The first response doesn’t even pretend to care about what’s going on.

Then they connect you, and then they start asking you questions. 5 seconds, ten seconds. Enough for a crime to be committed, for people to escape. More importantly, enough time for the attacked to swat the cellphone out of your hand. By talking you draw attention from the criminal to yourself as the most dangerous person in the room. You’re the one bringing the police. The most dangerous outcome for society is when it is more rewarding for us to protect ourselves than each other. That’s the endpoint on the road to anarchy.

And that’s not where it stops. THEN they start asking you questions: “Where are you? What does he look like? Tell me more? What did you say? Could you spell that?” I’ve listened to literally hundreds of 911 calls. It is like they are trained to keep you on the phone FOREVER. When the best thing by far is to say “Okay, run.” They want to ask questions until they are blue in the face.

You know, when you’re hiding in the closet and trying to be quiet, the state doesn’t even accept text messages. DUI attorneys accept text messages. I’m hoping the Government becomes at least as advanced as them.

Honolulu 911 Solutions

By now hopefully we realize the way we operate is not to only point out a problem, but to offer a solution. So here’s the solution, the Honolulu 911 APP! Clearly, in our society of cellphones and smartphones. Of Galaxies and iPhones and HTC and SONY there is no reason we should still be using 911 technology from Alexander Graham Bell.  Now what follows is designed for Honolulu 911, but really it could work for any wired metropolitan city.

Start with the big three:

Who, where, when

1. The message can automatically send the phone number, and name associated with the phone to whoever receives the text messages.
2. Yelp knows where you are. AroundMe knows where you are. GoogleMaps knows where. Clearly this app could send your location.
3. And the exact time you sent it would log in the record.

and the big three are taken care of!

Precise information for Honolulu 911

Clearly there’s more precise Information that needs to be told to the officers.  Two things happen. ONE, we decide what that is in advance and we can put that ON THE PAGE, that minimizes time to process the information. Already after the case we ask witnesses to fill out statements and ask particular questions

911 Speed

If we really sit down and think about it, for many, the speed of typing on the phone has long surpassed the the speed of talking, answering questions, and processing information. Watch any kid send on a phone three sentences of info (or three paragraphs) and at the same time say the same three things and ask the next person to process it and filter it into the right categories. The typing will win every time. And these are our next generation of witnesses!

Outlay of the 911 App

First, look at the top three buttons:  Police, Fire and Ambulance. These are the big three and they’re clickable. what that means is, you can request one, two, or all three.  No information is sent until the SEND button is pressed in the lower Right corner. These buttons are clearly not binding on the dispatcher who would respond to the message, but merely advisory. This is included since the very first question you are asked when you call 911 is “Police or Ambulance”. A large part of the purpose of the app is to get around the lag time it takes to process that first question and direct you the right way. Especially

when for very serious crimes the answer is YES.

Then we move to the second row of Honolulu 911 App buttons

The second row is our optional buttons. These are designed to help whoever the dispatcher is give more information to whoever the first responder is going to be. While not mandatory, these are the helpful questions that would keep you on the phone for a thousand years The second row first includes a spinner that lays out a number of different potential reasons to call for an emergency responder.

These are just advisory, and broad messages, clearly the police would need to decide on the final list. I would point out, maybe 10 should be the maximum. We don’t want people getting lost in lines of words they need to bifurcate.

Photo and Sound Clip are a little more time consuming, which is why they are optional.  Clearly Photo is important. Since much of the thought behind this app is to reduce words and processing time, and one picture is worth a thousand words, the picture option needs to be present. Imagine the benefits to having a picture of a. the scene, b. the offender, c. the victim, d. ANYTHING. Currently the design is one picture per message. If you need multiple pictures, use multiple messages.

Sound Clip is if you don’t want to type or are poor at typing or if the actually sound of what’s happening is most important.  Imagine if, during listening to your neighbor’s husband threaten her, you were able to record the threat and then did not have to actually appear in court to testify. Imagine if, during the heat of passion, you could witness by just recording the occurrence and sending it in.

