By Lynda Arakawa
Advertiser Capitol Bureau
When former civil rights lawyer Dan Foley was appointed to the state court of appeals, there was considerable speculation that the new jurist could prove controversial.
The second decision written by Foley since he joined the appellate court that the Hawaii Paroling Authority cannot order an inmate to serve his full prison term without parole has sparked a vigorous debate about crime and punishment in Hawaii.
|Dan Foley's decision has sparked a debate.
Advertiser library photo Aug. 2, 1996
State attorneys contested the ruling, and the Hawaii Supreme Court is reviewing the decision.
Deputy Attorney General Lisa Itomura said the law does not prevent the Hawaii Paroling Authority from saying the prisoner must serve the full term, and paroling officials believe the appeals court went too far.
"I think the (appellate) court is going into an area where they dont belong under the present system," said Al Beaver, Hawaii Paroling Authority chairman.
But others believe Foley was doing his job and dismiss any suggestion that he was ruling on the basis of a "liberal" philosophy.
"One judge cannot determine the ruling of the entire court," state Public Defender Jack Tonaki said. "This is no indication of liberal philosophy or conservative philosophy. He was following the law, the statutes that are in the books."
Representing gay couples
Foley, 53, perhaps best known for representing gay couples in Hawaiis landmark same-sex marriage case, was appointed by Gov. Ben Cayetano to a 10-year term on the Hawaii Intermediate Court of Appeals July 27.
The appointment was criticized by some Hawaii residents and some senators, who said Foleys longtime and prominent role as a civil rights advocate would prevent him from being an unbiased judge. The senators approved his appointment 14-8.
Foley was sworn in Oct. 2 as one of four appeals court judges, who sit on three-member panels in deciding appeals from the circuit and district courts.
In Foleys written opinion on Nov. 22, signed by chief appeals Judge James Burns and associate appeals Judge John Lim, the appeals court held that the paroling authority cannot set an inmates minimum prison term equal to his or her maximum sentence.
Under Hawaii law, the judge sets a maximum amount of time a convict can be incarcerated. The parole board then sets the minimum prison term except in such cases as a defendant being sentenced to a life term without parole the prisoner must serve before he is eligible for release on parole.
The appeals courts decision was in response to an appeal by Gregory Williamson, an inmate who was sentenced to a maximum five-year prison term for second-degree assault and second-degree burglary convictions. The paroling authority decided Williamson should serve all five years in prison.
Foleys opinion states, "The circuit court should have ordered the (parole board) to reduce Williamsons minimum terms of imprisonment to make Williamson eligible for a parole hearing." The opinion also said the parole board must reduce the inmates minimum prison term to "allow a reasonable period of time" between his minimum and maximum terms.
Some legal observers believe Foleys opinion means the paroling authority would have to reduce similar terms for other inmates and opens the door to more challenges from inmates. According to Beaver, the parole board makes the minimum term the same as the maximum term in about one in 50 cases.
Decisions by the appeals court can be appealed to the Hawaii Supreme Court, but the high court is not obligated to hear them.
The high court did not say why it decided to review the opinion, but it earlier rendered an unpublished decision Nov. 6 that ruled the opposite way in a similar case. In that order, which was only applicable to that particular case, the high court said state law "does not entitle any convicted person to have his minimum term of imprisonment set for a shorter period of time than the maximum possible sentence."
As is the usual practice with judges, Foley declined to comment on the case.
In explaining why she asked the high court to review the appeals court decision, Itomura in a recent interview said theres "certainly nothing in the statutes specifically that says that the (Hawaii Paroling Authority) cannot set minimum terms the same length as maximum terms."
Beaver said the amount of time an inmate serves in prison is entirely left to the discretion of the parole board. He said that even when an inmate has been ordered to serve the maximum term, the parole board can still grant a parole hearing and that minimum prison terms can and "quite often" are reduced when warranted.
Tonaki said while the opinion orders the parole board to give inmates a chance at a "meaningful" parole, it doesnt address whether the board must grant them parole.
Tonaki also said the opinion clears the way for prisoners to challenge the parole boards actions in court. He also said unless the Supreme Court overturns the opinion, the parole board would have to go back and adjust the minimum terms of any inmate whose minimum term equals the maximum sentence.
Beaver said the paroling board sets the minimum terms the same as the judges maximum terms for crimes that are "very serious, very awful" or for career criminals.
"You gotta remember now, the mission of this board is to protect the community and that is what Im going to do," he said.
Beaver said even if the Supreme Court upholds the appeals court ruling, the high court probably wont dictate to the board the exact length of the minimum term. That may leave the board with the option of reducing the minimum slightly. "We can go back and say OK, less one day," he said. "Well parole you for one day."
Tonaki said thats not a correct interpretation of the law and that parole would probably be handled on a case-by-case basis.
The state high court has not indicated when it will rule.
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