court’s selfdefense analysis was erroneous The family court adequately assessed the circumstances from DM’s perspective and properly did not apply the “multiple attackers” circumstance.

State v Lafoga, No SCWC-200000175, March 15, 2023, (Eddins, J., with Wilson, J , dissenting in part) This case addressed (1) a constitutional challenge to a jury selection process that identified prospective jurors by number, not name, and (2) a challenge to extended ter m sentencing jury instructions for attempted murder Defendants Brandon Lafoga and Rainer Ines were each charged with having committed several crimes During jury selection and throughout the trial, the Circuit Court implemented a system in which the names of the jurors, while known to the attor neys, were withheld from disclosure on the record. Instead, the jurors would be identified in the proceedings by numbers only The Hawaii Supreme Court noted that the use of a “numbers jury” may under mine the presumption of innocence and should be used sparingly

Nevertheless, the Hawaii Supreme Court found nothing in the record indicating that the defendants had been prejudiced by the court’s jury selection method and affir med Brandon Lafoga and Ranier Ines’ convictions, but reversed the defendants’ sentences of life without the possibility of parole, because the extended

Experienced in mediating and deciding complex family law, wills, trusts and probate cases including family business disputes. Also experienced in commercial, corporate, personal injury, HR and business mediations and arbitrations.

ter m jury instructions and special interrogatories were prejudicially erroneous and misleading

Wilson, J , concurred and dissented in part, stating that the Majority condoned an anonymous jury that violated the defendants’ fundamental right to twelve impartial judges of the facts guaranteed to them by the sixth amendment of the United States Constitution and article I, section 14 of the Hawaii Constitution By assuming, without evidence, that the defendants were perceived as dangerous by the twelve citizens who would decide their guilt or innocence, the circuit court also deprived defendants of the constitutional right to be presumed not guilty in violation of article I, section 14 of the Hawaii Constitution The unjustified withholding of jurors’ names from the defendants further violated article I, section 14 of the Hawaii Constitution by unduly restricting voir dire, which deprived the defendants of effective assistance of counsel In addition, the circuit court’s belief that the jurors would be afraid to serve on the jury inferred that the defendants were deprived of their right to an impartial judge, in violation of article I, section 5 of the Hawaii Constitution Each of these errors were structural. Structural error is an error of magnitude that threatens the very fairness of the trial process No justification or evidentiary weighing can render the breach of such fundamental fair ness inconsequential The commission of structural error requires that the victim of the error receive a new trial. Secreting the identity of judges erodes public confidence in our judiciary Any attempt to do so requires this court’s highest scrutiny Without any evidence of danger posed by the defendants to the jury, the court cannot contravene the presumption of innocence by creating an atmosphere of presumed guilt as an excuse to conduct the adjudication of guilt behind the cloak of anonymity The tradition of identified judges and jurors is a center piece of fair ness in our criminal justice system

State v Talo, No SCWC-20-0000457, March 15, 2023, (McKenna, J., with Recktenwald, C J , concurring in part

and dissenting in part, with whom Circuit Judge Malinao, joins). This opinion addressed whether the circuit court abused its discretion by imposing a probation condition allowing warrantless searches by a probation officer for contraband (special condition Q) Logovii Talo (Talo)’s probation was revoked after a warrantless search by probation officers recovered a firear m and ammunition from his home. After acceptance of certiorari, the Hawaii Supreme Court ordered supplemental briefing pursuant to Hawaii Rules of A ppellate Procedure Rule 28(b)(4)(D), asking whether the imposition of special condition Q was consistent with HRS § 706-624(2) and this court’s holding in State v Kahawai, 103 Hawaii 462, 83 P 3d 725 (2004) Kahawai held that a sentencing court may not impose discretionary conditions of probation pursuant to HRS § 706–624(2) unless there was a factual basis in the record indicating that such conditions are reasonably related to the factors set forth in HRS § 706–606 and that they only involved deprivations of liberty or property reasonably necessary for the pur poses indicated in HRS § 706-606(2). The Hawaii Supreme Court held that the circuit court did not abuse its discretion by imposing special condition Q because Talo was convicted of a felony and a cr i m e o f v i o l e n c e, w h i c h p ro h i b i t e d h i m f ro m o w n i n g o r p o s s e s s i n g firear ms and ammunition, and because h e h a d n o t i c e t h a t “ c o n t r a b a n d ” w o u l d i n c l u d e s u c h i t e m s Recktenwald, C.J., joined by Circuit Judge Malinao, concurred in part and dissented in part Recktenwald, C J ag reed with the majority’s holding that Special Condition Q complies with HRS § 706-624(2) and Kahawai, insofar as it related to defendant’s possession of firear ms and ammunition However, in Recktenwald, C J ’ s view, special condition Q would be a per missible condition of probation even if the predicate crime was not a felony or a crime of violence