I would suggest 1. the recording be processed the same way Google Voice processes their messages in a sense to get a typed version instantly. But also 2. It is preserved digitally as a sound file, in order to be used affirmatively in a prosecution. A voice recording is even better than a picture when it comes to independent  verifiable evidence. It is very hard to say that a recorded threat never happened. It is very hard to say a police officer told you to record a certain statement (where it is very common to say that on a written statement. “I am willing to prosecute” anyone?)

Finally the third row: A text box and a SEND button. The text box is the same as any other app you can write in. You have the keyboard, on the iPhone 5 or equipped phones you can type via voice. And the SEND, here shown with a little envelope signal. In the time it makes to hit three clicks, someone has your location, information, and identifying factors they need to initiate a life-saving procedure. And that’s what every step of this conversion needs to be about. What can we do to save more lives.

Evidentiary rules

When I first proposed this solution the pushback I immediately got from people in the know is “How does this get around the Rules of Evidence? This is all excludable evidence.” Which is a valid worry, but let’s answer it.

1. It’s not. It’s clearly all “present sense impression” and admissible the same way any Honolulu 911 call would be. In fact, it is more admissible, since a 911 call includes a government employee asking questions. The App in this case would by an uninvited communication, and obviously an excited utterance.
2. Who cares! 911 is about saving lives, not catching criminals. That’s what it has to be about. It has to. Let’s not forget that.

Honolulu 911 App: In Closing

Now I don’t have the computer background to actually program this APP, but I have the legal experience to say what is necessary and what is extraneous. I suppose the next step is asking the Police department, or the city, or the State to get on board with some financing.  Or maybe just a computer programmer somewhere who wants to go a good deed and make things smooth for the next generation. Or if doing good things is not persuasive, maybe someone who just wants their code to take over the world. You want to talk about disruptive, explosive growth? Think about it, this is an App that should really come standard with every phone.This app is coming soon, who’s going to make it. Or make it well?

Punishment in Hawaii

Punishment in Hawaii is heading the wrong direction, is an opinion I’ve long maintained. So when I woke up today to an article talking in depth about punishments that largely mirror my own views I was excited. Everyone I know in the system who takes time to talk to criminal defendants comes to one conclusion early on: To a person in prison, there’s not much difference between ten years and twenty years. It is all unforeseeable time to them. Quite frankly many of them are surprised to live as long as they have. When you grow up surrounded by gang members, prison is simply a stop on the road to expected early death.

So why do we insist on keeping our children in prisons until they become our fathers? Grandfathers?

No one is denying crime exists. Or that real crime deserves real corrective punishment. No one disagrees that when other people on our island hurt or steal or trespass against us they need to be taught, or re-taught, that such a thing is not allowed. Whether by fine, by community service, through classes and counseling, or through incarceration, talking softly only works when someone is carrying a big stick. A few days in the judicial system and you realize talking loud never works.

Inherent Worth in the Criminal

The first thing we have to agree upon is that there is some inherent worth to society of these incarcerated people. Let’s be very clear, we’re keeping them alive for a reason. If there is no inherent value to society in our inmates, they need to be killed. Period. We’re investing our time and dollars because we want something back from them. Maybe work, maybe intelligence, maybe just love and support for their families. So there is something there. And if there is something there, our next question is, how can we maximize the utility of whatever we want from them. How do we do that for punishment in Hawaii.

Is it locking them up until forever and a day? Well there’s different thoughts, let’s look at a couple:

Different punishments in Hawaii

Prostitution and punishment in Hawaii

Men

I’ve talked all of us blue in the face with what I see as the problems with the proposed prostitution amendments and how they will over-punish for prostitution. About how they take a crime, being a John and want to increase the punishment ad nauseum. I’m slightly surprised no one has suggested thumbscrews yet for men so brash as to ask a woman, dressed for prostitution, how much she charges. Part of the question is what is the social utility of not only branding these men with the criminal seal, but also requiring them to miss 30 days of work, lose their job, lose their means of supporting their family, and have to explain to their children where they went.

