Print article »

Posted on: Sunday, May 18, 2008

Jail-free sentences 'not fair' to families

Advertiser review finds prosecutions rare even when pedestrian died

View reader comments and add your own »

By ROB PEREZ
Advertiser Staff Writer

Clutching a framed portrait of his dead wife, Wendell Chun urged the court to put her killer behind bars. He said he didn't want to see another negligent driver walk away from a pedestrian fatality without getting any jail time, especially not this driver.

Jeung Ja Kwak had seven prior traffic offenses, including going 73 mph in a 55 mph zone, before she got behind the wheel of her sport utility vehicle on a sunny morning in February 2007 and struck Lois Jeanine Reed in a crosswalk.

Though it was an accident, Chun said Kwak deserved jail time for being so careless on the road. Prosecutors recommended six months. But when Kwak was sentenced in March for pleading no contest to third-degree negligent homicide, a misdemeanor, she had her license taken away and was given other terms — but no jail. The judge agreed with Kwak's lawyer that incarceration wasn't warranted.

"This gal didn't even get one day of prison time, not even one," Chun said afterward, shaking his head in disgust. "It's unbelievable. I can't see how the legal system can accept something like this. I can't see how the community can accept something like this."

Kwak's sentence wasn't unusual.

An Advertiser review of Hawai'i pedestrian-fatality cases since 2003 found that roughly half the drivers sentenced in such cases received no jail time.

And for those who pleaded guilty or no contest to the same misdemeanor charge as Kwak, most not only received jail-free sentences but also were given the opportunity by the court to have the offense wiped from their records, as if the accidents officially never happened. The drivers simply had to stay out of trouble for a year.

Families of the victims say the light punishments help explain why Hawai'i continues to be one of the most dangerous states in the country for pedestrians, especially elderly ones.

The message simply is not getting out that driving negligently and killing a pedestrian will result in a stiff sentence, the families say.

"You can go out and kill somebody and only get a slap on the wrist," Chun told the judge before Kwak was sentenced. "Does it mean that life is really that cheap?"

While The Advertiser reviewed more than 140 cases from 2003 through 2007, many of the 2007 cases are still pending, so the analysis focused mostly on the first four years.

The newspaper found that the majority of the nearly 120 fatalities during that four-year period did not result in prosecutions.

In many instances, prosecutors determined the evidence was insufficient to prove a crime. In other cases, police concluded that the pedestrians were at fault. In still others, authorities determined the accidents were just that — accidents, with no criminal component.

Only 33 of the 116 adult drivers were sentenced for crimes connected to a pedestrian's death. Of those, 16 received jail time, averaging just over four years, according to the Advertiser analysis. Those cases typically involved drivers guilty of reckless or grossly negligent behavior, such as drunk driving or excessive speeding, or fleeing the scene without rendering aid.

In the 17 cases that did not involve imprisonment, the drivers usually got a combination of terms, including probation, fines, license suspensions, mandatory community service or orders to pay restitution to the victim's family.

The drivers in those cases typically argued that the crashes were pure accidents. The drivers usually had no prior criminal record. They often apologized to the victim's family in court, asked for forgiveness and acknowledged that they would have to live the rest of their lives knowing they caused someone else's death.

Yet those are the cases that have generated the most controversy. Grieving families have been stung by the lack of jail time and the opportunity many drivers were given to wipe their records clean, even as the victims' survivors struggled with the permanence of losing a loved one.

To those families, the scales of justice have tilted decidedly in favor of the defendants.

"The victims get less consideration — like it's nothing," said Hilda Inouye, whose 83-year-old husband, Hiroshi, was killed by a negligent driver along Diamond Head Road in 2004. "What can we do? That's how judges issue sentences. ... It seems to be lopsided."

Ann Lesley Cherry, the driver in the Inouye case, received no jail and the opportunity to have the offense removed. She told police she was trying to eat a Fig Newton and struggling with the wrapper when her car drifted to the side of the road, striking the victim. Cherry could not be reached for comment.

Like Kwak, Cherry was prosecuted for negligent homicide in the third degree, the least serious of the three negligent homicide charges. The court granted her a deferred-acceptance of no contest plea, enabling the expungement possibility if she stayed trouble-free for a year. In addition, the court sentenced her to 200 hours of community service, payment of court fees and a mandatory driver-improvement program.

Cherry's sentence was not unlike most of the other drivers who pleaded guilty or no contest to the misdemeanor negligent homicide charge, which carries a maximum sentence of one year in jail. Of the 16 in that situation, 14 received no jail time and most also were granted plea-deferrals, according to the newspaper's analysis. Those findings have some legislators concerned.

"When we see that three out of four or five out of every six times, drivers are walking away with a slap on the wrist ... you wonder whether justice is truly being served," said Rep. Blake Oshiro, vice chairman of the House's Judiciary committee.