A key pur pose of probation is to deter probationers from committing crimes Contraband is, by definition, goods that are illegal to possess. Enabling probation officers to undertake warrantless searches

for contraband deters probationers from acquiring illegal goods, and allows probation officers to protect public safety by investigating potential criminal activity For these reasons, special condition Q is “reasonably related” to the aims of probation and involves only “reasonably necessary ” deprivations of liberty under HRS § 706-606, irrespective of the probationer’s original offense

State v He witt, No SCWC-160000460, March 15, 2023, (McKenna, J , with Nakayama, J., dissenting with whom Recktenwald, C J , joins) This appeal addressed Miranda rights arising out of police questioning of a person confined to a hospital bed Cyrina Hewitt (Hewitt) was charged with operating a vehicle under the inf luence of an intoxicant (OVUII) and driving without a license (DWOL) Hewitt moved to suppress evidence based on a failure to provide Miranda war nings Hewitt was convicted of both offenses On appeal to the ICA, Hewitt argued in part that she had been subjected to custodial interrogation without the requisite Miranda war nings In State v. He witt, 149 Hawaii 71, 481 P.3d 713 (A pp 2021), the ICA held that Hewitt was not entitled to Miranda war nings because (1) her inability to leave the scene of questioning was not the result of detention by law enforcement; (2) the officers did not have probable cause to arrest until Hewitt stated she had been driving a truck; and (3) the record did not ref lect sustained and coercive questioning of Hewitt by the officers. The ICA also held, however, that the district court erred by (1) overruling Hewitt’s HRS § 621-26 trial objection by failing to conduct a voluntariness hearing; and (2) denying Hewitt’s motion to suppress her blood test result because a search warrant had not been obtained Hewitt sought certiorari review of the district court’s motion to suppress denial and the ICA’s Miranda analysis Hewitt posited that, u n d e r t h e I C A’s r a t i o n a l e, a nyo n e hospitalized but not under arrest need not be Mirandized because law enforcement did not prevent their ability to leave. The Hawaii Supreme Court ag reed with Hewitt First, the Hawaii

Supreme Court held that Hewitt was in custody when probable cause developed. State v Sagapolutele-Silva, 151 Hawaii 283, 511 P 3d 782 (2022), overruled the bright-line rule articulated in State v Ketchum, 97 Hawaii 107, 34 P 3d 1006 (2001) The Sagapolutele-Silva majority said it was clarifying that, despite this holding, the existence of probable cause is not conclusive and is only a factor to consider in deter mining whether someone is in custody under a “totality of circumstances” and therefore entitled to Miranda war nings The Hawaii Supreme Court expressly overruled SagapoluteleSilva’ s abrogation of Ketchum’ s bright-line rule and held that the Ketchum rule remains in effect: Miranda war nings are required by article I, section 10 of the Constitution of the State of Hawaii when probable cause to arrest has developed And in Hewitt’s case, probable cause had developed before she was asked whether she had been driving.

Second, the Hawaii Supreme Court held that, based on the totality of circumstances, Hewitt was in custody and was therefore entitled to Miranda war nings even before probable cause developed Police interrogation occurring in a medical treatment setting presents a special circumstance under the “totality of circumstances” test. The Hawaii Supreme Court generally adopted the First Circuit’s approach for pur poses of the constitution’s article I, section 10 right against self-incrimination (United States v Infante, 701 F 3d 386, 396 (1st Cir 2012))

The Hawaii Supreme Court held that if a person is unable to leave a place of interrogation due to circumstances incident to medical treatment, deter mining whether the person is “in custody” under a totality of circumstances requires an inquiry into whether the person was at liberty to ter minate the interrogation and cause the officer to leave Under the “totality of circumstances” of this case, Hewitt was in custody well before probable cause developed Hence, the district court and the ICA erred by holding that Miranda war nings were not required until Hewitt responded affir matively to an officer ’ s question as to whether she had been driving a truck found damaged on a roadside.