Understand, this is not a deterrent unless they know about this. Know about this before they got drunk and stumbled back to a hotel and on the way back an attractive female dressed in sex approaches them and turns out to be an officer. And yes, that is quite a few cases, not the exception.

Women

And remember equal protection and women’s rights? Every time you raise the penalty for men, guess what, you raise the penalty for women. And there is one thing law cannot do, erase the 2000 year old social stigma in Christian societies on the prostitute. These laws will have, at the top of every resume forever, a brand that says she carries a prostitution charge. And, when she gets out of jail, and the pimp is waiting, do we think he’s going to give her credit on 30 days of payments. She gets beaten to make up the money.

No one who asks to increase the penalty for prostitution has any compassion for prostitutes. Period.

New marijuana law and easing punishment in Hawaii.

Let’s talk about the opposite issue. Currently the debate in Hawaii is whether we decriminalize marijuana. The argument being that somehow people “getting away with” smoking marijuana is “getting one over” on society. But the question goes back to the basic utility of what should be allowed in America. Or more importantly, what should be allowed to stop your growth for the future. As if people who smoke marijuana, as minors, cannot grow up to be anything important.

Of course they can. But should the failure to avoid arrest be enough to stop your admission to college, Harvard Law School, even  the Presidency? Hawaii’s movie in the right direction. Stop ending lives prematurely by marking people with a criminal conviction for something so manini.

The secret about most crimes:

“The progressive tendency is to fixate on the plight of those punished rather than the plight of those victimized, though of course these are often the same persons under different labels or at different moments.”

Ready for the secret? Almost all felony trials in Hawaii are over drugs. Very rarely do we see a case where the complainant is virgin white. People learn to be bullies by being bullied. People learn how to steal cars because someone who is successful at stealing cars shows them how to better their life. I became a lawyer because I watched a lawyer save my fathers life.

 The Right direction: HOPE in Honolulu

At this point in the essay, I was thinking, Mark Kleiman would really like J. Alm’s HOPE program. And then I read the next paragraph:

“HOPE: The obvious (but hard-to-administer) common-sense alternative is to make the rules less numerous, the monitoring tighter, and the sanctions swift, certain, and reasonably mild, and to clearly tell each probationer and parolee exactly what the rules are and what exactly will happen, every time and right away, when a rule is broken. Mildness—or proportionality, if you like—is essential to making the threat credible, and severity turns out to be unnecessary. Experimental evidence from the HOPE program in Hawaii showed that two days in jail is as good a deterrent to drug use as six weeks, as long as the two days actually happen, and happen every time. We don’t know yet whether a day in jail, or a couple of hours in a holding cell, or a weekend of home confinement, or a week of a 9 p.m.-6 a.m. curfew, would do the trick, but we ought to learn.”

I wholly disagree with the idea that it is hard-to-administer less rules. In fact the situation is much easier than having every violation require a long complicated penalty. But the we can’t argue with the facts and the science. If we can get the same punishment from two days of jail that we can with six months of jail, keeping someone in jail for six months is not only inhumane, it minimizes social utility.  With luck HOPE will increase use across the island.

Read more about hope here

Let me close with a story.

Whenever we talk about proportionality and punishment in Hawaii I tell this story. Now, it’s a story about a loss, and I don’t normally tell those, but I’m honest as much as you can expect from a lawyer so I’m going to be honest about this one:

It was a harassment case, short, one hour trial that resulted from a domestic violence situation between a couple with two kids.  In the State of Hawaii, think of harassment like an “assault” where no one gets hurt. Just someone touches another person in a way they shouldn’t, pushes them out of the way or pokes them annoyingly. Like that.

Well the basic defense was, the guy just wanted to get into his car. The female wouldn’t move, he moved her out of the way. There was a question about how hard it was and whether it was warranted or not, but the when the judge brought down the gavel he said “GUILTY”. Man, I hate that word when I’m the defense attorney. And I was angry, I didn’t think he was guilty!

