Last year, the first half of the Hawaii legislature's bifurcated two-year session, a "treatment not jail" bill backed by Gov. Benjamin Cayetano (D) that would have mandated probation and drug treatment for nonviolent, first-time drug possession offenders passed both the House and the Senate, only to remain bottled up awaiting action by a conference committee (http://www.capitol.hawaii.gov/sessioncurrent/bills/sb1188_.htm). Because this year's session is a continuation of last year's, only a reconciliation of minor differences between House and Senate versions of the bill in the conference committee stands between the measure and final votes in the two chambers. But in a surprise move, Senate Judiciary Committee chairman Brian Kanno (D-Makakilo) last week pushed forward an alternative measure, much to the consternation of drug reformers, the state's Department of Public Safety and one of the state's leading newspapers.
In a hearing with very little public notice last week, Kanno's committee approved and sent on the Senate floor SB 883 (http://www.capitol.hawaii.gov/sessioncurrent/bills/sb883_sd1_.htm), which calls for a constitutional amendment mandating drug treatment for first-time nonviolent drug offenders. Under Hawaii law, such a measure must pass both houses of the legislature by a two-thirds vote and would then be placed on the November ballot for a popular vote.
Oddly enough, the Senate Judiciary Committee approved the measure without hearing a single witness testify in favor of it. The ACLU of Hawaii, the Community Alliance on Prisons, and the state law enforcement bureaucracy and the Department of Pubic Safety all testified in opposition. Critics testified that they supported drug treatment instead of prison, but that Kanno's constitutional amendment was not the best way of achieving that end.
"The treatment not jail bill was stalled in conference committee last year because Kanno was worried about its provisions removing mandatory minimums for ice [smokable methamphetamine], Hawaii ACLU head Pam Lichty told DRCNet. "Ice is a big problem here, and Kanno is very concerned about what his constituents think about ice," she said. "This proposed constitutional amendment is a way for Kanno and the legislature to avoid the issue. If they want a treatment bill, SB1188 is a perfectly good bill. All they need to do is get it out of conference committee," she said.
Kanno, as head of the Senate Judiciary committee, is the person who will make that decision, Lichty said.
Both the ACLU and the Community Alliance on Prisons testified that they wanted legislators to support SB1188 instead of the constitutional amendment. Changing the penal code is the proper way to do sentencing reform, they said, not a constitutional amendment.
"The consensus among the knowledgeable is that you don't enact penal reforms via a constitutional amendment -- it's unwieldy and inappropriate," said Lichty. "In this case, they're replacing a well thought-out 25-page bill with a one-sentence question to voters. If the constitutional amendment were to pass instead of SB1188, there would inevitably be months of delays in implementation. Hawaii has a prison overcrowding crisis right now; we can't wait," she said.
Kanno's maneuver has also earned the wrath of the Honolulu Advertiser. In a Tuesday editorial, the newspaper lambasted the lawmaker for his shenanigans. "If Kanno comes to believe that treatment for nonviolent drug offenders is simply the better way, then there is no need to pussyfoot around a constitutional amendment," the newspaper wrote. "Kanno should lead, follow, or get out of the way. Treatment instead of incarceration for first-time drug offenders is way overdue and should become law this year."
Although Lichty said drug reformers would prefer action on the senate bill, "if this constitutional amendment goes forward and it is the only thing on the table, we'll support it. Just as with SB1188, we have some differences of opinion on coerced treatment, but the board of the Drug Policy Forum of Hawaii (http://www.dpfhi.org) has voted to support these kinds of efforts. We have been at the table helping to craft these bills, and most of us see this as progress," she said.
SB1188 has its limitations -- it is restricted to first-time drug possession offenders, for instance, excluding many habitual drug users, as well as even small-time drug dealers -- and its provisions mandating probation and court-ordered drug treatment will find little favor with ardent anti-prohibitionists, but politics is the art of the possible, said Lichty.
"We had to make the bill politically palatable if we wanted it to pass," Lichty said. "We don't have a citizen initiative process here, and we had to work with the legislators. Everyone thought we did the best we could in the circumstances."
Lichty was not prepared to prognosticate on the fate of the bills. "The legislature closes on May 4," she said, "so we still have some time, and it could move pretty fast if the legislators are willing. We think the constitutional amendment doesn't have much chance, but with a threatened lawsuit over prison overcrowding hanging over all this, SB1188 could move."