To promote “truth in sentencing” in Hawaii criminal cases, the head of the state prison system is proposing that the state transfer responsibility for setting inmates’ minimum prison terms for felony offenses from the Hawaii Paroling Authority to state judges.
Hawaii is unusual and possibly even unique among the states for assigning the task of setting minimum prison terms for convicts to the parole board, a practice that gives it extraordinary power.
Most states assign the duty of setting minimum prison terms to the judges who preside over the criminal cases, and state Department of Public Safety Director Nolan Espinda says Hawaii should do the same. In part, the issue is one of “truth in sentencing” for the victims, who are among the people most affected by the sentences that are meted out, Espinda said.
Victims of crimes in Hawaii “go to trial, they observe the guilty finding and they see the judge slam the hammer down on ‘Sentenced to 10 years,’ only to find that later on, a separate entity actually sets the amount of time that’s going to be served by the individual,” Espinda said.
Some victims then testify before the parole board at Halawa Correctional Facility “and again relive the old trauma” of the crime there, he said. That might be avoided if the minimum term were set by the trial judge at sentencing.
Felony convicts in Hawaii are generally sentenced by the courts to “indeterminate” prison terms, which means they are sentenced to terms of up to five years, up to 10 years, up to 20 years or up to life in prison, depending on the crime. However, many inmates are paroled before serving the maximum amount of prison time allowed under their sentences.
The crucial decision of how much prison time an individual must actually serve before being considered for parole — also known as the “minimum term” — is left to the paroling authority. The authority sets a minimum term for each inmate shortly after the prisoner is admitted to the correctional system, and the authority can later reconsider and reduce that minimum term if it chooses.
The paroling authority holds more than 1,600 minimum-sentence hearings a year, which amounts to about a third of its workload, Espinda said.
Annelle Amaral, one of the five members of the Hawaii Paroling Authority, said most of her colleagues on the parole board likely would agree with Espinda that the courts should set minimum terms for inmates.
“The difficulty is that we basically get the information about the crime, we get the police reports, sometimes we get the victims’ statements, we read it, like, overnight and then we go in and have this hearing” to consider what minimum term should be imposed, Amaral said.
“The judge has been sitting there for three to five days listening to testimony,” she said. “Isn’t the judge better informed than a bunch of parole board members? I think the judge is.”
In the past some of the parole boards have been “pretty punitive” and given out 50-year minimum sentences in some cases, Amaral said. Some of those very high minimum terms are now being appealed by the inmates and reconsidered by the authority based on a 2007 Hawaii Supreme Court decision that found the authority had failed in some cases to follow its own guidelines for setting minimum terms.
It’s unclear what impact shifting the responsibility for minimum terms over to the courts would have on the amount of prison time that is served by Hawaii inmates. Hawaii historically has required its convicts to serve more prison time than other states as measured by the average length of stay by inmates at the time of their release.
A study by the Pew Center on the States titled “Time Served: The High Cost, Low Return of Longer Prison Terms” found that inmates released from the Hawaii prison system in 1990 had served an average of 3.7 years, which at the time was the longest average length of stay for any correctional system in the nation.
That same study by Pew found the average length of stay for Hawaii inmates dropped to 3.1 years in 2009, while other states’ averages had significantly increased. With those shifts in sentencing practices, Hawaii ranked eighth in the nation based on the average length of stay for inmates released in 2009, while Michigan had the highest average at 4.3 years.
Howard Luke, a longtime Honolulu criminal defense lawyer, said it is difficult to say how the changes that Espinda has proposed would affect sentencing.
Luke recalled one case in which a judge recommended that the parole board set a very short minimum term, a suggestion the parole board ignored when it imposed a long minimum sentence. In another case Luke heard a judge announce that he would impose the death penalty on a convict before him if he could.
Luke said the current parole board is “quite good,” but he agreed the judges who preside over trials are often better informed than the paroling authority members. The parole board receives police reports in the cases it considers but does not generally receive a transcript of the trial, which might give the board a one-sided view of cases, he said.
The idea for shifting responsibility for setting minimum terms to the state’s judges originated from the Penal Code Review Committee that met last year to consider reforms in the state’s criminal laws, Espinda said. The sentencing subcommittee of the group wanted the idea to be considered but did not have time to include it in the package of changes that was introduced at the state Legislature this year.
Espinda made his proposal to the Correctional Justice Task Force, which was created by the Legislature this year to study prison and jail policies in Hawaii and other jurisdictions. The task force will suggest improvements for the Hawaii system and is scheduled to present its recommendations to lawmakers next October.
Tommy Johnson, paroles and pardons administrator for the HPA, said the parole board as a whole cannot take a position on Espinda’s proposal until it can review a specific, detailed proposal and discuss it.
Honolulu Prosecutor Keith Kaneshiro declined comment on the proposal, and Hawaii Chief Justice Mark Recktenwald also declined comment on the idea. Recktenwald said in a written statement that “it would be premature for me to discuss any specific recommendations or proposals the task force is currently reviewing or considering at this time.”