But then the judge said something else, very quickly. “SENTENCE: $100.”

“WHAT!” the Prosecutor and I both yelled out. A conviction for a case like this comes with jail time. He harassed the mother of his kids. We’ve been trained to expect at a minimum a week.

The Prosecutor went in “Judge, we need jail. At a minimum anger management and domestic violence!”

“Nah,” the Judge said, “He feels bad. It’s not going to happen again. It was just that one particular situation.”

And I thought to myself wow, I guess he is about one hundred dollars worth of guilty!

Earlier this week I sat down with the Pacific Alliance to Stop Slavery. After explaining everything to them, After their representative saying they AGREE with me on my point about the law, they amended a PART of their petition (to something that is still wrong). But the first sentence of their petition is still WHOLLY A LIE. It’s absolutely not true. I showed EXACTLY where in the law they can “detain juveniles without criminalizing them”, and they prefer to keep it as the lead in their petition. Probably because it is effective. It is only effective to people who don’t know what the law reads.

Basically there have three responses once they are made aware:

1. “Marcus, we won’t change it because you read the law wrong. HERE IS WHY you read the law wrong, HERE IS WHERE the law says something different than what you say.”
2. “Marcus, you read the law right, so we will change the petition to be intellectually honest.”
3. “Marcus, its a great pitch, why should we change it?

Guess which they’re going with so far? Change it to be honest with the people you’re attempting to convince. They’ll quote you, they’ll then get corrected. Then they’ll blame you for leading them on..

(and the one edit they did make is wrong, here is the correct chart of the park closure vs. prostitution punishments:)

Intellectually disingenuous.

As a good lawyer friend of mine wrote me, “Even if it did have the same penalty as sleeping in the park, how’re they going to feel when they succeed and it has the same sentence as putting the wrong sticker on your taxi cab!”

The Pacific Alliance to Stop Slavery Update
At the end of the last blog post I put something of a challenge I suppose, to PASS to contact me if they truly wanted to have a conversation to solve the issue of Prostitution in the state of Hawaii. One person, who I assume is a member but seemed to be a head of a different, unrelated, lobbying group came to my office and met with me for about an hour and a half. The conversation was nothing if not overly cordial, everyone very apologetic meaning not to step on toes.

I left the meeting learning a number of things about this group. This is my impressions, and again, I hope they prove me wrong:

1. Their passion for the topic has not driven them to learn about the topic – And to be clear, I don’t mean to learn about statistics or backgrounds about prostitution itself, clearly they know that. But they’ve done nothing to research criminal law or penal theory. They seem to not even read the law themselves sometimes. Understand this: It appears they don’t even read the laws they’re trying to change.
2. They seem to think laws are the answer — The government may not be the best answer to this problem. Instantly helping exploited people who naturally don’t trust the government (especially if they’re from a country for whom “government” is synonymous with “winning gang”), vesting all control in the government may be wrongheaded. An NGO with the proper thrust may be a better solution.
3. They have a problem with language — They insist on using “trafficking”, when their meaning of trafficking is AT BEST the third definition you associate with that word. They insist on using “slavery”, which places them in the double bind of competing with and comparing to the middle passage, Dred Scott, and multiple wars that tore our country at its very soul. Using the word “prostitution” or “exploitation” are both just as descriptive and not nearly as loaded towards a incongruent meaning.
4. Most importantly, They believe what they want to believe – When the prosecutors tell them that certain laws mean certain things, they don’t check into it, they take it as gospel. When the prosecutors tell them certain statistics or certain ideas they seem to decide that those are inflated/suppressed and investigate more. Compare this to the Police Detective with the suspect who makes eleven hours of statements saying he didn’t do something, and the final hour agreeing with the Detective that he did. Guess which statement goes in the police report. Think it doesn’t happen? Check out Jessie Miskelley and the West Memphis Three. Twenty years on Death Row, largely because the police didn’t believe the denials but chose to believe the confession; because the police wrote the confession. They accept answers they want to accept, when it matches their desire.
5. I also think there might only be one or two people in the “group”. And while their one-sentence mission is powerful, the rest of the essay is paper thin.

