Hawaii’s three-strikes law was touted as a way to make the community safer, but since its passage nearly five years ago, the statute has been used only once and is now destined to quietly expire this summer.
Hawaii’s ‘habitual felons’ law
The state "three-strikes" law was adopted in 2006 but has only been used once at sentencing. The law expires July 1.
It allows prosecutors to seek a prison term of at least 30 years to life for a third violent felony conviction. The felon would not be eligible for parole until he or she has served a minimum term of 30 years or more set by the judge.
Violent felonies include murder, manslaughter, first-degree assault, kidnapping, first- and second-degree sexual assault, first- and second-degree robbery, continuous sexual assault of a minor and first-degree burglary.
The 2006 law mandates a sentence of at least 30 years to life for a third conviction for a violent offense.
Since it was adopted, the law was used to sentence a man who pleaded guilty to murder and agreed to be sentenced under the law because he wanted to avoid an even harsher prison term.
Former city Prosecutor Peter Carlisle and former Attorney General Mark Bennett campaigned for the measure. Carlisle, now Honolulu mayor, said he still thinks it is a useful tool to deal with the most violent, dangerous criminals.
But the current city prosecutor and the acting attorney general aren’t pushing to keep the law alive beyond July 1, when it is scheduled to sunset.
"It doesn’t appear that it’s needed," Prosecutor Keith Kaneshiro said. "If it was needed, (law enforcement) would have used it more often, especially since they advocated so vigorously for it."
Acting Attorney General David Louie agreed.
"Right now we don’t see any need for it to be extended," said his spokesman, Joshua Wisch.
Kaneshiro did not include an extension in his legislative proposals this session, and it was not part of the law enforcement coalition package outlined by Louie. Kaneshiro, Louie’s office and legislative clerks are not aware of any pending bills that would extend the law.
Hawaii’s three-strikes law is an offshoot of similar laws enacted around the country after voters in California approved its version in 1994.
When former Gov. Linda Lingle signed the bill in May 2006, Bennett said the law would make Hawaii safer and would be worth it if it deterred just one serious crime.
"This bill will protect thousands of our residents from being raped, robbed or terrorized," Bennett predicted.
Critics contended the measure was redundant. Other laws already carried harsh sentences for repeat offenders in Hawaii.
"I think this bill is purely political, so politicians can say they’re being tough on crime," Jack Tonaki, state public defender, said when the bill was being debated.
The law included the sunset provision and a request that the state Judiciary report to this year’s Legislature the number of times Hawaii judges sentenced defendants under the statute.
The Judiciary reported that the law was used once.
In that case, Alapeti Siuanu Tunoa Jr. received a prison term of 30 years to life after he pleaded guilty to murdering his former girlfriend, Janel Tupuola, by beating her with the butt of a shotgun on a Kailua roadway in 2008. He also beat a 69-year-old man who tried to intervene.
Tunoa had two prior robbery convictions, making him eligible to be sentenced under the law.
Deputy Public Defender Jason Burks said his client entered the plea agreement because he could have faced a harsher sentence had he gone to trial.
If convicted of murder, Tunoa could have faced an extended sentence of life without parole, Hawaii’s harshest penalty, according to Burks.
Even if the defense had obtained a conviction on a lesser manslaughter offense, Tunoa still would have qualified for the three-strikes law, Burks said.
Tunoa’s sentence meant that he would not be paroled for 30 years, but the Hawaii Paroling Authority later set the minimum term Tunoa must serve at 180 years.
Tommy Johnson, paroling authority administrator, said the board reviewed various factors, such as the prisoner’s criminal history and the nature of the crime.
The 30-year minimum Tunoa received under the three-strikes law was "immaterial to the board’s decision," Johnson said.
"Given the circumstances, I don’t think the three-strike law really had a huge impact on this type of case," Burks said.
Tonaki said the law is "superfluous and not necessary," noting that paroling officials often set minimum terms higher than what the judge orders.
"The seriousness of the crime is already reflected in the minimums given out by the Hawaii Paroling Authority," Tonaki said.
but Carlisle, who personally prosecuted the Tunoa case, said the defendant was exactly the type of person that the law targeted.
The former prosecutor cited his remarks after the bill’s passage that the law wasn’t intended to be liberally applied, but would be reserved for the "worst of the worst."
A case like Tunoa’s, he said last month, "doesn’t happen very often, thank God, in Hawaii, but that doesn’t mean it won’t happen again."
Although the parole board set the minimum at 180 years, that term is based on internal policies that could change in the future, he said.
Also, after the prisoner serves 20 years, a life term without parole under state law can be commuted by the governor to a term of life with parole, which means paroling officials would have the option of paroling the prisoner, Carlisle said.
"This was the best and most effective and most certain method of ensuring (Tunoa) of a 30-year term," Carlisle said.
Kaneshiro conceded that the paroling authority could reduce its 180-year minimum in the future, but said it would be "highly unlikely" that it would be reduced to the point that Tunoa would be released earlier than 30 years.
He said Tunoa could have received a minimum prison term by the judge as high as 43 years under the current repeat offender and firearm statutes, even without the three-strikes law.
Bennett, now in private practice, declined to comment.
Kaneshiro, who succeeded Carlisle in October, said he is not aware of any pending cases at his office that would qualify under the three-strikes law.
"The necessity for the law was a little bit overblown, exaggerated," Kaneshiro said.
State Rep. Blake Oshiro (D, Aiea-Halawa) said the position by Kaneshiro and Louie is a "strong indicator" that the law shouldn’t be extended.
The House majority leader said he feels "some degree of comfort" that the existing laws "appear to be adequate, at least when it comes to the most dangerous and violent offenders."