'simple negligence'

Dealing with misdemeanor negligent homicide cases often is controversial because the threshold for defining the charge is relatively low, making the line between criminal offense and pure accident murky and imprecise, particularly to the families on both sides.

Under Hawai'i law, drivers are guilty if the death results from conduct deemed "simple negligence." A driver who briefly takes his eyes from the road to adjust a radio or fiddle with food, for instance, could face prosecution if, in those brief moments, the car strikes and fatally injures a pedestrian. In most other states, simple negligence in such cases would be a civil matter, not a criminal one.

"That is extremely unusual," Natman Schaye, an Arizona criminal defense lawyer who has studied homicide statutes nationally, said of Hawai'i's law.

In other states, prosecutors typically have to show the driver was speeding excessively, drunk or engaged in other extreme behavior to prove a crime, Schaye said.

Hawai'i legislators added the "simple negligence" threshold to statutes in the early 1970s to help combat what was even then a serious pedestrian-safety problem.

Reflecting the murky nature of some of the misdemeanor cases, prosecutors don't always seek jail sentences. When making such decisions, they consider a variety of factors, including circumstances of the case, the driver's background and the desire of the victim's family.

After William Kobashigawa, a World War II veteran of the famed 442nd Regimental Combat Team, was struck and killed in a crosswalk in December 2005, the family told prosecutors that it didn't favor jail time for the driver, who pleaded no contest to third-degree negligent homicide.

Kobashigawa was a forgiving person and wouldn't have wanted the driver jailed, two of his daughters said. Joseph M.K. Silva, the driver, was placed on probation for a year and ordered to pay court fees. He could not be reached for comment.

Although the Kobashigawa family was satisfied with the sentence, Gail Pei, one of the daughters, said punishments in general need to be tougher to combat the pedestrian-safety problem. "The sentences are very light," she said. "They don't send a serious enough message."

The Advertiser's review of pedestrian fatalities comes as Hawai'i actually is seeing a lull in such cases. So far this year, only seven pedestrian deaths have been recorded, compared with 15 in the same period last year.

But Hawai'i has had lulls before — only to be followed by a spate of accidents. From 2000 through 2006, the most recent year for which state-by-state rankings are available, Hawai'i has been among the 11 states with the highest pedestrian-fatality rates per capita. Among pedestrians 65 and older, Hawai'i has been the most dangerous state in five of those seven years.

respect for the dead

To get serious about solving the problem, police have to step up enforcement and the courts have to increase sentences not only to prompt drivers to change their behavior but to show more fairness and respect for the dead, family members say.

The case of Chun's late wife is considered by some as a prime example of the sentencing issue. Reed, 66, was fatally injured in February 2007 as she walked across a Beretania Street crosswalk in broad daylight, with a green light and pedestrian signal giving her the right of way.

Kwak, then 63, was turning left from Pi'ikoi Street onto Beretania when she struck the retired preschool teacher about 9:30 a.m., a time when the intersection usually is busy with traffic. The weather that morning was clear and sunny.

Kwak told police she didn't see the victim, who was about 5 feet 7, wearing a white blouse, carrying an umbrella and approaching the middle of the street.

Deputy Prosecutor Deirdre Lok cited Kwak's spotty driving record to argue that the defendant should spend time behind bars.

More than a year before the crash, Kwak had been ticketed for making an illegal right turn against a red light, state records show. A year before that, she was cited for making a U-turn on busy Kapi'olani Boulevard. A few weeks before that, she was fined for going 73 mph in a 55-mph zone. In all, Kwak had seven traffic offenses dating to the early '90s.

Those seven offenses and the Reed fatality demonstrated a pattern of carelessness that justified six months incarceration, Lok argued at the sentencing hearing. She also recommended that Kwak be placed on probation for a year, perform 100 hours of community service, pay restitution of $9,424 and have her license revoked for a year.

Chun likewise implored Judge Lono Lee to send Kwak to jail, saying Hawai'i courts have been too lenient with negligent drivers who have killed pedestrians.

But Kwak, who overcame a background of severe poverty to raise her family, apologized for the accident, said she was devastated by it and pleaded for leniency.

"I have so much pain in my heart," she told Lee through an interpreter, muffling sobs as she spoke. "Please forgive me and give me one more chance."

Although the judge spared Kwak any jail time, he accepted the prosecutor's other recommendations and also denied the defendant's request for a deferred-acceptance plea.

Before issuing the sentence, Lee, as he has done in other traffic-fatality cases, told Chun that the court didn't take its sentencing responsibility lightly. But just as he has done in the other cases, Lee acknowledged that the victim's family probably wouldn't be satisfied with the terms.

Rachelle Reed, the victim's daughter, wasn't. "I was shocked (by the no jail)," she said. "It's such a tragedy on so many levels. It's like going through the whole thing again, but now you have to deal with the grieving and an injustice."