Nakayama, J. dissented, with whom Recktenwald, C J joined In this case, an unknown male dropped Hewitt at Kona Community Hospital. Then, HPD officers were called to the hospital by emergency room staff to investigate Hewitt as an assault victim. The officers first encountered Hewitt in a hospital room at approximately 1:00 a m Due to her injuries, the officers attempted to determine if Hewitt was an assault victim A fire paramedic then told the officers about a vehicle on the roadside. The officers left the hospital room and ter minated the initial interview with Hewitt

The officers then lear ned that an unoccupied truck, which contained Hewitt’s identification card, had been located The officers retur ned to the hospital room for a second interview and asked Hewitt whether she had been in a traffic accident. Hewitt answered in the affirmative, and the officers arrested Hewitt for suspicion of Operating a Vehicle

Under the Inf luence of an Intoxicant (OVUII) The officers did not provide Hewitt with Miranda war nings before she was arrested. Based on the totality of the circumstances, Nakayama, J did not believe Hewitt was “in custody before that point in time.” Here, HPD officers responded to a request from emergency room staff to investigate Hewitt as an assault victim and not as a suspect in any crime. Moreover, officers should not be discouraged from investigating when they lear n about a victim of an assault and receive a request to investigate.

State v Vaden, No SCWC-200000481, March 15, 2023, (Eddins, J.,

with Wilson, J , dissenting, with whom McKenna, J joins) This case was about whether HRS § 706-671ever entitles a defendant to “double count” concurrently-ear ned detention or incarceration credit against later-imposed consecutive sentences The Hawaii Supreme Court held that under HRS § 706-671(1) presentence detention time must be counted only once against the agg regate of a defendant’s consecutive sentences This is true even if those consecutive sentences are spread across multiple cases Likewise, the Hawaii Supreme Court held that under HRS § 706-671(2) time served against concurrently running probation sentences that are later revoked and converted to consecutive ter ms of imprisonment must be counted only once against the agg regate of a defendant’s consecutive sentences in one or more cases The Hawaii Supreme Court also held that when detention or prison time is accrued before sentencing, or pursuant to a laterrevoked probationary sentence, the double jeopardy clause’s prohibition on multiple punishments is not violated so long as the defendant’s total period of detention and imprisonment does not exceed the statutory maximum ter m for the offenses at issue.

Wilson, J , dissented, joined by McKenna, J Wilson, J dissented to the Majority’s improper extension of the sentence of all people serving consecutive sentences who have been incarcerated pretrial and during their probation. In so doing the Majority increases the population of Hawaii’s incarcerated people in violation of HRS §§ 706-671(1) and 706671(2) Based on the plain language of

the statutory provisions, Vaden’s presentence detention time and probation incarceration time should be deducted from each of the five-year and ten-year sentences comprising his fifteen-year consecutive sentence, rather than just once from the agg regate fifteen-year consecutive sentence The Majority’s misinterpretation of the credit due Vaden for his previous incarceration improperly extends Vaden’s sentence by failing to deduct 340 days credit from Vaden’s tenyear sentence. Depriving Vaden of credit towards each of the offenses comprising his fifteen-year consecutive sentence contravenes important Hawaii public policy, codified in HRS § 353L, 3(b), to reduce the State’s incarcerated p o p u l at i o n . I n a d d i t i o n , t h e p l e a a g r e e m e n t e n t e r e d i n t o w a s i l l e g a l , b e c a u s e i t p re c l u d e d t h e c i rc u i t c o u r t f ro m a p p l y i n g Va d e n ’ s i n d i v i d u a l c i rc u m s t a n c e s t o h i s re s e n t e n c i n g fo r v i ol at i o n o f h i s p ro b at i o n , a s i s re q u i re d u n d e r H R S § 7 0 6 - 6 0 6 .

