Downgrading of drug charge proposed

Hawaii now has some of the most severe penalties in the nation for people who are caught with drug paraphernalia, but House lawmakers are attempting to downgrade those paraphernalia offenses from felonies to civil violations that would result in fines and no prison time.

That proposal is seen as a way to reduce overcrowding in the state’s prisons and jails, but it is strongly opposed by state Attorney General Douglas Chin as well as the Honolulu and Hawaii island prosecutors.

Possession of drug paraphernalia ranging from a methamphetamine pipe or needles to a plastic bag coated with drug residue is now punishable by up to five years in prison and a $10,000 fine.

House Bill 1501, which was approved by the House Judiciary Committee on Wednesday, would dramatically reduce those penalties to a maximum fine of $100 with no possible jail time.

Supporters of the bill predict it will save state government millions of dollars by reducing the number of people sent to prison and jail for drug offenses.

State Rep. Joy San Buena- ventura, who introduced the bill, said Hawaii imposes the harshest penalties of any state for possession of drug paraphernalia. The felony charge also results in higher bail amounts that make it particularly difficult for prisoners to post bail and get out of jail.

“The problem with that is it leads to prison overcrowding,” she said. “Whenever the homeless are incarcerated, it’s usually drug paraphernalia.”

If the people arrested with paraphernalia were diverted into treatment and other programs such as drug court, “than maybe we wouldn’t have this prison overcrowding problem,” said San Buenaventura, who has defended drug and other offenders in her law practice.

However, Chin said the proposed change in penalties for paraphernalia probably won’t do much to reduce the prison population.

A felony paraphernalia charge is rarely — if ever — filed by itself, Chin said in written testimony. The paraphernalia charge is more commonly filed in addition to another drug felony such as third-degree possession of a dangerous drug, which is also punishable by up to five years in prison.

That means most people charged with felony paraphernalia possession are already facing significant prison time for another charge. Most people convicted of paraphernalia possession are not required to serve out the full five-year maximum unless they are repeat offenders or have violent criminal histories, Chin said.

Toni Schwartz, public information officer for the state Department of Public Safety, said there are currently 150 people serving prison time whose most serious or “lead” conviction involves possession of drug paraphernalia. Those inmates amount to about 4 percent of the total prison population.

There are another 109 people in Hawaii jails awaiting trial whose lead charge involves drug paraphernalia, which amounts to about 5 percent of the total jail population, she said.

Pam Lichty, president of the Drug Policy Action Group, urged lawmakers to pass HB 1501 to reduce the penalties for possession of drug paraphernalia.

Enforcing the existing law “is disproportionately costly for little to no benefit to society,” she said in written testimony. “It merely adds another charge to persons accused of possession of an illegal substance. Tax dollars are better spent on community programs and rehabilitation for nonviolent, low-risk drug offenders.”

Honolulu Deputy Prosecutor Mark Tom disagrees. He asked lawmakers to remember the term “drug paraphernalia” includes items such as scales used to weigh drugs and baggies used to package them, which he described as the “tools of the trade” for drug dealers.

“The Legislature has criminalized burglary tools … and the reason? Tools of the trade, similar to drug paraphernalia,” Tom said.

The ACLU of Hawaii, meanwhile, supports the bill as “a good step toward addressing the issue of over-incarceration and overcrowding,” said Mateo Caballero, legal director of the ACLU.

Hawaii jails are so severely overcrowded today that the ACLU of Hawaii Foundation has asked the U.S. Department of Justice to investigate Hawaii’s correctional facilities.

The ACLU filed its formal complaint with the Justice Department after a yearlong investigation of prison and jail conditions concluded that conditions were so bad that they amounted to unconstitutional cruel and unusual punishment for the inmates.