HB2749 HD1

SECTION 1. The legislature finds that the offices of the prosecuting attorney of the respective counties in the State, which receive taxpayer funding from and are subject to oversight by the legislature, are the most powerful actors in the criminal justice system. Among other things, prosecuting attorneys decide whether to charge people, and with what crimes. They determine, virtually unilaterally, whether individuals will be diverted from the criminal system, thereby avoiding criminal records and attendant collateral consequences. They also make influential recommendations regarding pretrial detention, bail, and sentencing. These decisions and more have a lasting impact on people accused of crime, victims, families, communities, and Hawaii's economy. Yet basic information and data about these offices and their practices, while nominally publicly available, are exceedingly difficult to access and understand.

The legislature further finds that the people of Hawaii have been frustrated by crimes committed by officers entrusted to serve within offices of the prosecuting attorney. Scandals have involved multiple law enforcement officials and have led to multiple convictions. Greater transparency in the offices of prosecutors can help prevent future incidents in which prosecutors use the power of their office for personal gain at the expense of innocent citizens and taxpayers.

All individuals, including voters who determine which prosecutors should hold elected office and taxpayers who fund these offices, deserve unfettered access to this information in a way they can understand and use, unless protected by a recognized privilege or statutory exemption. In addition to educating voters, the offices of the prosecuting attorney should disclose information to help identify the causes of mass incarceration and racial disparities in the criminal justice system. This information will improve accountability for offices that violate the law and individuals' rights. It will help produce fairer outcomes in individual criminal cases, including better-informed plea negotiations. Transparency will also hasten improvements in prosecuting attorneys' offices themselves, creating management efficiencies and cost savings. The legislature concludes that there is a compelling state interest in implementing uniform transparency requirements for the offices of the prosecuting attorney around the State, as the public has a right to know such information.

Accordingly, the purpose of this Act is to increase prosecutorial transparency in the State.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

prosecutorial transparency

§ -A Definitions. As used in this chapter:

"Charge" means any accusation of a crime by the offices of the prosecuting attorney of the respective counties, including but not limited to accusations brought by ticket, citation, information, complaint, indictment, or other charging instrument of an ordinance, citation, summary, misdemeanor, felony, or other type of crime.

"Policy" means any policy, procedure, guideline, manual, training material, direction, instruction, or other piece of information, whether formal or informal, oral or in writing, that contains any guidance whatsoever for employees of the offices of the prosecuting attorney of the respective counties.

§ -B Information to be collected, maintained, and disclosed. (a) Each office of the prosecuting attorney of the respective counties shall collect and disclose the following data for each case prosecuted by the office and maintain a record of all information collected for at least ten years:

(1) Defendant's race;

(2) Defendant's gender;

(3) Defendant's disability status, if any, including:

(A) Mental, psychiatric, developmental, and intellectual disabilities;

(B) Physical and mobility disabilities; and

(4) District or neighborhood of arrest;

(5) Charges listed on arresting agency paperwork;

(6) Charges brought by the prosecuting attorney;

(7) Whether diversion was offered;

(8) The prosecutor's recommendation on bail or bond, including release conditions;

(9) Date range of any pretrial detention;

(10) All terms of all pleas offered, including but not limited to:

(A) Charges dismissed;

(B) Sentence ranges for charges dismissed;

(D) Sentence ranges for charges in the plea;

(E) Any charges covered by the plea but not part of the conviction; and

(F) Penalties or sentence offered for taking the plea, if any; and

(11) Fines, fees, or surcharges imposed, if any.

(b) The offices of the prosecuting attorney of the respective counties shall collect and publish all office policies. Office policies shall cover procedures and protocols relating to the following:

(1) Charge dismissal and charging;

(2) Bail;

(3) Sentencing;

(4) Plea bargains;

(5) Grand jury practices;

(6) Discovery practices;

(7) Witness treatment, including when and how to procure a material witness warrant;

(8) How a decision is made to prosecute a juvenile as an adult;

(9) Assessment of fines and fees;

(10) Criminal and civil forfeiture practices;

(11) Mental health screening and collection of mental health history;

(12) Substance abuse history screening;

(13) Domestic violence survivors;

(14) Diversion policies and practices;

(15) Human resources, including but limited to hiring, evaluation, firing, promotion, and rotation among divisions or units;

(16) Internal discipline;

(17) Victim services;

(18) Restorative justice programs;

(19) Annual office trainings;

(20) Practices involving tracking and responding to prison inmates' applications for parole or resentencing; and

(21) Policies specific to vulnerable populations.