The conversation
But to be very clear, it was a nice happy conversation. During the conversations I made some suggestions for what I think would help prosecute the crime of prostitution in the State of Hawaii, but that’s just me. Rather than let these vanish to our conversation, I wanted to put these out in the ether, and maybe a city councilperson can steal it and make something good with it.

This post is going to veer away from my usual topic, how great I am, and veer more into sentencing policy. What should a people think about when they’re setting a sentence.

Changing individuals, changing society
First and foremost thing to remember: Punishment does not change behavior, Fear of punishment changes behavior.
Think about children you see and children you know. It is the ones who are threatened, or who get spanked only once in a great while that are best behaved. The children that are spanked for anything? Often the worst behaved. Why? It’s not the cycle of crime or violence. It is because the children that face punishment for everything, know there is no way to fix their behavior. Facing the inevitability of punishment there is no benefit to acting correctly. The outcome is the same. It is the fear of punishment (actually, fear of pain/discomfort, and punishment is controlled pain/discomfort) that causes beings to change their behavior.
As I explained to the representative of PASS, Increasing the penalty means nothing to the John, because they’re not afraid of the penalty, they feel they won’t get arrested. Increasing the threat of a subsequent penalty means everything to a john, because now you know exactly what is expected from you, and how real the punishment is.

Think of it like this: States with the death penalty do not have lower crime rates. People don’t say, “well, I would kill him, but that’s life in prison, so cause massive injury, and do 20”. People commit the crime and then regret the punishment.

The Goal: I still am a little suspicious about the true goal of the Pacific Alliance to Stop Slavery. I really think it is to somehow get revenge on “johns”. This is not meant to be an attack, but it is based on how they handle their business and what they promote. My gut feeling is that actually repairing the prostitutes is a second place goal to punishing the johns involved. I explained to them, as I do to you now, my goal is to make life safe for the prostitutes, and I mean that in every way.

My main question to the person I met was this: “How is the law you’re promoting meant to help the girl you’re trying to protect.” i.e., how does a law that punishes Men worse stop an abusive John? How does it help that prostituted female receive medical or protective services from the government? It really doesn’t. But if that is what you’re concentrating your time on, what is your real goal? No matter what you’re stated goals are.

The first suggestion is Prostitution Court: Heard of Drug Court? We copied it and flipped it and went with girls court and soon to be announced Veteran’s court. Why not Prostitutes court. If you’ve completed prostitution court, your record becomes clean, and you’ve complete all the services that guarantee you’ll never do that again. Model it on Drug court. Solved. Women receive services they need, and once they complete those services they do not carry a conviction on their record.
Doesn’t this sound closer to the stated goal of helping trafficked women?

John School:
For the Johns, the End Demand is really about the dumbest bill I’ve heard of it awhile. From top to bottom, it is based on lies and does nothing to actually help prostitutes. Nothing. What it does is make a navy guy walking down the street with his buddies who yells at a passing streetwalker, “Hey, how much are YOU!” IT makes him face a stiffer sentence, destroys his career, and why? You tell me.

Instead of juicing up the penalty to the point where every John has to pay defense attorney a small mint, instead give them a chance to take it off their record. “What what WHAT!” I hear the members of PASS explode. Here’s why: The way they take it off their record is by attending “John School”. And guess who gets to set the criteria. How about the Pacific Alliance to Stop Slavery? Sounds about right…

Remember what we said, Punishment does not change behavior, fear of punishment does. So the MOST important question in changing these laws is asking “Where is the fear coming from”. Because wherever that is, that is what is going to get the most attention from the John. If you juice the penalty, the fear is coming from the trial and the judge and the guilty verdict and they’ll spend their time and money to answer to fight the case. If the fear can be alleviated through erasing the conviction to the successful graduate through the proposed “John School” diversion program. Guess where ALL the energy goes, passing, learning and PARTICIPATING in the John School. And of course only once, if you’re likely to recommit no way do you get special dispensation.

