SB 68 – Judicial Discretion for B &C Drug Felonies

Hawaii Should Return Sentencing Discretion to Judges

By Kat Brady 04/11/2013

Chad Blair/Civil Beat

It took the 2008 economic crisis for states to realize that locking up nonviolent drug lawbreakers is costly and unsustainable and that the war on drugs has been an abject failure. Sanity seems to be taking hold in more than half of the U.S. — the world’s largest jailer.

When Nixon initiated the war on drugs his champion was Nelson Rockefeller. The “Rockefeller drug laws” passed in 1973 and New York became the first state to experiment with mandatory minimum sentences for comparatively small drug offenses. Nearly four decades later New York repealed them over the strenuous objections of prosecutors who predicted soaring crime rates.

In 2004 and 2005, New York reformed its drug laws, increasing the felony thresholds for many drug offenses, and allowing hundreds of drug offenders to apply for re-sentencing under less strict sentencing laws. In 2009, building on those reforms, New York repealed most mandatory minimums for drug offenses, focusing on treatment instead of incarceration for most drug crimes. While those changes were supported by virtually everyone who had studied the issue for the better part of four decades, not every group was supportive.

During every step of the process some prosecutors worked to block the reforms and their implementation, promising that real reform of the Rockefeller Drug Laws would result in chaos on the streets. One prominent prosecutor, in a letter to legislators, even suggested that the reforms would “pave the road to hell.”

In fact, since reforming its mandatory minimum drug laws in 2004, New York’s violent and property crime rate has fallen 13 percent. Reform and repeal of New York’s mandatory minimum drug laws have not resulted in higher drug activity. Felony drug commitments to New York’s prisons dropped 40 percent between 2005 and 2011. The total number of drug offenders in New York’s prisons dropped 48 percent between 2005 and 2011. And statewide drug arrests fell nearly 30 percent between 2007 and 2011. Meanwhile, New York’s prison population is down 22 percent since 2000, and taxpayers have saved hundreds of millions of dollars.

The only reasonable conclusion one can draw from New York’s experiment with mandatory minimum drug laws is that despite prosecutors’ promises, reliance on mandatory minimums failed to control crime or drug activity, and despite prosecutors’ predictions, repeal of mandatory minimums has not led to increased crime or drug activity.

Last month Sens. Patrick Leahy (“Reliance on mandatory minimum sentences has been a “great mistake.”) and Rand Paul (“Judges will tell you that current federal sentencing laws — known as mandatory minimums — don’t actually do anything to keep us safer.”) co-authored the Justice Safety Valve Act of 2013.

Speaking at a convention on April 4th, U.S. Attorney General Eric Holder said, “Too many people go to too many prisons for far too long for no good law enforcement reason.”

In a 2006 Hawaii case study, Lengyel and Brown figure that the net cost to the state for the 197 drug offenders’ total prison terms upon their release in 2006 had come to $15.6 million. “The cost of incarcerating drug offenders greatly exceeds the corresponding social benefit,” they concluded.

Law enforcement vehemently promotes mandatory minimums because prosecutorial discretion is essentially conducted behind closed doors, whereas that of a sentencing judge is conducted in an open courtroom.

Hawaii has a chance to get on the right side of history by enacting into law SB 68 SD1 HD1 that passed 3rd reading in the House. Will Hawaii continue dancing in the dark with law enforcement or restore discretion to our courts?  



Bart Dame ·  Top Commenter · Honolulu, Hawaii

Well-reasoned and well-written, Kat. Thanks for all you do. One of my few sources for optimism at the Legislature is that more and more of them appear to be according Kat Brady the respect her insights deserve. They don’t always listen, but you sometimes keep them from making some bad mistakes.

Reply · 4 · Like · Follow Post · April 12 at 8:50am


Liana Petranek · Associate Editor at Arab Studies Quarterly

Better to decriminalize drugs and treat drug problems with a universal single payer health plan like they do in more civilized countries.

Reply · 1 · Like · April 12 at 9:08am


Dawn Morais Webster · Following ·  Top Commenter · University of Hawaii at Manoa

Thanks Kat Brady for all you do on behalf of those who are in prison and for being a voice for much needed reform.

Reply · 3 · Like · Follow Post · April 11 at 9:08am

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