HB1549

SECTION 1. The legislature finds that, in 1979, the federal Drug Enforcement Administration promulgated a Model Drug Paraphernalia Act, which led to the criminalization of drug paraphernalia under the laws of most states, including Hawaii.

The legislature further finds that a growing body of legal and public health scholarship has called for the repeal of state drug paraphernalia laws. A November 2019 article published in the American Journal of Public Health concluded that the full and immediate repeal of drug paraphernalia laws is warranted to reduce opioid overdose deaths and related harms and would free scarce public resources for evidence-based approaches to reducing drug-related harm. Similarly, an October 2022 article published in the New England Journal of Medicine characterized drug paraphernalia laws as harmful and unnecessary, finding that such laws reduce access to safer-use supplies and are enforced disproportionately against people of color and other marginalized groups. That article further urged federal leadership to encourage the repeal of drug paraphernalia laws and to shift the legal environment from one that stigmatizes and criminalizes people who use drugs to one that prioritizes their agency, dignity, and health. More recently, an October 2024 column published by The Network for Public Health Law advocated for the repeal of state drug paraphernalia laws, citing worsened health outcomes associated with continued criminalization.

The legislature notes that leading public health organizations have long recognized the harms caused by criminalization-based drug policy. In its 2013 policy statement, Defining and Implementing a Public Health Response to Drug Use and Misuse, the American Public Health Association described the current "war on drugs" as a severely flawed approach based on misplaced priorities and strategies, and observed that the domestic drug war has been an engine of mass incarceration. It further concluded that criminalization of substance use stigmatizes people who use drugs, making it more difficult to engage them in health care and other essential services, and therefore recommended a full policy reorientation, including the end of criminal penalties for drug possession and the decriminalization of people who use drugs.

The legislature recognizes the substantial evidence linking incarceration itself to poor health outcomes. A 2018 report by the Robert Wood Johnson Foundation, Mass Incarceration Threatens Health Equity in America, found that incarcerated individuals face greater risks of chronic health conditions both during incarceration and long after release. The report further documents that incarceration exposes people to conditions such as poor sanitation and ventilation and the use of solitary confinement, all of which are detrimental to long-term physical and mental health.

As a result, some states have begun to reevaluate their approach to drug paraphernalia laws. In 2023, Minnesota became the first state to repeal its drug paraphernalia laws entirely. Hawaii has also taken steps toward reform. Act 72, Session Laws of Hawaii 2017, reduced the offense of simple possession or use of drug paraphernalia from a class C felony to a violation, punishable by a fine of no more than $500.

Despite this reform, possession of drug paraphernalia continues to serve as an entry point into the criminal legal system. Possession of even unusable traces or residue of certain controlled substances, often found on drug paraphernalia, remains classified as a class C felony, carrying a potential penalty of up to five years' imprisonment and a $10,000 fine.

Furthermore, Hawaii continues to maintain some of the longest probation terms in the nation. According to a December 2020 report from the Pew Charitable Trusts, States Can Shorten Probation and Protect Public Safety, Hawaii has the longest average term of probation in the United States at fifty-nine months, well over twice the national average of just under two years and six times the average term of Kansas.

Significant disparities persist throughout Hawaii's criminal legal system, reflecting broader patterns of unequal treatment and enforcement. Drug law enforcement in Hawaii, like the larger operation of the criminal legal system, continues to disproportionately impact Native Hawaiian residents and families. People from under-resourced communities, including those who are unhoused, are also subject to disproportionate involvement in the criminal legal system across the State.

In recognition of these ongoing racial inequities, the legislature adopted House Concurrent Resolution No. 112, S.D. 1, Regular Session of 2021, unequivocally declaring racism to be an ongoing public health crisis and committing to "dismantle all forms of racism [and] its impacts on the delivery and implementation of human and social services, economic development, health care, and public safety".

This Act is intended to help ensure the efficacy of Hawaii's ongoing public health efforts to prevent accidental and fatal overdoses and the transmission of the human immunodeficiency virus (HIV) and hepatitis C; facilitate the expansion of harm reduction-based interventions for under-resourced populations; and reduce the involvement of individuals with behavioral health challenges in the State's criminal legal system, which disproportionately impacts Native Hawaiian residents and families.

The purpose of this Act is to repeal the law prohibiting drug paraphernalia under the uniform controlled substances act.

SECTION 2. Section 325-21, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) The sale or purchase of sterile hypodermic syringes under subsection (a) shall not constitute [an] a criminal offense [~~under section 329-43.5~~]."

SECTION 3. Section 325-114, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(a) Possession or delivery of needles or syringes shall not constitute [an] a criminal offense [~~under section 329-43.5~~] for program staff acting in the course and scope of official duties; provided that delivery is limited to other program staff or to syringe exchange participants pursuant to this part. Possession of needles or syringes shall not constitute [an] a criminal offense [~~under section 329-43.5~~] for syringe exchange participants participating in a program visit.

(b) Possession or delivery of authorized objects shall not constitute [an] a criminal offense [~~under section 329-43.5~~] for program staff acting in the course and scope of official duties; provided that delivery is limited to other program staff or to syringe exchange participants pursuant to this part. Possession of authorized objects shall not constitute [an] a criminal offense [~~under section 329-43.5~~] for syringe exchange participants participating in a program visit. The department shall establish a specific list of authorized objects, which may be updated from time to time as needed."