Fear of the rod is a much better rod than the rod itself.

Decriminalization:

But by far, the most important point is that as long as a prostitute cannot be honest with a doctor about her job. As long as she cannot be honest with the police without admitting to a crime. As long as these things happen, you will almost never get her pimps. (They define a separate word as “abolition” on their website. It is a creative straw-man definition battle which is not relevant to this conversation.) Because:

1. She has to expose herself to jail to get medical care.
2. She has to expose herself to jail to get social services or police protection.
3. If she gets immunity to help get the pimp, she is immediately suspect, because she is functionally saving her own butt from jail to incarcerate the pimp. Questionable motives is the #1 reason to disbelieve a witness! (I just made that up. But I’m sure it’s top five.)

So if your stated goal is to get a prostitute health care and social services or police protection or to get the actual traffickors rather than the traffickees, why are you not fighting the ONE thing that stands in the way of your stated goal?

The usual answer is because the stated goal is not the actual goal. The actual goal seems to be to punish men.
As my father would say, listen to what people say but let it go in one ear and out the other. It’s what they do that tells you who they are.

With any luck the next post in the series will be the final one, collecting various reactions I got from the community about my engagement with PASS about prostitution and human trafficking. I never meant for this to be a serious, simply an example of when 30 minutes of real legal research could do. (Honestly, more like 10 minutes). If you have something related to this you’d like me to say or read, please feel free, as always, to post below or mail it to me and I will keep it confidential.

And as always I invite PASS to respond, to any of the criticism, here, or if they feel more comfortable, they can address it in a forum they control. Or they can ignore it.
Or hell, let’s get two podiums and an audience. I feel froggy…

I read something on a friend’s webpage today, a friend who I trust and respect to use the brain and best judgment. And when I read it, it literally blew my mind.

I. Here is where I lose friends.

What I’m talking about is a petition by the Pacific Alliance to Stop Slavery, read it first here: http://www.change.org/petitions/pass-safe-harbor-end-demand-for-prostitution-laws-in-hawaii. Read that first for the context. I don’t think I’ve thought this hard about potential new laws since the Food Truck mess. I would point out, after my post on Bill 59 (still one of the most popular posts on my minor webpage) Tulsi Gabbard took the bill back into committee and made pretty much 100% of the changes I advocated. This is tough love. I post this to help you.

After reading that petition and reviewing the PASS – PACIFIC ALLIANCE TO STOP SLAVERY webpage, I immediately reached out through the network of professionals I deal with everyday in the Juvenile justice system. The network includes Prosecutors and Defense attorneys; their experiences and their contacts, including actual cases and Probation Officers. The juvenile justice system in Hawaii is confidential, meaning I can’t betray names or individual cases, but I can talk about specifics using generalities to explain particular points. I’ve also written about the juvenile justice system here before. I have also been published in the Star-Advertiser with my views on the Juvenile justice system.

II. The Pacific Alliance to Stop Slavery Petition:

The very first sentence of that above webpage reads: “Currently, Hawaii has no protocol to legally detain juveniles rescued from prostitution without criminalizing them.” The first sentence is the first misstatement of the law.
Hawaii Revised Statute 571-31 “Taking Children into custody; release; Notice;” reads

“(a) A child may be taken into custody by any police officer without order of the judge when there are reasonable grounds to believe that a child comes within section 571-11(1) or (2)…”

So next we look at Hawaii Revised Statute 571-11(1) and (2). Now it’s true, 571-11(1) is about criminal offenses. Only subsection (2) reads:

(2) Concerning any child living or found within the circuit:

(A) Who is neglected as to or deprived of educational services because of the failure of any person or agency to exercise that degree of care for which it is legally responsible;
(B) Who is beyond the control of the child’s parent or other custodian or whose behavior is injurious to the child’s own or others’ welfare;
(C) Who is neither attending school nor receiving educational services required by law whether through the child’s own misbehavior or nonattendance or otherwise; or
(D) Who is in violation of curfew;

So which of these categories does a child prostitute fall into? I would suggest all of them.