State v Ibar ra, No SCWC-190000697, March 15, 2023, (Wilson, J., with Recktenwald, C J dissenting, with whom Nakayama, J , joins) This case arose from A ppellant Ibarra’s jury conviction for promoting prostitution in violation of HRS § 712-1203(1) After the jury retur ned its verdict of guilty, Ibarra filed a motion for judgment of acquittal, or in the alter native, for a new trial, that was denied At issue was whether a reasonable juror could have concluded that Ibarra “profit[ed] from prostitution” within the meaning of HRS § 712-1201 Because there was insufficient evidence that the defendant gained some benefit or value from another’s prostitution activity, the Hawaii Supreme Court reversed the circuit court’s judgment of conviction and the ICA’s judgment on appeal affir ming the conviction.

Recktenwald, C J , dissented, with whom Nakayama, J joined In the instant case, two women came to Hawaii, and once here, engaged in prostitution

A ppellant Ibarra planned the trip: she bought f light tickets for herself and the complaining witness (CW) and paid for the room they shared As CW ear ned money from “dates,” she reimbursed Ibarra for her half of the hotel expenses

and for the f light ticket to Hawaii

Though Ibarra was engaging in prostitution herself, a jury found that she “profit[ed] from prostitution” under HRS §§ 712-1201(2) and 712-1203 Ibarra testified that she had an understanding with CW that CW would engage in prostitution to pay her back for the costs of the trip, and she accepted money from CW knowing it was ear ned through prostitution services that CW had personally rendered. The majority held that Ibarra’s actions did not fall under HRS §§ 712-1201(2) and 7121203 because she did not “profit.” To profit from prostitution, Ibarra had to benefit financially from the arrangement with CW, i.e., she needed to end up with more money or property than she started with The plain language and legislative history of Haw Rev Stat §§ 712-1201(2) a n d 7 1 2 - 1 2 0 3 s h ow t h at t h e s t at u t e s penalize any ag reement or understanding to receive the proceeds of another person ’ s prostitution activities, including when the payment is received as reimbursement for a debt Considering the dynamic of economic coercion in trafficking relationships, Recktenwald, C J was concer ned that the majority’s interpretation unintentionally created a safe harbor for traf ficker s who have extended a loan or a service to their victims but have not yet “profited” from the ar rangement

Family

In re J H , No SCWC-21-0000316, March 15, 2023, (Eddins, J , with Wilson, J., dissenting (pending)). At the start of this case, the family court appointed attor neys for a mother and father (Parents) Then, when Parents failed to appear at a court hearing, the court discharged counsel Later, Parents reappeared, the court reappointed counsel, and the case prog ressed After a trial, the family court ter minated Parents’ parental rights Because the family court discharged Parents’ counsel before the case had ended, the ICA ruled that structural error occurred. It ordered a new trial. A family court must timely appoint counsel in parental rights cases Otherwise, structural error will nullify an outcome adverse to a parent But the appointment, discharge, and reappointment of counsel

is different The Hawaii Supreme Court held that if the family court appoints counsel at the onset of a parental rights case, and later there is a break in representation due to a parent’s voluntary absence, then there is no structural error.

Labor

Academic Lab United v Board of Re gents of the U. of Haw., No. SCAP-22-0000029, A pril 5, 2023, (Recktenwald, C J ) Petitioner Academic Labor United (ALU) represented g raduate student employees of the University of Hawaii who wished to engage in collective bargaining ALU brought suit against the Board of Regents of the University of Hawaii (BOR), the Hawaii Labor Relations Board (HLRB) and the State of Hawaii (State) ALU contended that a pair of 1972 decisions from the Hawaii Public Employment Relations Board (HPERB, predecessor to HLRB) finally deter mined that g raduate assistants were not “ employees” under HRS Chapter 89 and that these decisions thus foreclosed g raduate assistants from exercising the collective bargaining rights provided to public employees under article XIII, section 2 of the Hawaii Constitution and HRS Chapter 89, its implementing legislation. ALU requested declaratory judgments stating that ALU’s members are “ persons in public employment” under article XIII, section 2, that they are “public employees ” under HRS Chapter 89, and that HLRB’s rules lack any process by which persons in positions previously excluded from collective bargaining may seek relief The circuit court dismissed the case on jurisdictional g rounds. Under HRS § 632-1, to exercise jurisdiction over ALU’s action, the circuit court must be satisfied that ALU has exhausted its statutory and administrative remedies and that declaratory judgment would “ter minate the uncertainty or controversy ” The circuit court found that neither requirement had been met and dismissed the case without reaching the merits The Hawaii Supreme Court affir med. ALU did not exhaust its administrative remedies HPERB’s 1972 decisions were not final rulings on whether ALU and its members are excluded from HRS Chapter 89. Hawaii Administrative Rules § 12-42-9