SECTION 4. Section 353-66, Hawaii Revised Statutes, is amended by amending subsection (f) to read as follows:

"(f) The Hawaii paroling authority may require a paroled prisoner to undergo and complete a substance abuse treatment program when the paroled prisoner has committed a violation of the terms and conditions of parole involving possession or use, not including to distribute or manufacture as defined in section 712-1240, of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712-1240, or unlawful methamphetamine trafficking as provided in section 712-1240.6[~~, or involving possession or use of drug paraphernalia under section 329-43.5~~]. If the paroled prisoner fails to complete the substance abuse treatment program or the Hawaii paroling authority determines that the paroled prisoner cannot benefit from any substance abuse treatment program, the paroled prisoner shall be subject to revocation of parole and return to incarceration. As a condition of parole, the Hawaii paroling authority may require the paroled prisoner to:

(1) Be assessed by a certified substance abuse counselor for substance abuse dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index;

(2) Present a proposal to receive substance abuse treatment in accordance with the treatment plan prepared by a certified substance abuse counselor through a substance abuse treatment program that includes an identified source of payment for the treatment program;

(3) Contribute to the cost of the substance abuse treatment program; and

(4) Comply with any other terms and conditions for parole.

As used in this subsection, "substance abuse treatment program" means drug or substance abuse treatment services provided outside a correctional facility by a public, private, or nonprofit entity that specializes in treating persons who are diagnosed with having substance abuse or dependency and preferably employs licensed professionals or certified substance abuse counselors.

Nothing in this subsection shall be construed to give rise to a cause of action against the State, a state employee, or a treatment provider."

SECTION 5. Section 706-622.5, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) Notwithstanding section 706-620(3), a person convicted for the first or second time for [~~any offense under section 329-43.5, except offenses under subsections (a) and (b) of that section which constitute violations, involving the possession or use of drug paraphernalia or~~] any felony offense under part IV of chapter 712 involving the possession or use of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712‑1240, but not including any offense under part IV of chapter 712 involving the distribution or manufacture of any such drugs or substances and not including any methamphetamine offenses under sections 712‑1240.7, 712‑1240.8 as that section was in effect before July 1, 2016, 712-1241, and 712-1242, [is] shall be eligible to be sentenced to probation under subsection (2) if the person meets the following criteria:

(a) The court has determined that the person is nonviolent after reviewing the person's criminal history, the factual circumstances of the offense for which the person is being sentenced, and any other relevant information;

(b) The person has been assessed by a certified substance abuse counselor to be in need of substance abuse treatment due to dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index; and

(c) Except for those persons directed to substance abuse treatment under the supervision of the drug court, the person presents a proposal to receive substance abuse treatment in accordance with the treatment plan prepared by a certified substance abuse counselor through a substance abuse treatment program that includes an identified source of payment for the treatment program."

SECTION 6. Section 706-625, Hawaii Revised Statutes, is amended by amending subsection (6) to read as follows:

"(6) The court may require a defendant to undergo and complete a substance abuse treatment program when the defendant has committed a violation of the terms and conditions of probation involving possession or use, not including to distribute or manufacture as defined in section 712-1240, of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712-1240, or unlawful methamphetamine trafficking as provided in section 712-1240.6[~~, or involving possession or use of drug paraphernalia under section 329-43.5~~]. If the defendant fails to complete the substance abuse treatment program or the court determines that the defendant cannot benefit from any other suitable substance abuse treatment program, the defendant shall be subject to revocation of probation and incarceration. The court may require the defendant to:

(a) Be assessed by a certified substance abuse counselor for substance abuse dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index;

(b) Present a proposal to receive substance abuse treatment in accordance with the treatment plan prepared by a certified substance abuse counselor through a substance abuse treatment program that includes an identified source of payment for the treatment program;

(d) Comply with any other terms and conditions of probation."

SECTION 7. Section 329-43.5, Hawaii Revised Statutes, is repealed.

["~~§329-43.5 Prohibited acts related to drug paraphernalia.~~ (a) Except as provided in subsection (e), it is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter. A violation of this subsection shall constitute a violation subject to a fine of no more than $500.

(b) Except as provided in subsection (e), it is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia, knowing or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter. A violation of this subsection shall constitute a violation subject to a fine of no more than $500.

(c) Any person eighteen years of age or over who violates subsection (b) by delivering drug paraphernalia to a person or persons under eighteen years of age who are at least three years younger than that adult person is guilty of a class B felony and upon conviction may be imprisoned pursuant to section 706-660 and, if appropriate as provided in section 706-641, fined pursuant to section 706-640.

(d) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any person who violates this section is guilty of a class C felony and upon conviction may be imprisoned pursuant to section 706-660 and, if appropriate as provided in section 706-641, fined pursuant to section 706-640.

~~(e) Subsections (a) and (b) shall not apply to a person who is authorized to:~~

~~(1)~~ Acquire, possess, cultivate, use, distribute, or transport cannabis pursuant to the definition of "medical use" under section 329-121, while the person is facilitating the medical use of cannabis by a qualifying patient; or

~~(2)~~ Dispense, manufacture, or produce cannabis or manufactured cannabis products pursuant to and in compliance with chapter 329D, while the person is facilitating the medical use of cannabis by a qualifying patient pursuant to part IX of chapter 329."]

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect upon its approval.

INTRODUCED BY:

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HOUSE OF REPRESENTATIVES	H.B. NO.	1549
THIRTY-THIRD LEGISLATURE, 2026
STATE OF HAWAII