I hope this finds you well and happy today!

The legislature is already busy, although the session doesn’t start until the January 21st.

Today’s post is focused on the 800 pound gorilla standing in the center of the criminal justice system – OVERCRIMINALIZATION. Locking folks up for things that make us mad. Our facilities are full of these folks–more than 50%–who commit offenses that would be better addressed in community-based programs instead of criminal college. Overcriminalization. It is an addiction from which Hawai`i CAN recover. The treatment, however, takes courage and policymakers who have the backbone to admit the truth that the data show:

Hawaii’s Index Crime* rate decreased in 2012, down 2.4% from the rate reported for 2011, to reach a new record low level.

(Source: 2012 Attorney General’s report, Crime in Hawai`i)

What is both revealing and disturbing is that our incarcerated population has remained pretty stable at 6,000, despite this dramatic decrease in crime.

Wouldn’t it be better to directly address someone’s pathway to incarceration by funding community-based programs that directly address the issues that led to the person’s incarceration instead of sending him/her to criminal college?

We have to work hard to get our legislature to understand that over-sentencing and creating more crimes does not promote public safety; in fact, research has shown that overcriminalization has had the opposite effect!

Here’s some hopeful stuff that’s happening in Congress (by the right wing, no less!) as well as some interesting reports and testimony before Congress by the American Bar Association.

The Overcriminalization of America
How to reduce poverty and improve race relations by rethinking our justice system.
Charles Koch and Mark Holden, Politico Magazine, Jan. 7, 2015

“… According to Harvard sociologist Bruce Western: “Prison has become the new poverty trap. It has become a routine event for poor African-American men and their families, creating an enduring disadvantage at the very bottom of American society.”

“Reversing overcriminalization and mass incarceration will improve societal well-being in many respects, most notably by decreasing poverty. Today, approximately 50 million people (about 14 percent of the population) are at or below the U.S. poverty rate. Fixing our criminal system could reduce the overall poverty rate as much as 30 percent, dramatically improving the quality of life throughout society—especially for the disadvantaged.”

Butterfield takes helm of Congressional Black Caucus, promises focus on criminal justice reform
Renee Schoof, McClatchy Washington Bureau, Jan. 6, 2015

“…The Congressional Black Caucus also would work to try to change sentencing laws,     hold prosecutors to ethical standards, and ensure that defendants have competent lawyers, Butterfield added…”

House Judiciary Comm. Gets Broader Jurisdiction After Rule Change
Marcia Coyle, Legal Times, Jan. 6, 2015

“The House of Representatives late Tuesdaygave final approval to a rules change that gives the House Judiciary Committee jurisdiction over any bill proposing or modifying a new or existing criminal law or penalty.

“The rule change was backed by a diverse coalition of organizations, including the National Association of Criminal Defense Lawyers (NACDL), the U.S. Chamber Institute for Legal Reform, the Constitution Project, Heritage Action for America and the general counsel of Koch Industries. …

“A 2010 report*  by the NACDL and The Heritage Foundation found that legislation containing criminal law provisions is frequently introduced in the House, considered in other committees, reported to the full House, and even passed, without Judiciary Committee involvement. “This lack of Judiciary Committee participation contributes to the problem of overcriminalization,” the coalition said in its letter.”

How Congress is Eroding the Criminal Intent Requirement in Federal Law
The Heritage Foundation and the National Assn. of Criminal Defense Lawyers (NACDL)
Brian W. Walsh and Tiffany M. Joslyn, 64 pages

“A core principle of the American system of justice is that individuals should not be subjected to criminal prosecution and conviction unless they intentionally engage in inherently wrongful conduct or conduct that they know to be unlawful. Only in such circumstances is a person truly blameworthy and thus deserving of criminal punishment. This is not just a legal concept; it is the fundamental anchor of the criminal justice system. The Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) share a common concern that expansive and ill-considered criminalization has cast the nation’s criminal law enforcement adrift from this anchor. In the absence of a clearly articulated nexus between a person’s conduct and his mental culpability, criminal laws subject the innocent to unjust prosecution and punishment for honest mistakes or actions that they had no reason to know are illegal.”

Testimony Of William N. Shepherd, American Bar Assn.
Defining The Problem Of Over-Criminalization & Over-Federalization Committee on the Judiciary  – Task Force on Over-Criminalization

“Mass incarceration has come at great cost to taxpayers. State prisons hold the vast majority of prisoners, about 86.5% of United States prisoners. The average cost of incarcerating an individual in state prison for one year is $31,116. On average, states spend roughly two and a half times more per prisoner than per public school pupil. In fiscal year 2012, total state spending on corrections, including prisons as well as probation and parole, is estimated to total $53.3 billion. At the federal level, DOJ’s Bureau of Prisons had a fiscal year 2012 operating budget of about $6.6 billion—the second largest budget within DOJ. Aside from the substantial financial burdens, there is also the damage done to the lives of those incarcerated and their families. Incarceration has been proven to have a negative impact on future income, employment prospect, and family involvement. Reducing over-criminalization saves taxpayer money and improves the lives of all citizens.

Democratic Views On Criminal Justice Reforms Raised Before The Over Criminalization Task Force & The Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
Submitted by U.S. Representative Robert C. “Bobby” Scott, ranking member, Subcommittee on Crime, Terrorism, Homeland Security, And Investigations & Over-Criminalization Task Force December 16, 2014

Hawai`i section: page 63:

“Hawaii’s prison and jail populations grew 18 percent between FY2000 and FY2010. Due to a lack of space in its correctional facilities, Hawaii contracted with mainland facilities to house approximately one-third of its prisoners at a tremendous financial cost. Between FY2006 and

“FY2011, the state’s pretrial population increased partly due to delays in Hawaii’s pretrial decision-making process. In addition, victim services were not sufficient to ensure that individuals responsible for making restitution payments were being held accountable.

“The solutions included:

  • providing judges with the discretion to depart from a mandatory minimum sentences of 5- and 10-years if the judge finds it “appropriate to the defendant’s particular offenses and underlying circumstances”
  • requiring timely risk assessments of pretrial defendants to lessen costly delays in the pretrial process and detention of only the highest risk defendants
  • focusing probation and parole resources on individuals most likely to reoffend and implementing alternatives for lower-risk individuals
  • increasing the amount individuals pay toward victim restitution and ensuring institutions have the mechanisms in place to collect, track, and disperse these funds effectively
  • instituting Hawaii’s Opportunity Probation with Enforcement (HOPE), which program targeted offenders who were at high risk of failure. It provided for swift, certain, and short jail sanctions for every violation, such as failed drug tests or skipped meetings with their supervising officer. The program also required frequent, random drug testing, and imposes drug treatment if an offender tests positive or if an offender requests treatment. The HOPE program has reduced re-arrest rates, drug use, and probation revocations, which have reduced Hawaii’s overall level of incarceration. In conjunction with other reforms, these practices are estimated to reduce bed demand in correctional facilities by more than 1,000 beds, saving the state $130 million over 6 years.

“In FY2013, the state reinvested $3.4 million to: expand the availability of community-based treatment programs; hire additional corrections staff to complete risk and needs assessments and support reentry efforts; and reestablish the Department of Public Safety’s research and planning office. Hawaii is receiving ongoing implementation guidance from the CSG Justice Center.”

Hawai`i needs legislators who understand the data, who seek out credible community resources, and actually WANT to work to reduce the incarcerated population. THAT IS OUR JOB AS COMMUNITY JUSTICE ADVOCATES. We need to help them understand that creating more and more laws that criminalize behavior cause harm to families and communities and the data actually show that they increase crime.


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