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The State of Aloha

This newspaper often in great detail reports on criminal defendants, their cases and the kinds of sentences doled out by our local courts. In many cases defendants are sentenced to probation. But what happens after that?

Defendants are given a set of conditions to follow and they are supervised by a probation officer. Exactly how long someone is supervised depends on the offense. It can range from one year to a decade. Most felonies, like car thefts, assaults with significant injuries and possession of methamphetamine, get four years of probation supervision.

Most in the criminal justice system — the prosecutors, defense counsel and judges — think of probation as the more lenient sentence. After all, it beats going to prison.

The United States imprisons more people than any other country on the planet. We lead the world in the prison population. For decades it did not matter what the data showed. The answer to criminality was prison and more prison.

The financial burden on taxpayers didn’t matter. In 2017, the United States Bureau of Prisons calculated that it cost on average $99.45 a day for every person it incarcerated. (In 2016, the State of Hawai’i spent around $140 a day on each person — a total of $51,100 per prisoner every year.)

Racial disparity didn’t matter either. The fact is that the overwhelming majority of prisoners were Black and brown men. Sending people to prison was what we did.

Changing this view has been gradual. After years of tireless advocacy, a few lawmakers, prosecutors and judges are committed to reducing the number of people locked up in jails and prisons.

Probation seems to be the most viable way out of the mass incarceration. After all, it promotes healthy social behavior like staying employed or being in school.

But is it? If defendants violate their conditions of probation, they often wind up back in jail. Violations range from committing a new offense to technical violations like failing to pay court fines, failing to check in regularly with a probation officer or failing to report mere police contact. After a violation, the judge will often revoke probation and resentence the defendant.

That means judges can impose imprisonment or, as they do in many cases, resentence the defendant to a brand-new term of probation. The clock restarts for another four years.

Most public defenders on Maui will be able to tell you about at least one client who has surpassed the original sentence time on probation because of technical violations. The downward spiral of probation, violations, revocation and resentencing eventually can end in a prison sentence.

This is why Philadelphia prosecutor Larry Krasner has described mass supervision as “the evil twin of mass incarceration.” Krasner’s solution is simple. End the cycle by shortening the period of supervision. His reasoning is backed by data. In Philly, it turns out that folks did well on probation for the first two years. After that, they start to slip up with technical violations. Technical violations, that is, violations that aren’t new criminal offenses, mount up and lead to reentering the criminal justice system. For many, it can feel inescapable.

Krasner says that in Philly the period of probation is far too long. So how does Hawai’i measure up? Turns out not so good.

This year the Pew Charitable Trust’s public safety performance project published a study on the average length for probationers across the country. While most state averages are two years, Hawai’i has the longest period of probation.

The average probationer in the islands spends 58.9 months — close to five years — under state supervision. While the study doesn’t explain why we have the longest period, the revocation proceedings remind me of a very different time in our history.

In 1850, King Kamehameha III, at the urging of sugar companies and industry, signed into law the Masters and Servants Act. The law acted a lot like probation, but for plantation workers. If workers absconded from the job, sugar companies got warrants for sheriffs and bounty hunters to hunt down errant workers and haul them to court. There, the judge would penalize them by extending their labor contracts for the time they absconded. In some cases, they could sentence them to hard labor or imprisonment.

This created an oppressive revolving door of endless contract labor. The workers, most of whom were Asian immigrants unable to participate in the democratic process in the kingdom, felt it resembled slavery, while judges, who tended to be haole and Hawaiian, upheld the law.

It was not abolished until 1898 in anticipation of annexation to the United States. But the damage was done. The paternalistic plantation culture of supervising and overseeing the workforce was entrenched in the islands for decades. Perhaps that’s why probation supervision here is longer here than anywhere else. It’s a tough habit to kick.

* Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is 808stateofaloha@gmail.com. “The State of Aloha” alternates Fridays with Sarah Ruppenthal’s “Neighbors.”

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