Gov. Ige signs bill cutting penalties for possessing drug paraphernalia

Gov. David Ige has quietly signed a new law that dramatically reduces the penalties for possession of all kinds of drug paraphernalia — a proposal that was opposed by Attorney General Douglas Chin as well as prosecutors on Hawaii island, Maui and in Honolulu.

County of Hawaii Prosecutor Mitch Roth called the new Act 72 a ‘‘dumb law” that will cost the state money in the long run. Roth predicted the measure will actually have the unintended effect of causing more people to be sent to prison for drug offenses.

But state Rep. Joy San Buenaventura, who introduced the bill, said the public debate and media coverage of House Bill 1501 this spring demonstrated it was only some law enforcement officials who opposed the measure.

“There was no public outcry against its passage,” said San Buenaventura (D, Pahoa-Kala­pana). “The only people who were against it was not the citizens, it was the prosecutors.”

Ige has scheduled a series of public ceremonies and invited media to watch as he signed less controversial bills into law, but there was no public signing ceremony for HB 1501 this week. A spokeswoman for Ige said there was no news release announcing the signing because there was no indication of great public interest in the new law.

Until Ige approved the new law, possession of drug paraphernalia ranging from marijuana pipes to plastic bags and needles was a felony that carried a penalty of up to five years in prison and fines of up to $10,000. Those penalties for possession of paraphernalia were adopted in 1988 and were some of the harshest in the nation.

Under the new law, which took effect Monday, people caught with drug paraphernalia would face no jail time and could be fined no more than $500.

The measure was supported by The Drug Policy Forum of Hawaii, the American Civil Liberties Union of Hawaii and the Democratic Party of Hawaii.

San Buenaventura predicted the new law will help to ease jail overcrowding. People who have been arrested for multiple felonies generally have higher bail than people with fewer serious charges against them, and arrestees who face more charges often sit in jail awaiting trial because they cannot come up with enough money to make bail, she said.

If those same people have one less felony charge against them, that improves their chance of posting bail and winning their release while they await trial, she said.

Nolan Espinda, director of the state Department of Public Safety, said it will take some time to sort out exactly how the new law will affect Hawaii’s overcrowded prison and jail facilities.

Effect on jails unclear

As of January, Public Safety officials reported the state was holding 150 prison inmates and 109 jail inmates in connection with drug paraphernalia charges, but Espinda said each of those inmates was also accused or convicted of one or more felony counts that were equally serious. No one was locked up solely for a drug paraphernalia charge, he said.

However, Espinda noted the number of felony charges is considered when bail is being set for detainees, and also when judges impose jail or prison sentences on convicts. It is also a consideration when the Hawaii Paroling Authority decides the minimum terms that prison inmates must serve.

That might mean the new law will help reduce Hawaii’s prison and jail populations, but Espinda said it is too soon to be certain whether that will be the actual outcome.

Chin predicted in written testimony to lawmakers that changing the paraphernalia law probably won’t do much to reduce the prison population.

Chin argued that a felony paraphernalia charge is rarely filed by itself. It is far more common that a paraphernalia charge is filed along with another drug felony such as third-degree possession of a dangerous drug, which is also punishable by up to five years in prison, he said in written testimony.

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

Roth predicted that because of the workings of the plea bargaining process, the new law will actually cause an increase in the number of criminal trials and costs for the state.

Trial strategy shifts

Some drug possession offenses carry minimum prison terms, and Roth said prosecutors occasionally agree to dismiss those possession charges in exchange for a guilty plea to a paraphernalia charge, which has no minimum term. The prosecutor can then use those paraphernalia convictions to put offenders on probation and send them to drug treatment rather than jail, he said.

However, if there is no paraphernalia charge, the prosecutor will pursue the possession charge, he said. And since those possession charges might carry mandatory prison time, more defendants will take their cases to trial to try to avoid prison, he said.

“They’ll go to trial, which is going to cost the state a lot of money, (and) there will be appeals because we’ll get convictions, which will cost the state a lot of money,” Roth said. “You will not reduce anybody from going to prison. If that’s what they were trying to do, it really does nothing.”

Roth said drug paraphernalia charges generally are not filed in cases involving marijuana, so the issue isn’t the use of cigarette rolling papers. “We’re charging it with hard drugs,” he said.

San Buenaventura said another concern was that leaving the old paraphernalia law in place would have a “chilling effect” on the state’s medical marijuana dispensaries. The dispensaries will not be allowed to sell edible marijuana products, so users will need some sort of paraphernalia to use their marijuana, she said.