Never mind that the reason for the petition is false, what is the Pacific Alliance to Stop Slavery really requesting?

The Pacific Alliance to Stop Slavery is asking for a “Safe Harbor Bill” which, without defining the actual words in the law, the goal is suggested to “give minors immunity from prosecution and refer these victimized children to proper rehabilitative and healing services rather than to incarceration.”
The Pacific Alliance to Stop Slavery will be glad to know, then, that the proper rehabilitative and healing services rather than incarceration is already the goal.Hawaii Revised Statute 571-1 Construction and purpose of chapter reads in part:

[I]t shall be a policy and purpose of said courts to promote the reconciliation of distressed juveniles with their families, foster the rehabilitation of juveniles in difficulty, render appropriate punishment to offenders, and reduce juvenile delinquency. The court shall conduct all proceedings to the end that no adjudication by the court of the status of any child under this chapter shall be deemed a conviction; no such adjudication shall impose any civil disability ordinarily resulting from conviction; no child shall be found guilty or be deemed a criminal by reason of such adjudication; no child shall be charged with crime or be convicted in any court except as otherwise provided in this chapter; and all children found responsible for offenses shall receive dispositions that provide incentive for reform or deterrence from further misconduct, or both.

Let’s go slower and start with the last part first:
“Proper Rehabilitative and healing services” equal “foster the rehabilitation of juveniles in difficulty” and “all children found responsible for offenses shall receive dispositions that provide incentive to reform or deterrence from further misconduct”.

Now to be clear, there is no “immunity from prosecution” in the law right now. But what is in the law? There is an immunity from conviction. The legislature wanted to impress this so much, they say it the same way at least four different ways. PASS completely misses this distinction with a difference. How would immunity from Prosecution be different to immunity from conviction? I’m not sure in toto. But an important question to ask is, “Is there ever a time you would WANT to prosecute a juvenile prostitute.

When I posed this question to my contacts, I received an answer from a juvenile probation officer via transmitted message, with a resounding “of course”. We’re talking about girls who are 16, 17, about to be 18. Potentially with multiple prior contacts with the system, would you want them to taste what being convicted as an adult would be like? Without actually being convicted like an adult? I would suggest that you would agree, “of course”! No one is using HYCF as a punitive measure. It is actually very functional as a rehabilitative measure. This suggestion of “immunity” would take a tool away from the family courts in dealing with retraining girls to escape their pimps, absolutely not add to it. Under current law the Prosecutor has every right to elect to prosecute or NOT prosecute each case. When Prosecution is a useful tool to teach, they can prosecute, when it is not, the Prosecutor can pass.

So PASS wants you to encourage the legislature to reform in the law, based on falsehood, to something the law already includes. Interesting petition.

III. But that’s not all

So of while the first part of this petition is about ending childhood prostitution and ex-slavery, the petition then conflates another issue and talks about an “End Demand Bill.” Again based on a falsehood and again a horrible idea (at least as presented in context of this petition). Let’s start with the falsehood and then move on to two amazing reasons why this is a horrible idea.

Their statement: “The existing penalty for johns is a petty misdemeanor, equivalent to the fine of riding a bicycle on the sidewalk.” Here’s my understanding of the law (and I’ve done full jury trials quoting bicycle laws):
Honolulu Revised Ordinance Sec. 15-8.7 Riding on Sidewalks: Actually, it’s only in certain circumstances you cannot ride a bicycle on the sidewalk, in most of the island you absolutely can ride on the sidewalk. Okay, let’s say you are in those certain parts of the island where you can’t (i.e., Downtown, Waikiki, etc), the real issue here is, what is the penalty? The best penalty statute I can find is Honolulu Revised Ordinance Sec. 15- 26.9 Unspecified penalty and administrative fine:

“(b) Every person who violates any provision of this traffic code for which another penalty is not provided shall, for a first offense thereof, be fined not less than $15.00, but not more than $100.00; for a second offense committed within one year after the date of the first offense, the person shall be fined not less than $15.00, but not more than $200.00.”

