HB122

SECTION 1. The legislature finds that, at the end of the 2021 fiscal year, the judiciary's adult client services branch was overseeing approximately eighteen thousand five hundred offenders, all of whom were placed on probation or subject to court-ordered control, including offenders released from the Hawaii state hospital. Of these, national studies indicate that between eleven to fourteen thousand offenders were likely using substances during the commission of their offense, committed the offense to support an addiction, or were charged with a substance-related crime. A growing body of research suggests that more than sixty per cent of persons who are arrested for a felony offense, including both drug-related and non-drug-related crimes, test positive for recent drug use at the time of booking.

The legislature further finds that, without proper supervision and treatment, an offender may fail probation and commit new offenses. This causes further injury to victims, greater loss of property, and greater expenditure of the State's limited resources to identify, apprehend, prosecute, and return the offender to confinement. Persons charged with repeat offenses pose a substantially greater risk of criminal recidivism.

The legislature notes that in 2004, Hawaii was the first state in the nation to develop a high-intensity, collaborative probation strategy to effect behavioral change in higher-risk, higher-need felony probationers. The key to the Hawaii opportunity probation with enforcement program is that it offers immediate consequences for probation violations. This allows the probationer to learn by pairing a bad choice (a probation violation) with a consequence (a consistent and proportionate jail sanction). The program is parenting 101. Hawaii opportunity probation with enforcement hearings typically deal with a single recent violation, rather than allowing the violations to accumulate without consequences, as often occurs with regular probation.

The legislature recognizes that, after starting in 2004 with a small group of thirty-four probationers, all sex offenders or offenders with significant substance use issues, the program quickly grew to more than one thousand five hundred participants by 2007. The program expanded without requiring additional courtrooms, judges, court clerks, probation offers, police officers, or jail cells. The funds appropriated by the legislature went almost entirety toward expanding the program's capacity for drug testing and treatment. By 2016, the program had expanded to include more than two thousand participants.

The legislature notes that, since 2007, the Hawaii opportunity probation with enforcement program has been the focus of numerous top-quality studies and has been adopted by courts across the nation. One study conducted in 2007 by researchers from Pepperdine university and the university of California, Los Angeles, found that probationers who participated in the program were fifty-five per cent less likely to be arrested for a new crime. They were also seventy-two per cent less likely to use drugs, sixty-one per cent less likely to miss appointments with their supervisory officers, and fifty‑three per cent less likely to have their probation revoked. As a result, these probationers served an average of forty-eight per cent fewer days in incarceration than the control group. Notably, the study found that while probationers in the program and those on regular probation served approximately the same number of days in jail, probationers in the program spent half as many days in prison for revocations or new convictions. Additionally, women in the program failed at probation and went to prison fifty per cent less often than women on regular probation. Similarly, native Hawaiians in the program were forty-two per cent less likely to have their probation revoked and to be sent to prison when compared to native Hawaiians on regular probation. Hawaii opportunity probation with enforcement participants were also more likely than other prisoners to receive early termination of probation for successful compliance with all terms and conditions of their probation.

The legislature finds that the State has had substantial success with this program, in terms of less crimes committed, less need for long-term incarceration, and increased productivity, self-esteem, and overall well-being for program participants. The program is also cost-effective, since a single dedicated judge can supervise more than two thousand felony probationers. Given these successes, the legislature believes that this program should be implemented on a broader scale, in a format that has already proven effective.

Accordingly, the purpose of this Act is to implement the Hawaii opportunity probation with enforcement program statewide. The goal of the program is to reduce crime, recidivism, and mass incarceration while supporting probationers' desire to be contributing, law-abiding citizens, through a combined system of accountability and treatment options.

SECTION 2. (a) There is established the Hawaii opportunity probation with enforcement program to help participants comply with conditions of supervision, succeed on probation or deferral, and avoid going to prison. The program shall follow the Hawaii opportunity probation with enforcement model, as developed and implemented in the city and county of Honolulu from 2004 through 2019. The program shall be administered by the judiciary, in consultation with the office of the public defender and the prosecuting attorneys for the counties of Hawaii, Maui, Kauai, and the city and county of Honolulu.

(b) The purpose of the program shall be to reduce recidivism by having the court, attorneys, and probation officers work together closely to:

(1) Hold participants immediately accountable for probation or deferral violations;

(2) Provide swift, certain, consistent, and proportionate jail sanctions for probation or deferral violations;

(3) Provide support and accountability by offering:

(A) Probation officers trained in evidence-based practices;

(B) A judge knowledgeable about addiction who will encourage the participants but also be firm and hold participants accountable for their actions; and

(C) A swift, certain, consistent, and proportionate sanctions system to help keep participants sober and ensure that participants see their probation officers and treatment providers, if needed;

(4) Coordinate with various treatment programs, including sex offender treatment, mental health treatment, substance abuse, treatment, and domestic violence intervention;

(5) Implement randomized drug testing for appropriate participants; and

(6) Focus on higher-risk participants to achieve the biggest gains in reducing recidivism.

