DECRIMINALIZATION OF NONSERIOUS OFFENSES: A PLAN OF ACTION

 

Focus of Study

House Concurrent Resolution No. 261, H.D. 1, S.D. 1, Regular Session of 2004 (hereafter H.C.R. 261 or Resolution), entitled "Requesting the Legislative Reference Bureau to Review, Analyze and Recommend Changes to the Statutes and State Rules that Criminalize Non-Serious Offenses and Requesting each County to Review, Analyze and Change County Ordinances and Rules that Criminalize Non-Serious Offenses." The Resolution called upon the Legislative Reference Bureau (hereafter Bureau) to "identify, review, and analyze, to the extent possible, all statutes (other than the Hawaii Penal Code) and state rules" that establish misdemeanor and petty misdemeanor criminal offenses, but provide only for a fine, and those that establish criminal penalties of imprisonment, or fines in excess of $1,000, or both, that, "in a common-sense, plain meaning application of the provision, is non-serious." The Resolution also called on the Bureau "to recommend changes to the identified statutes and state rules that would make the penalties more consistent with the penalties imposed for decriminalized traffic infractions."

 

Discussion

Where the demand on judicial resources continues to outstrip the supply, efforts to increase the use of non-judicial dispute resolution methods are necessary, not only to focus those limited resources on matters of the highest priority, but to instill in the public the confidence that those resources are being used fairly, efficiently, and quickly in those cases that must go to court. Widespread attention has been paid to alternative dispute resolution in the civil context arbitration, mediation, private judges, etc. but efforts to prioritize the use of judicial resources in criminal cases is less well known, and perhaps more controversial.

At least part of the pressure on judicial resources arises from the traditional legislative practice of trying to deter undesirable conduct by making it a criminal offense. While, at one time, the prospect of being convicted of a criminal offense might have dissuaded offenders from engaging in prohibited conduct, the proliferation of non-traditional criminal offenses outside the Hawaii Penal Code and an emerging jurisprudence that requires those offenses to be judicially processed in an increasingly tedious fashion has diluted the intended deterrent effect and made the prospect of actually having to suffer punitive consequences (i.e., incarceration) increasingly remote.

The Hawaii Legislature has undertaken efforts to decriminalize certain offenses that do not warrant the expenditure of significant judicial resources. Act 222, Session Laws of Hawaii 1978, decriminalized many traffic offenses. Act 214, Session Laws of Hawaii 1993, went even further, not only decriminalizing more traffic offenses but also establishing a less formal method of disposition so that the benefits of decriminalization could be realized with fewer court appearances for the public and consumption of fewer judicial, police, and prosecutorial resources as well.

Even with these efforts, numerous criminal offenses remain on the books outside the Penal Code that are routinely disposed of by a fine but which, because they are technically criminal, require at least one court appearance and all of the time and expense that goes with it. Some of these are traffic offenses but many are offenses that have become arcane, sometimes perceived as being irrelevant, with the passage of time. Ideally, and to be theoretically consistent, the full body of Hawaii law would be studied to purge it of this baggage but the lack of resources is not unique to the judicial branch.

 

Recommendations

Therefore, a simpler, more practical approach is recommended. If the judiciary takes the initiative to periodically identify those offenses that, despite the possibly serious penalties, are routinely and consistently being disposed of with fines or other monetary assessments, the Legislative Reference Bureau will work with the agencies having jurisdiction over the subject matter to determine if decriminalization can be accomplished without undermining the purpose for which the law originally was enacted. Thereafter, recommendations including proposed legislation, for decriminalizing these provisions, will be made to the Legislature accordingly. Furthermore, it is recommended that this process start by considering decriminalization of those criminal offenses relating to motor vehicles and traffic movement that remain in the HRS and that are similar in nature to those motor vehicle and traffic offenses already decriminalized. These are catalogued in Appendix D of this report.

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