Drug-case alternative to prison criticized

By Kevin Dayton and Lynda Arakawa
Advertiser Capitol Bureau

A proposed new law to send first-time, nonviolent drug offenders to treatment instead of prison may offer a legal loophole for some people with long criminal records, critics of the measure said.

City Prosecutor Peter Carlisle questions probation qualifications of the proposed new law. Advertiser library photo

Kat Brady, coordinator of a group called the Community Alliance on Prisons, said it only makes sense to send people addicted to drugs into treatment programs instead of prison. A shift in how the state handles drug offenders would have a dramatic effect on female inmates — many of whom are in prison for drug offenses — and their families, she said.

But City Prosecutor Peter Carlisle and former City Prosecutor Keith Kaneshiro said the public may be surprised to learn what the bill actually does. In many circumstances the measure would require probation for people with criminal records, even if those people are caught with large quantities of drugs.

"The sales pitch is one thing, the product is another thing," Carlisle said. "I think that the way that this was sold was the idea that this is (intended for) a first-time offender with no criminal history."

Instead, Carlisle said, someone with a felony history — possibly even a violent felony history — could qualify for probation provided they had never been arrested for a drug offense before.

There also is a shortage of money for drug treatment programs, and the bill provides no new money for treatment.

The measure also does not say what happens when a drug offender is sentenced to probation and no drug treatment slots are available, Carlisle said.

Support for the bill

State Health Director Bruce Anderson and Public Safety Director Ted Sakai support the bill, a strong hint that Gov. Ben Cayetano is likely to sign it into law. Somewhat similar measures were approved through voter initiatives in California and Arizona.

Many in the public may not understand what the Legislature meant by the phrase "first-time non-violent" drug offender. The words "first-time" refer only to the drug offense: The proposed new law applies to people with criminal records who are "non-violent" and have never been convicted of a drug offense before.

The bill leaves it up to state judges to determine which convicts are considered nonviolent after assessing the prisoner's criminal history, the circumstances of the drug offense and any other relevant factors. People cannot be deemed nonviolent if they had a violent felony conviction in the past five years, but it is up to the judges to decide who else might be eligible.

Carlisle predicted defense lawyers will argue that any first-time drug offender who was not convicted of a violent crime in the past five years qualifies as nonviolent, and therefore must be given probation. If a judge disagrees, there will be appeals, he said.

Senate Judiciary Chairman Brian Kanno and House Public Safety Chairman Nestor Garcia, who led discussions on the bill, said they wanted to open up the pool of offenders who could qualify for treatment. Ideally, lawmakers wanted to help people who had just begun to use drugs, said Kanno, D-20th ('Ewa Beach, Makakilo, Kapolei). But that would mean the number of people affected would be small, he said.

"We looked at how do we implement the spirit of that law in a way that is workable and it helps people," he said. "To think that that's the only group we'd like to help, I think, is being shortsighted. We want to recognize the reality that people who may be picked up on a drug charge now for the first time may have been doing drugs for a year or two or three and maybe could have been arrested for, say, shoplifting or another charge."

Garcia and Kanno also said judges will have discretion over whether offenders will be sent to prison or released for treatment, and said offenders will be jailed if treatment is not available for them.

Brady, who has lobbied for such a bill for years, acknowledged there is not enough money to cover everyone who qualifies for treatment but said the state needed to start somewhere.

"If it just covers 100 people even, we have started the process, and that, to me, is the most crucial thing."

Brady also said she trusts judges to make the right decision about whether an offender should be considered nonviolent and released to treatment.

Money problems

Lawmakers offered no new money for drug treatment programs in the bill but noted in a report attached to the measure they had allocated $2.2 million last year for drug treatment programs for people awaiting trial, on probation or on parole.

That money seems unlikely to make much of a dent in the problem. Parole officials estimated that 80 percent of the 2,500 convicts on parole need drug treatment but only about 20 percent actually get it.

Urinalysis testing suggests that of the 15,000 people on probation, one-third of them need drug treatment, said Ronald Hajime, probation administrator. But Hajime said "far less" than that actually receive treatment today.

Anderson said the $2.2 million would cover about 200 to 250 people. He said the costs of treatment would vary with each case but that health officials estimated spending about $5,000 to $10,000 a person for services ranging from short-term residential stays to counseling. The average amount of treatment is three to four months, but treatment could be extended to more than a year, Anderson said.

Garcia, D-37th (Waipahu, Crestview), said he hopes the Legislature will appropriate more money for the program later.

"Without the money, the program really doesn't work," he said. "But there's only so much money to go around. ... Let's start with something we can work with. Let's start small and work it up and prove ourselves to the Legislature."

Kanno said the measure also calls for criminals who can afford treatment to pay for it rather than have the state foot the bill. That would help ease the state's burden, he said.

Gradation of offenses

Another issue is the kinds of drug offenses that would be eligible for probation under the bill. Language that was inserted into the bill late in the process included what are known as Class A and Class B drug felonies, provided there was no drug distribution involved.

Those are the most serious felonies, and including them means the bill requires that even people caught with large quantities of crystal methamphetamine or other dangerous drugs would be sentenced to probation and treatment if a judge finds they are "first-time non-violent" offenders.

There were no public hearings to discuss including Class A and Class B felonies, and Carlisle said those provisions may present problems for law enforcement authorities.

Police at times catch suspected dealers with large quantities of drugs but cannot prove those people are selling, Carlisle said. Suspects in those kinds of cases would be subject to up to 20 years in prison today, but some would automatically draw probation and drug treatment under the proposed new law, he said.

Kaneshiro, who was city prosecutor from 1989 to 1996, said the bill isn't needed to deal with true first-time offenders who have been convicted of drug possession and nothing else. In the vast majority of cases, those people are already sentenced to probation, he said.

The exception is crystal methamphetamine, which carries mandatory minimum sentences for first-time convictions for possession. The bill would substitute probation and treatment for the mandatory jail terms for convicts who are deemed to be first-time, non-violent offenders.

Redundancy for judges

Deputy Prosecutor Lori Nishimura said the state never had enough prison space to lock up petty drug offenders on their first conviction. The law already grants judges the discretion to divert most drug offenders into treatment programs, and judges generally chose that approach for first time offenders.

"That's why this bill was so amazing to us," she said. "The real problem seems to be getting adequate treatment programs and funding and bed space, and it seemed somehow that people supporting this program were implying that this bill would solve those problems. Well, simple funding would have done it."