(effective Feb 6, 1981) per mits an “interested . . . organization” such as ALU to seek a declaratory judgment from HLRB Because ALU did not yet invoke Haw. Administrative R. § 12-42-9 to clarify whether its members are “employees” under HRS Chapter 89, it did not exhaust administrative remedies, and the circuit court did not have jurisdiction over ALU s action

Land

In the Matter of the Petition of Kuulei Higashi Kanahele and Ahiena Kanahele, No SCOT-19-0000830, March 15, 2023, (Nakayama, J , with Wilson, J , dissenting with whom McKenna, J , joins) This is another case in the series of proceedings challenging the construction of the Thirty Meter Telescope (TMT) However, unlike prior proceedings that only sought to prevent the TMT from being built, A ppellants Kuulei Higashi Kanahele and Ahiena Kanahele (collectively, the Kanaheles) sought to use the Land Use Commission’s (the Commission or LUC) districting authority in a way that could compel the removal of all astronomy facilities located within the Astronomy Precinct by petitioning the Commission for declaratory relief The Commission issued a written Order Denying Petition for Declaratory Order. The Commission explained that it lacked jurisdiction (1) to use the declaratory ruling procedure to under mine decisions already made, and (2) to regulate land uses in the Astronomy Precinct because the legislature g ranted such authority to the Department of Land and Natural Resources The following day, the Kanaheles appealed to the Hawaii Supreme Court. The Kanaheles sought to use the Commission’s declaratory ruling authority (1) to challenge past decisions that astronomy facilities are per missible within conservation districts and (2) to contravene the Department’s power to regulate conservation district uses. Contrary to the Kanaheles’ claim that the Commission may restrict land uses through HRS § 205-2(e), the statute merely identified uses that are per mitted within conservation districts The statute does not authorize the Commission to exclude or enforce certain land uses within conservation districts

Wilson, J., joined by McKenna, J.,

dissented Wilson, J stated that the Majority asserted that the Kanaheles’ petition to the Commission for a declaratory order sought to “contravene” the Department’s “ powers to regulate conservation district uses. ” Wilson J. stated that the Commission’s authority to classify land is distinct from the Department’s authority to regulate conservation districts The Kanaheles’ petition requested the Commission’s declaration as to whether the land uses within the Astronomy Precinct on Mauna Kea are consistent with a conservation or urban district under HRS § 205-2 The Commission’s authority to rule on the Kanaheles’ petition does not impede the Department’s authority to gover n conservation districts The issuance by the Department of thirteen successive Conservation District Use Permits pursuant to HRS § 183C-6(a) for astronomy facilities on Mauna Kea only heightens the importance of the Commission’s authority to deter mine whether reclassification of the Astronomy Precinct is necessary under HRS §§ 2052, 205-3 1 (2005)

Intermediate Court of Appeals

Criminal

State v Okutsu, No CAAP-170000731, A pril 12, 2023, (Hiraoka, J.).

Plaintiff-A ppellant Wayne Okutsu sued Defendant-A ppellee State of Hawaii under the State Tort Liability Act (STLA), HRS Chapter 662. The STLA requires that a non-medical tort action be commenced within two years after the claim accrues The State moved to dismiss based upon the STLA statute of limitations. The circuit court g ranted the motion Okutsu appealed He contended that the State waived the statute of limitations, that the time bar should have been equitably tolled, or that there were genuine issues of material fact about waiver or equitable tolling The ICA held that the time bar imposed by the legislature is jurisdictional; it is not subject to waiver by, or equitable tolling based upon conduct of, the executive branch Okutsu’s lawsuit was filed more than two years after his tort claim accrued Accordingly, the ICA affir med the final judgment.