(c) The court shall hold hearings at the circuit court of the applicable circuit, with both a prosecuting attorney and the participant's defense attorney appearing at each hearing. To promote consistency, one primary judge and one backup judge shall be assigned to implement the program in each circuit.

(d) Participants shall be admitted to the program at the discretion of the court or their assigned probation officer, based upon a determination by the court or assigned probation officer that the participant is likely to benefit from the program.

(e) After admission to the program, each participant shall attend a Hawaii opportunity probation with enforcement warning hearing with the judge, who shall inform the participant of the:

(1) Overall goals and expectations of the program, including the fact that the court, probation officer, prosecuting attorney, and defense attorney are working together to help the participant succeed on probation or deferral;

(2) Terms and conditions of probation or deferral that, if violated, will subject the participant to jail sanctions;

(3) Swift, certain, consistent, and proportionate jail sanctions to be imposed in the event that that participant violates the terms and conditions of probation or deferral;

(4) Ability of the judge to terminate the participant's probation early upon a finding that the participant has been in compliance with probation conditions for at least two years;

(5) Specific rules and expectations relating to randomized drug testing; court appearances; scheduled meetings with the probation officer; treatment participation, as required by the terms or conditions of the participant's probation or deferral; and compliance with all other terms and conditions of the probation or deferral; and

(6) The potential that, if conditions are violated, probation could be revoked or the deferral set aside, and the participant re-sentenced to incarceration pursuant to sections 706-625 or 853-3, Hawaii Revised Statutes.

(f) The probation officer assigned to a participant shall file a motion to enlarge the conditions of probation or deferral pursuant to section 706-625 or 853-1, Hawaii Revised Statutes, or revoke probation or set aside deferral pursuant to section 706‑625 or 853-3, Hawaii Revised Statutes, if the participant violates the terms and conditions of probation or deferral by testing positive for drugs, refusing to satisfactorily participate in treatment, failing to meet with their probation officer as scheduled, or violating other terms and conditions.

(g) The probation officer assigned to a participant shall conduct randomized drug testing of appropriate participants. If a positive drug test occurs and the participant admits to using drugs, the probation officer shall:

(1) Immediately take the participant into custody;

(2) File a motion to enlarge the conditions of probation or deferral pursuant to section 706-625 or 853-1, Hawaii Revised Statutes, or revoke probation or set aside deferral pursuant to section 706-625 or 853-3, Hawaii Revised Statutes; and

(3) Schedule a court hearing to be held two business days after the positive drug test result.

(h) At any hearing on a motion to enlarge the conditions of probation or deferral, revoke probation, or set aside deferral, the participant shall be represented by a defense attorney, and shall have the right to contest the alleged violation pursuant to section 706-625, Hawaii Revised Statutes. The standard of proof for any contested hearing shall be a preponderance of the evidence.

(i) If the court finds that enlargement of the conditions of probation or deferral is warranted, the court shall enlarge the participant's sentence as follows:

(1) For failing to appear for an appointment or drug test as scheduled but appearing within twenty-four hours of the missed appointment or drug test, and testing negative, no more than seven hours of confinement in the courthouse cellblock;

(2) For a positive drug test result, following which the participant admits drug use, two days of jail;

(3) For a positive drug test result, following which the participant denies drug use, and the positive result is confirmed by a laboratory, fifteen days of jail;

(4) For failure to provide a sufficient urine sample for drug testing as directed, fifteen days of jail;

(5) For tampering with the drug testing procedure, including but not limited to providing diluted samples, using urine adulterants, or swapping or otherwise providing altered samples, thirty days of jail;

(6) For failure to appear for an appointment or drug test as scheduled, following which the participant does not appear within five or more days after the missed appointment or drug test, thirty days of jail; and

(7) For conviction of a new crime, failure to attend or complete treatment, or other violations of the terms and conditions of probation or deferral not otherwise specified, either a period of jail to be determined by the court, or revocation of probation or setting aside of the deferral.

(j) For purposes of this Act:

"Defense attorney" means any attorney retained, appointed, or ordered to represent the participant, including the public defender or any deputy public defender.

"Deferral" means deferred acceptance of guilty or nolo contendere plea pursuant to section 853-1, Hawaii Revised Statutes.

"Jail" means any type of detention administered by the department of public safety, or its successor agency.

"Participant" means a defendant who has either been convicted of a felony offense or placed on deferral and who has been accepted for placement in the Hawaii opportunity probation with enforcement program.

"Prosecuting attorney" means the prosecuting attorney or any deputy prosecuting attorney for the applicable county.

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________
	By Request

HOUSE OF REPRESENTATIVES	H.B. NO.	122
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII