Posted on: Tuesday, May 20, 2008
Jail cell may be required stop for negligent drivers
Legislators to consider mandatory sentences in pedestrian deaths
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The House next year plans to consider whether imposing mandatory minimum jail terms for drivers guilty of negligently killing pedestrians will help reduce what has been a longstanding safety problem on Hawai'i's roadways.
The two leaders of the House Judiciary Committee, Reps. Tommy Waters and Blake Oshiro, said the Legislature needs to look at possibly imposing mandatory minimums based on the findings of The Advertiser's analysis of pedestrian-fatality cases over the past five years.
The newspaper found that roughly half the drivers deemed criminally responsible for a pedestrian's death received no jail time as part of their sentences and almost all the drivers who pleaded guilty or no contest to third-degree negligent homicide, a misdemeanor, did not spend time behind bars. The maximum jail term for the misdemeanor charge is one year.
"When there's a loss of life, it's not unreasonable to expect mandatory jail," said Waters, the Judiciary chairman.
Waters and Oshiro, the vice chairman, said the Legislature historically has been reluctant to impose mandatory minimums because that infringes on the discretion of judges, who can evaluate all the evidence in a case and decide an appropriate sentence.
"Justice isn't a cookie-cutter process," Oshiro said. "It's not a one-size-fits-all for every situation."
But family members of people who have been killed on Hawai'i streets say judges have been too lenient with negligent drivers, giving light sentences that do not serve as deterrents for other drivers and do not reflect the seriousness of the crimes.
"The judges and justice people need to step up to the plate," said Greg Askey, whose 28-year-old son, Dennis Askey, was killed in 2006 while riding a moped on Kapi'olani Boulevard. "I don't care if you kill someone with a car or you kill someone with a gun, killing them is killing them."
The Advertiser analysis showed that 14 of 16 drivers who pleaded guilty or no contest to third-degree negligent homicide received no jail time as part of their sentences. All but three of the 14 were granted deferred-acceptance pleas by the court, meaning they could have the negligent homicide charge wiped from their records if they stayed out of trouble for a year.
Oshiro said he empathized with families upset that drivers not only spend no time behind bars but have the ability to clear their records, while the victims' survivors have to cope with the permanence of losing a loved one.
The situation would be especially troubling if the driver had a history of traffic infractions, Oshiro said.
The Judiciary vice chairman said he intends to introduce a bill next session that would establish a mandatory minimum jail term and prohibit the issuing of deferred-acceptance pleas.
Such a bill likely would face difficult odds, based on the Legislature's past reluctance to erode judges' discretion in deciding sentences.
One of the few times in recent years that the Legislature successfully has delved into that arena was in 2006, when law enforcement officials lobbied for mandatory jail time for people convicted of electronic enticement of minors. The sex-crimes bill, which was signed into law, established a mandatory minimum of one year in jail. This year, the law was revised to require a 10-year prison term without probation.
Oshiro said legislators adopted the original measure after prosecutors produced data showing people convicted of such crimes overwhelmingly were getting no jail time, indicating a systemic problem in the courts.
Oshiro believes the newspaper's fatality findings likewise suggest a systemic problem.
But others expressed reservations about adopting mandatory minimums.
While Waters said it's not unreasonable to expect jail time in negligent homicide cases, he questioned whether changing the law would prompt drivers to alter their behavior.
He said he has seen no behavior changes since the Legislature in 2005 passed a law requiring drivers to stop rather than yield whenever a pedestrian is in a crosswalk in the driver's side of the road. In 2007, legislators upped the fine for first-time infractions to $150, from less than $100.
"I don't think that's done a darn thing," Waters said. "People still don't stop."
Sen. Brian Taniguchi, chairman of the Senate Judiciary Committee, said imposing mandatory minimums might create unintended consequences, another reason legislators tend to shy away from such measures.
Prosecutor Peter Carlisle voiced similar concerns, saying requiring jail time might, for instance, prompt defendants to be less inclined to accept plea agreements, increasing the number of jury trials. He said legislators should proceed carefully if they consider mandatory minimums.
Oshiro said doing away with the deferred-acceptance pleas might be more palatable to legislators than requiring jail time.
But the sentencing problem seems serious enough that something should be done, he said. "I can certainly understand why the families are upset."
Reach Rob Perez at email@example.com