C O U R T B R I E F S

Celebrating Justice Paula A. Nakayama Day

Hawaii Justice Sabrina

McKenna Honored with ABA

Commission on Women in the Profession’s Most Prestigious Award

Hawaii Supreme Court Justice

Sabrina S

Circuit Court of the First Circuit Criminal Division Seeking Attorneys

The Circuit Court of the First Criminal Division is seeking attor neys interested in serving as court appointed counsel in criminal cases

Nearly 30 years to the day that she was swor n-in as an Associate Justice of the Hawaii Supreme Court (A pril 22, 1993), the Honorable Paula A. Nakayama celebrated her last day of Judiciary service hosting a Mahalo Lunch Party for as many friends and co-workers as could gather in the Supreme Court courtroom.

Guests wishing to bid her aloha waited in a long line that ended with C h i e f Ju s t i c e M a rk E . Re c k t e n w a l d presenting Justice Nakayama with a gift from the court and a framed proclamation in which he declared Friday, A pril 21, 2023, to be “Justice Paula A Nakayama Day” in the Courts of the State of Hawaii

Chief Justice Recktenwald encapsulated his thoughts on Justice Nakayama’s unprecedented three decades of service by stating, “This is how it’s done, folks!”

Penn Reappointed Per Diem Judge

Maria F Penn was recently reapp o i n t e d a s Pe r D i e m Ju d g e o f t h e District Court of the First Circuit and designated to act as Family Court per diem judge Her ter m is from May 2, 2023 to May 1, 2025

McKenna was recently honored with the 2023 Margaret Brent Women

Lawyers of Achievement Award.

Presented by the American Bar Association’s Commission on Women in the Profession, it recognizes five outstanding women lawyers who have achieved professional excellence and paved the way for other women in the legal profession

Justice McKenna was nominated by the National Asian Pacific American Bar Association, which noted that she “is a globally recognized trailblazer, a staunch advocate for diversity and inclusion in the legal profession, and a true role model, mentor, and heroine to women, especially in the LGBTQ and underrepresented communities. She epitomizes the spirit of Margaret Brent through her values, lived experiences, courage, and most importantly, her tireless dedication to inspiring and uplifting women and traditionally marginalized people with compassion, positivity, and optimism ”

Past Hawaii recipients of the Margaret Brent award are Cong resswoman Patsy Takemoto Mink (1992), Ellen Godbey Carson (2006), and U S Sen Mazie Hirono (2013) Judicial awardees include United States Supreme Court Justices Ruth Bader Ginsburg (1993) and Sandra Day O’Connor (2000), and Califor nia Chief Justice Tani CantilSakauye (2012)

A pplicants must be licensed to practice law in the State of Hawaii and have experience in litigation and/or criminal practice. A pplicants should indicate whether they have a preference of offense classifications for which they would like to be considered

Attor neys from all islands are welcome to apply by submitting a cover letter and resume to:

Judge Shirley M Kawamura

Criminal Administrative Judge

777 Punchbowl St.

Honolulu, HI 96813

Phone: 808-539-4330

Email:

12thDivision 1CC@courts hawaii gov

2023 Hawai‘i Access to Justice Conference

Save the date: Friday, June 16, 2023.

The Hawai‘i Access to Justice Conference, sponsored by the Hawai‘i Access to Justice Commission, will be an all-day event with keynote speaker, Honorable Nancy Gertner, for mer federal district court judge and now teaching at Harvard Law School

Hawai‘i Supreme Court Chief Justice Mark Recktenwald and Second Circuit Judge (ret ) Joseph Cardoza, chair of the Commission, will offer opening remarks As usual, free lunch and refreshments and six low-cost continuing legal education (“CLE”) credits will be available

AT TO R N EY WA N T E D

ASSOCIATE ATTORNEY: Our growing Honolulu law firm is seeking Associate Attorneys to join our team Position will involve handling all aspects of the litigation process, including strategy, drafting pleadings, motions, discovery, etc and cour t experience Must have good time management skills & be highly organized. Ideal Candidate will have excellent written communication skills, strong analy tical and research skills as well as a thirst for personal and professional growth Salary commensurate with experience. Must be licensed in Hawaii. For immediate consideration, please submit r e s u m e a n d w r i t i n g s a m p l e s t o : p h a n n @ h a w a i i l e g a l c o m

Now let's talk "P ER KS": Collaborative work environment, 13 paid holidays per year plus the week between Christmas and New Year's off with pay! Fully paid medical/dental/vision t h r o u g h y o u r c h o i c e o f H M S A o r K a i s e r

Permanente, company provided life insurance, paid downtown parking, 3% annual salary match through our 401K, in-house g ym, weekly lunches/breakfasts, flexible/partial work f r o m h o m e s c h e d u l e , l o w b i l l a b l e h o u r requirement the list goes on! Why not apply to be part of our PMK Ohana?!

