Posted on: Sunday, September 18, 2005
COMMENTARY
Top law enforcers a threat to your liberties
By Robert M. Rees
It seems the environment for the Bill of Rights is at its least-tolerant level of my nearly 50 years of activism.
Both in the United States and Britain, we have allowed the specter of terrorism to alter our basic values. The portents for civil liberties in Hawai'i, normally one of the nation's leaders in the protection of civil liberties, are ominous.
Hawai'i has been afflicted by the same syndrome that is altering the national view: the tendency of law enforcement to forgo its duty to protect the Bill of Rights and instead to proselytize that civil liberties are obstacles to our way of life.
Just as the U.S. attorney general's office has seized on terrorism as a rationale for curtailing our Bill of Rights, so too has the Law Enforcement Coalition in Hawai'i — a lobbying confederation comprised of Atty. Gen. Mark Bennett, Honolulu prosecutor Peter Carlisle, other county prosecutors and U.S. Attorney Ed Kubo — seized on drugs and on what Carlisle calls "Hawai'i's Ice Age" to sell its view.
My reading: Their message is that civil liberties are downright dangerous.
First, it appears that law enforcement in Hawai'i has shamelessly exaggerated the threat. Kubo, for example, told a House-Senate Task Force that "Hawai'i has the worst crystal methamphetamine problem in the nation."
When asked about this and his estimate of 120,000 users — more than 10 percent of the population — Kubo said his number was a "ballpark estimate."
(Federal drug czar John Walters, citing state — not federal — statistics, recently said that Hawai'i has "the highest population of ice users in the nation.")
Still, the most recent survey (November 2003) of Hawai'i's schools from the state Department of Health indicated usage of ice at the time was declining. The survey showed that 0.8 percent of Hawai'i's high school seniors had used crystal methamphetamine at least once in the previous 30 days, down from 5.5 percent in 1989 and down from 1.8 percent in 2002.
For his part, Carlisle has told our state legislators that dangerous users or "tweekers" high on crystal meth now permeate Hawai'i. "Treatment," warned Carlisle, "is not the answer." The answer is to give law enforcement the power it needs.
Hawai'i's Law Enforcement Coalition appears to see Hawai'i's Bill of Rights, and especially those sections where protections are more expansive than those afforded by the U.S. Constitution, as the primary obstacle to an effective war on drugs.
A CREDIBILITY PROBLEM
For example, in August 2003, Kubo and Bennett maintained to legislators that the absence of "walk-and-talk" laws in Hawai'i was the culprit.
Walk-and-talk laws, permissible on the federal level, allow for "consensual encounters," the helter-skelter questioning of people without cause. The Hawai'i Supreme Court overturned the state version in 1992 on the grounds that "We cannot allow the police to randomly encounter individuals without probable cause ... "
Maintained Kubo of this decision of 1992: "From that year on, drug organizations have been aware that Hawai'i has no effective defense."
Kubo neglected to note that the U.S. attorney and other federal authorities remained perfectly free to conduct walk-and-talk encounters at airports.
During this year's session of the Legislature, Hawai'i's Law Enforcement Coalition again attempted but failed to pass walk-and-talk amendments. The coalition also failed to get increased electronic surveillance powers, a "Victims' Rights" bill designed to curtail the rights of the accused, and allowance for impeachment of a defendant's testimony if his or her rap sheet indicated a previous conviction for any crime involving dishonesty.
Most telling of all, the coalition proposed this year that Hawai'i's Constitution itself be amended to provide for easier amendment.
RULE BY A HANDFUL?
Under the proposal, which did not pass, a mere majority vote of the handful of voters voting on a particular ballot question would be able to amend the Bill of Rights. Currently, the state Constitution requires amendments to pass not just by a majority of those who vote on the particular ballot question or amendment but also by a majority of all those who cast ballots in a general election — including those who cast blank or otherwise invalid ballots.
Some members of Hawai'i's Law Enforcement Coalition have developed the view that only they, as philosopher kings of law and order, are equipped to make decisions about justice.
The coalition seems to regard the rest of us, from citizens to judges to legislators, as ignorant and perhaps even morally slack. For example, the attorney general, along with the Law Enforcement Coalition, this year published a letter to the editor of The Honolulu Advertiser that suggested legislative opposition to proposed changes in illegal compensation statutes might be based on a preference for bribes.
The chairwoman of the House Judiciary Committee, Sylvia Luke, properly shot back with an unflattering characterization: "This is another example of sensationalizing an issue, playing to the media with catch phrases, without the justification to back their claims."
On a larger level, the attorney general's office has continued its practice of simply ignoring the will and practices of Hawai'i when it comes to participation in U.S. Supreme Court cases with friend-of-the-court briefs.
Bennett, shortly after his appointment in 2003, was asked about an episode in 1992 when Hawai'i joined Alabama in arguing that the mere beating of a prison inmate does not constitute cruel and unusual punishment. Hawai'i's financial concerns outweigh the Bill of Rights, proffered the Aloha State.
Responded a furious Su-preme Court, "Self-interested concern has no appropriate role in interpreting the contours of a substantive constitutional right."
When Bennett was told of this, he responded there would be no such misrepresentation of the will of the Aloha State during his tenure. Yet only months later the state attorney general's office joined other states in petitioning the U.S. Supreme Court to overrule the 9th U.S. Circuit Court of Appeals decision in Newdow v. Elk Grove School District. Elk Grove was a First Amendment decision that overturned the requirement that schoolteachers lead their classes in the Pledge of Allegiance.
STATE LAW IGNORED
Hawai'i joined in a petition for a writ of certiorari asking the Supreme Court to restore the pledge as a mandate for teachers. Not mentioned was that Hawai'i's state law and policy call for purely voluntary participation by teachers and students.
When asked about the apparent discrepancy between his views and those of Hawai'i's citizens, Bennett responded that such a decision is within the province of his office, and that anyway, he'd bet the people were behind him.
More recently, in a case involving Title IX, U.S. Rep. Patsy Mink's monumental act of 1972 forbidding sex discrimination by academic institutions receiving federal funds, Hawai'i has joined Alabama and several other states in arguing that whistleblowers are not protected by the federal law from state retaliation.
Also this year, the attorney general's office has weighed in with support for the states' right proposition that special-needs children, and not the state, bear the burden of proof in hearings under the Individuals with Disabilities Education Act. The brief is another of many developed by Hawai'i to insulate it from its responsibilities under federal law to educate all its children.
This same attitude appears to dominate Hawai'i's response to criticism by a special federal magistrate that Hawai'i has again been negligent when it comes to caring for the mentally ill. So far, the response of Hawai'i has been that this is an intrusion into the affairs of the Aloha State.
Fortunately for Hawai'i, there has been legislative resistance to many of the changes proposed by the Hawai'i Law Enforcement Coalition. The Legislature has defeated the bulk of the coalition's trial balloons and proposed packages.
Our law enforcement coalition has forgotten that it is there to protect our civil liberties, not to dismantle them. After all, any shortsighted fool can tear apart constitutional protections. It takes courageous and often anti-populist leadership to preserve them.
Robert M. Rees, a frequent contributor to The Honolulu Advertiser, will receive the Allan Saunders award for lifetime achievement in furthering civil liberties at a Sept. 25 dinner sponsored by the American Civil Liberties Union of Hawai'i. For more information, call 522-5900.