(c) The offices of the prosecuting attorney of the respective counties shall collect and publish the following information for every attorney employed in the office, with names and other personally identifying information redacted or replaced by an anonymizing identifier.

(1) Age;

(2) Gender;

(3) Race;

(4) Date hired;

(5) Title; and

(6) Disciplinary history.

§ -C Reporting requirements. (a) Beginning January 1, 2021, the offices of the prosecuting attorney of the respective counties shall make publicly available all the information required pursuant to section -B by posting it on the office's website and making it readily available to any person who requests it directly from the office. The information required pursuant to subsection -B (b) shall include the effective date of the policy or the date the information was gathered, and the office shall ensure that it posts revised, updated, or newly drafted policies or newly collected information on a timely basis; provided policies are updated at least once each year.

(b) No later than January 1, 2023, the criminal justice research institute shall:

(1) Determine a uniform and consistent manner in which the offices of the prosecuting attorney of the respective counties shall transmit the data required pursuant to section -B;

(2) Determine an implementation schedule and plan by which all offices of the prosecuting attorney in the State shall report all data required pursuant to section -B. The plan may include, at the sole discretion of the criminal justice research institute, implementation on a rolling basis that starts by prioritizing a subset of the data in section -B or starts by prioritizing reporting from larger offices;

(3) In accordance with the plan, begin receiving data from the offices of the prosecuting attorney, stripped of any individualized or identifying personal information about any person arrested or prosecuted, on or before January 31st, for the preceding calendar year;

(4) On May 1 of each year, begin publishing online the data collected under section -B in a modern, open, electronic format that is machine-readable, machine-searchable, and readily accessible to the public on the centralized statewide criminal pretrial justice data reporting and collection system. No published data shall contain individualized or identifying personal information about any person arrested or prosecuted;

(5) On September 1 of each year, produce an annual report that analyzes the data received from all offices of the prosecuting attorney comparing and contrasting the practices and trends among and between offices in the State and identifying any offices that are not in compliance with this chapter; and

(6) From time-to-time, but not less frequently than twice per year, publish issue-specific reports that provide a deeper analysis of one or more areas of prosecutorial decision-making. At least one such report per year shall focus on racial disparities in a particular point of prosecutorial decision-making.

(c) Notwithstanding any other provision of law, where the criminal justice research institute has made a determination that an office of the prosecuting attorney is not in compliance with this chapter, that office shall be ineligible to receive funding from the State. Funding shall be restored only after full compliance with the requirements of this section, after the office provides the required information from the date of non-compliance through the current date, and upon a compliance review by the criminal justice research institute and certification that the office is in compliance with this chapter.

(d) If an office of the prosecuting attorney is in compliance with this section and receives a request for information under chapter 92F that the office reasonably and in good faith believes can be satisfied by reference to data made publicly available under this chapter, the office may satisfy its obligation under chapter 92F by referring the requesting party to the relevant website containing the data. In such circumstance, the office of the prosecuting attorney shall not be required to collect and disclose the particular data requested.

If the requesting party does not believe that its request can be satisfied with data collected under this section and published on the relevant website, the requesting party may bring a claim in accordance with chapter 92F."

SECTION 3. No later than October 1, 2020, the governor shall establish a prosecutorial transparency advisory board. The advisory board shall meet no less than once per quarter with the criminal justice research institute to provide input and guidance on any and all draft rules, regulations, policies, plans, reports, or other decisions made by the criminal justice research institute relating to this Act. The advisory board shall be appointed by the governor without regard to chapter 76 and shall be comprised of no fewer than seven members, including at least two members who are public defenders or criminal defense attorneys and two members who have direct experience of being prosecuted in the State's criminal justice system. The members of the advisory board shall serve without compensation.

SECTION 4. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 5. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 6. This Act shall take effect on July 1, 2050.

HOUSE OF REPRESENTATIVES	H.B. NO.	2749
THIRTIETH LEGISLATURE, 2020		H.D. 1
STATE OF HAWAII