C A R L S M I T H B A L L s e e k s a H a w a i i - l i c e n s e d attorney with one (1) or more years of litigation experience to join our Honolulu office Please send cover letter, resume, law school transcript and writing sample in confidence to:recruiting@carlsmith com

KLEINTOP & LURIA, LLP is seeking an attorney to join its family law practice Ideal applicants will have one or more years of legal experience and possess strong communication, research, and writing skills Salary will be commensurate with experience Benefits include medical, dental, and vision insurance, 401(k) plan, p a r k i n g , l i f e a n d d i s a b i l i t y i n s u r a n c e , p a i d vacation and sick days, and bar association dues. Please s e n d r e s u m e a n d w r i t i n g s a m p l e t o : KL@hifamlaw com All inquiries will be held in confidence

R EAL ESTATE AT TOR N EY We are seeking an attorney to join our firm’s real estate and project development practice g roup Candidates should have a minimum of three years of experience We offer a competitive salary, bonus, and benefits, and the oppor tunity to w o r k o n e x c i t i n g , c u t t i n g e d g e p r o j e c t s C a n d i d a t e s m a y s u b m i t t h e i r r e s u m e s t o

m a m o t o C a l i b o s o H e t h e r i n g t o n , L L LC ,

Attention: Executive Director, 1100 Alakea Street, Suite 3100, Honolulu, Hawaii 96813 All inquiries will be held in confidence

REGULATORY ATTORNEY We are seeking an a t t o r n e y t o j o i n o u r f i r m ’ s r e g u l a t o r y a n d administrative law practice group Candidates should have a minimum of three years of regulatory, administrative or litigation experience We offer a competitive salary, bonus, and benefits, and the opportunity to work on exciting, cutting edge projects Candidates may submit their resumes to Yamamoto Caliboso H e t h e r i n g t o n , L L LC , A t t e n t i o n : E x e c u t i v e D i r e c t o r, 110 0 A l a k e a S t r e e t , S u i t e 310 0 , Honolulu, Hawaii 96813 All inquiries will be held in confidence.

E X P E R T W I T N ESS

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L EG A L CO N S U LT I N G

LEGAL N U R SE CON SU LTI NG Assistance in managing the medical aspects of your case Legal Nurse Consulting, Life Care Planning, & Workers’ Compensation Nurse Case Management Cynthia L Fricke, RN, BSN, CCM, CLCP (808) 253-0232 www islandlegalnurse com

L EG A L W R I T

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The American Judicature Society’s Annual Sidebar Program

The American Judicature Society (“AJS”) invites summer associates and young lawyers to participate in their Annual Sidebar Prog ram on Tuesday, July 11, 2023, 4:00 to 6:00 p.m. at the Hawai‘i Supreme Court, Ali‘iolani Hale (second f loor courtroom), 417 South King Street The program offers a unique opportunity to observe a moderated panel discussion with some o f H a w a i ‘ i ’ s d i s t i n g u i s h e d j u d g e s, engage in small g roup discussions with these jurists, and socialize with them and each other during the reception that follows

The panel of distinguished judges include Hawai‘i Supreme Court Chief Justice Mark E Recktenwald, United States District Judge Jill A Otake, Hawai‘i Inter mediate Court of Appeals Chief Judge Lisa M Ginoza, First Circuit Court Chief Judge R Mark Browning, First Circuit Court Judge Gary W B Chang, and First Circuit District Court Judge Karin L Holma

Originally founded in 1913, the A m e r i c a n Ju d i c a t u r e S o c i e t y i s a n independent, non-partisan, membership organization that has worked to protect the integ rity and independence of the American justice system AJS continues in Hawai‘i as a diverse and broadly based g roup – including judges, lawyers, and members of the public – aiming to promote fair and impartial courts through research, publications, education, and advocacy for judicial refor m The work of AJS f o c u s e s p r i m a r i l y o n j u d i c i a l e t h i c s, judicial selection, access to justice, criminal justice refor m, diversity in the judiciary, and the jury system

For more infor mation, contact Susan Asato at susan ajs2020@gmail com