Public safety in Honolulu is being threatened by convicted felons violating probation without any penalties because a program designed to keep high-risk probationers from committing new crimes by imposing immediate sanctions isn’t being run right, Prosecuting Attorney Steve Alm told the Honolulu Star-Advertiser.

Hawaii’s Opportunity Probation With Enforcement, or HOPE, was created by Alm when he was 1st Circuit Court judge in 2004 to “reduce probation violations by drug offenders and others at high risk of recidivism” by imposing immediate jail time for positive drug tests or a missed meeting with a probation officer ranging from three days or longer depending on the type of violation and the circumstances of the incident.

Since Alm left the bench in 2016, he said, the program is the same as regular probation, with no mandatory consequences for felons who commit multiple probation violations.

“Public safety is now being threatened in three ways,” Alm said. “First, when HOPE probationers test positive, typically for methamphetamine, they are allowed to drive away from the courthouse while under the influence, presenting a risk to everyone on our roads.

“Second, research has shown that probationers in HOPE are arrested for new crimes 55% less often than those on regular probation. Now that HOPE is run just like regular probation, more people will be assaulted, have their houses burglarized and their cars stolen.

“Third, sex offenders and domestic violence offenders are now not being held accountable with immediate sanctions. When there are no consequences for misbehavior, you get more misbehavior.”

Alm shared the violation history of seven HOPE probationers convicted of an array of felonies, including burglary, criminal property damage, terroristic threatening, promoting a dangerous drug and forgery, who racked up multiple violations before any motion to revoke their release was filed.

On Oct. 4, 2017, Erin Park was granted a deferred acceptance of guilty plea for second-degree burglary for breaking into the Nanaikapono Protestant Church. If she abided by the conditions of HOPE probation for four years, her record would be cleared of that crime.

Since her sentence, Park racked up 19 separate probation violations before a motion to revoke her probation was ever filed.

Among the violations that date back to December 2020, Park admitted to using drugs 11 times, failed to submit a urine sample on command three times, tested positive for drugs, failed to report a January arrest for assault and did not enroll in mental health and substance abuse treatment programs.

Kennedy Siaosi Jr. also received a deferred acceptance of guilty plea and four years of probation for a Sept. 20, 2018, conviction for promoting a dangerous drug in the third degree and forgery in the second degree. He racked up 14 violations before a motion was filed Aug. 11 to modify his probation.

Siaosi didn’t take 10 drug tests since March and missed four meetings with his parole officer since January.

None of the 14 violations were met with immediate sanctions, Alm said, and motions for modification of his probation from 2019 show that at that time a single probation violation resulted in the probation officer filing a motion and getting immediate sanctions for Siaosi. That ended in 2019 when HOPE cases were reassigned to more than one judge.

“As the most recent motion for Mr. Siaosi shows (with his 14 violations), the Judiciary is no longer imposing immediate sanctions for HOPE probationers and is instead allowing violations to pile up without being addressed,” Alm said.

In a Feb. 9 letter to Chief Justice Mark E. Recktenwald, Alm and state Public Defender James S. Tabe wrote that HOPE is not being implemented as the model was intended, with swift, certain, consistent and proportionate consequences for probation violations.

“We urge you to reconsider, change direction, and implement HOPE the way it was conceived and implemented successfully for 16 years to protect society, reduce arrests for new crimes, reduce incarcerations, and help people succeed on probation,” wrote Alm and Tabe.

The state Judiciary information system tracks whether someone is on HOPE, and cannot provide the number of HOPE probationers for each of the past five years. A point-in-time count in July showed there were 1,165 defendants on HOPE probation, according to the Judiciary.

The Judiciary “strongly disagrees” with Alm’s assessment of HOPE probation and says that some of the changes to the way it is administered are meant to return some discretion to judges and probation officers as opposed to one set of penalties for every offender in the program.

“Probation has two goals: protecting public safety and doing so while rehabilitating the offender. The Judiciary employs evidence-based practices to accomplish these two goals. As a result, we have modified the HOPE program to incorporate current evidence-based practices that have been developed since the 2000s,” Jan Kagehiro, the Judiciary’s communications and community relations director, told the Star-Advertiser.

Part of what’s changed about how HOPE is run now, according to the Judiciary, is that now if a probationer admits to using an illegal drug, that person’s probation officer decides on the appropriate sanction.

The sanction could be increased reporting, more drug testing, rehabilitation programs or jail.

“Drugs stay in the body for a long period of time after the effects wear off, but certainly, if defendants appear to be impaired or behaving erratically and could pose a danger to themselves or others, they will be taken into custody,” Kagehiro said.

First Circuit Chief Judge R. Mark Browning told the Star- Advertiser in an Aug. 18 interview that the Judiciary consistently evaluates all programs for effectiveness and uses data-based research to amend programs to ensure they work better.

What began to happen in 2019 when the one judge doing HOPE cases retired was that the strict standards and criteria that governed HOPE were not being practiced, Browning said.

Low-level offenders, who did not show signs of substance abuse, mental health issues and were often employed and part of a family network, would face the same sanctions as high-risk offenders who were more likely to return to a life of crime.

“Mixing those offenders together is problematic,” said Browning.

Deputy Chief Criminal Judge Shirley Kawamura told the Star-Advertiser on Aug. 18 that the Judiciary assesses the defendants for risk factors, but HOPE requires judges to levy one-size-fits-all sanctions despite the defendant’s criminogenic factors: aspects of the offender’s life that contribute to whether that person commits a crime again.

“A low-risk defendant, who was doing stellar up to that point, would get a jail sanction for, say, a late UA (urinalysis),” Kawamura said. “On the flip side, we have defendants (receive) the same sanction even when perhaps the judge would administer a higher level (of sanction).”

Alm, in an August interview, said that “part of the genesis of HOPE was pairing a bad choice with a consequence” immediately, “and you can learn from it.”

“The violations need to be swift, certain, consistent and proportionate, and then you learn from it,” said Alm. “If they violate a condition of probation, they go to jail right away.”

Alm and Cheryl Inouye, supervisor of the first batch of HOPE probationers, wanted to bring Parenting 101 to the probation process, recognizing that a lot of offenders did not grow up in environments where bad behavior was immediately managed by parental justice.

“It really was to bring accountability to the system,” Inouye said. “This is what the public expects; this is what the offenders should be held accountable for.”

Alm said research from UCLA and Pepperdine University shows that allowing probationers to rack up numerous violations without consequences results in a significantly higher risk that these probationers will commit new crimes.

“We firmly believe in swift and certain consequences,” Kagehiro said. “Several significant studies have shown that jail sanctions for every violation are not well supported. Instead, the swift consequences should be determined by the probation officers and judges according to the facts of each case and each defendant to protect the public and rehabilitate the offender.”

The COVID-19 pandemic, coupled with retirements from the bench, limited the number of judges and clerks who could tend to HOPE as it had been run when Alm was still a judge, Browning said.

The Judiciary is not opposed to returning to the times of a single judge handling all HOPE probation cases, but having multiple judges handle the program is essential at a time when the priority is working though the backlog of jury trials created by the pandemic and ensuring that defendants’ right to a speedy trial are met.