Next session can fine-tune drug penalty, governor says

By Kevin Dayton
Advertiser Capitol Bureau Chief

Gov. Ben Cayetano says he understands the concerns about a bill that would require drug treatment instead of prison for drug offenders, but said lawmakers can reconsider the issue next year if there are any "loopholes" in the measure.

In passing the bill, lawmakers pitched it as a measure to divert "first-time nonviolent" drug offenders from prison and into drug treatment programs.

But critics have said that under many circumstances, it would simply require probation and drug treatment for people with criminal records, even if those people were caught with large quantities of drugs.

Depending on how judges interpret the new act, it may also apply to people with violent criminal histories so long as they have no previous drug convictions and no violent felony convictions in the previous five years, critics said.

Cayetano said the administration sees the measure differently. "That's not the way we interpret it, but if that's a loophole there, than we can address it in the next session — and we should address it," Cayetano said yesterday.

The governor is expected to sign the act into law. It has had the support of Health Director Bruce Anderson and Public Safety Director Ted Sakai.

Last year, Cayetano proposed a bill that would eliminate mandatory minimum prison sentences for people convicted of second-degree or third-degree promotion of a dangerous drug, which includes individuals convicted of possession or distribution of 1 ounce or less of crystal methamphetamine.

Under the administration's measure, people convicted of those crimes would be sentenced to drug treatment instead of prison.

House Public Safety and Military Affairs Chairman Nestor Garcia said lawmakers expanded the scope of the measure well beyond the parameters of what Cayetano had proposed.

As approved, the bill would require judges to sentence people convicted of drug possession to probation and drug treatment. This would apply to people with criminal records who are "non-violent," so long as they were never convicted of a previous drug offense.

It would be 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.

Under the bill, people cannot be considered "non-violent" if they were convicted of a violent felony in the past five years, but the judges would decide who else might be eligible.

Garcia, D-37th (Waipahu, Crestview), also said he does not see a "loophole" in the measure.

"I just see it as being smart on crime and trying to deal with a situation that is getting out of control, which is prison overcrowding," he said. "Heretofore, by locking people up it wasn't solving anything, and most of these people are going to be put out into the community eventually with little or no treatment, so I figured this was the way to deal with it most effectively and efficiently."

Honolulu Prosecutor Peter Carlisle and his predecessor, Keith Kaneshiro, now the state director of public safety, have also questioned how effective the bill will be without adequate allocations for drug treatment for people sentenced to probation under the new law.

Although the Legislature did make $2.2 million available for drug treatment for people on probation, parole or awaiting trial, that is not expected to be nearly enough money to provide treatment to all who need it.

The bill does not specifically say what happens when judges are required to sentence people to treatment, but no treatment slots are available.

Garcia said the bill will give treatment advocates a chance to prove that treatment works, which will help to free up more money for treatment programs in the future.

Reach Kevin Dayton at kdayton@honoluluadvertiser.com or 525-8070.