While judges typically refrain from discussing specific cases, none responded to an Advertiser request relayed through a Judiciary spokeswoman for general comments about sentencing issues.

But criminal defense attorneys said jurists have to consider the entire body of evidence in handing down sentences, including whether the driver has a prior criminal record.

Jack Tonaki, the state's public defender, said judges have an especially tough task in cases in which the accident happens because the driver was briefly distracted or inattentive.

Even prosecutors acknowledged the difficulty in prosecuting such "neg 3" cases, noting that the families of both the victim and driver usually are traumatized by the tragedy.

"The neg 3s are the most heart-wrenching," said Lynne Goto Uyema, deputy prosecuting attorney in charge of screening cases. "You've got two parties who are truly heartbroken."

Attorneys who handle such cases say the drivers frequently are law-abiding, decent, caring people. "Often times, you have normal people with no bad records who just make a terrible mistake," Tonaki said. "It only takes a split second."

Sam King Jr., the attorney who represented Kwak in the Reed case, said these type of cases are "the toughest you'll ever have."

King told the court at Kwak's sentencing hearing that his client was a terrific person who since the incident has suffered physically and emotionally because she feels so badly for the victim's family.

"There's no explanation for something like this happening," King said. "It's just a mystery of life." He urged the judge not to imprison his client for something that was unintentional and didn't involve speeding or drinking.

"It doesn't make sense to me to even consider a jail sentence because we're talking about an accident," he said. But Chun and Lok said the defendant had no excuse for failing to see Reed. If Kwak had been paying attention to her driving, Chun said, his wife would still be alive. As it is, Chun said, he is suffering tremendously without her.

"I feel cheated out of living a long life with her," Chun said. "In my eyes, she was an angel."

deciding on jail time

When deciding if jail is warranted, judges typically consider whether the drivers would have difficulty paying restitution if they lost their jobs due to a lengthy incarceration, Tonaki said.

"Employment is a huge factor," he said. "All of these victims' (families) want to be made whole financially. ... If the incident is one of simple negligence, it becomes difficult for judges to throw the person in jail for a considerable amount of time."

Drivers convicted of more serious charges, usually involving alcohol or drugs or fleeing the accident scene, received months or years behind bars, according to the Advertiser's review of court cases.

Andres Paredes, for instance, received the harshest sentence — 20 years imprisonment — after he pleaded guilty to manslaughter in the death of Barbara Gallicchio in March 2004. Paredes, the only driver convicted of pedestrian manslaughter over the past five years, admitted being high on crystal meth and dozing at the wheel when he struck Gallicchio, 76, as she walked along Diamond Head Road.

But even when the sentences included jail time, some of the victims' relatives were unsatisfied.

"There needs to be harsher penalties," said Susan Sheldon, whose mother, Betty Santiago, 86, was in a Nimitz Highway crosswalk when she was struck and killed by a hit-and-run driver in 2006. "If you put people in prison and take away their vehicles, after (the cases are publicized) one, two or three times, the public will realize they've got to watch out for other people on the roads. If you hurt the drivers where it hurts the most, people will learn."

The driver who hit Santiago, Jatios Jatios, turned himself into police two days later and eventually pleaded guilty to second-degree negligent homicide and failure to render aid in cases involving death or serious bodily injury, both felonies. Although prosecutors sought a 10-year prison term, Jatios was sentenced to a year in prison, five years probation, had his driver's license revoked for five years and was ordered to pay restitution of $8,432.

But to Santiago's family, that wasn't enough. When Jatios is released, Sheldon said, "he can do as he pleases," while her mother is gone forever and the family still struggles with her loss. "It's not fair," Sheldon said.

Prosecutor Peter Carlisle said the issue of no or little jail time in misdemeanor homicide cases is similar to what used to happen at the felony level. In the past, someone could act recklessly and kill another person and the chances of getting substantial jail time were not high, he said. "That's changed dramatically now."

Carlisle said he believes that trend, which took years to surface at the felony level, should be showing up in misdemeanor cases. "Is it something that's overdue?" Carlisle asked. "Probably."

When a driver has a detailed history of traffic infractions and causes a pedestrian's death, "there should be more severe sanctions," he said.

But when asked whether a law should be passed to mandate minimum jail terms, as some victims' relatives have recommended, Carlisle urged caution.

There are circumstances in which mandatory jail would be appropriate, but officials must be careful in crafting such a law because of the possible unintended consequences, Carlisle said. If defendants know they face mandatory jail time, for example, they might be more reluctant to reach plea agreements, requiring more trials to be held, he said.

Chun, however, said something must be done so the courts will do more to help resolve Hawai'i's pedestrian-safety problem.

"Please start taking pedestrian deaths and all deaths more seriously," he told Judge Lee at the sentencing hearing for his wife's killer. "This needless carnage on the roads has to stop."

Reach Rob Perez at rperez@honoluluadvertiser.com or 525-8054.