So not only is this not a petty misdemeanor but also the maximum penalty is $100. So let’s turn to prostitution:
Hawaii Revised Statute 712-1200 Prostitution in its Penalty clauses state:

a mandatory fine of $500 and the person may be sentenced to a term of imprisonment of not more than thirty days or probation. For any subsequent offense, a mandatory fine of $500 and a term of imprisonment of thirty days or probation, without possibility of deferral of further proceedings pursuant to chapter 853 and without possibility of suspension of sentence.

I don’t know a single other statute that has a mandatory thirty day jail period for a second offense.

Not one in the whole of the law. As far as chapter 853 Deferral on prostitution in Hawaii, the explanation of that is outside the scope of this article, but what I would explain is this. For any other charge of this magnitude, charges may be expunged within one year after the deferral period but for prostitution it is four years after the expiration of the deferral period. Again, a very strict penalty.

But let’s go back to the original statement: Is it true, is the penalty for the offense “equivalent to riding a bicycle on the sidewalk.” Here’s your comparison chart:

This is how PASS sells you an emotion on false facts. If Republicans used facts like this, it would be on the Jon Stewart show.
To steal the phrasing of the Pacific Alliance to Stop Slavery, untruth anywhere is a threat to truth everywhere. Really, I think if they would just depend on honest representations of the current law, they would have much more credibility.

Except their solutions, while well-meaning, shows they have no understanding of sentencing science OR the judicial system. Let me address how these relate to the “End Demand Bill” both in turn. Keep in mind, the “End Demand Bill” has absolutely nothing to do with child prostitution as mentioned in the first paragraph of the petition.

Why the “End Demand Bill” is a dumb idea

We have to put aside first the constitutional equal protection argument here: “You’re making something illegal for men which is not illegal for women.” How would the directors of PASS feel if we switched genders on that argument?

Putting that aside, increasing penalties for a first offense has a pretty negligible effect on crimes of this type.

Also note that when deterrence is effected by punishment, it seems to be property and violent crimes that are effected, but not violent sexual crimes at all.
How to Cut Prison Costs Without Driving Up Crime?

I haven’t found an article that directly addresses the affect of punishment on prostitution but the general result of a survey of these articles is this: There must be knowledge of the higher penalty, and usually knowledge of the threat of a higher penalty impacts both recidivism and deterrence. A higher penalty by its lonesome does nothing. The three strikes law affects people in California because after their first strike, they realize that they may soon qualify for that sentencing enhancement.
But remember when we talked about the penalties for Prostitution, that graduated sentencing scheme, it is in the law now. Basically, if you get convicted of a second offense, as a a John, you get 30 days minimum jail, no suspension, do not pass Go, do not collect $200. Maximum. Jail. Now.

So the only goal would be to increase the level of the penalty, and that is what they do not want to do, whether they realize it or not because what comes with a full misdemeanor or felony everyone?

Jury trial

Based on the Hawaii State constitution and Supreme Court Jurisprudence any criminal charge punishable by 6 months or more in jail gives the Defendant a right to a jury trial. This is the last thing the Pacific Alliance to Stop Slavery wants, but they do realize it yet. More jury trials means less convictions. Period.

Let me switch gears and inform the casual reader quickly how most Johns are arrested. They are arrested through Sting operations, through craigslist.org, backpage.com, and walking the streets at night. A police officer has to dress and act as a prostitute in order to catch a John. Therefore the Number one defense to prostitution is Entrapment. For entrapment to exist, the fact-finder basically has to agree that the police officer had to employ methods of persuasion or inducement which create a substantial risk that the offense would be committed by persons other than those who are ready to commit it. Right now, the fact-finder is a judge, a judge who will say, “The officer did what they were told to do, I believe the officer. Guilty. Sentence.”
With a jury trial, you now have twelve angry men asking everything from, “Why didn’t the police record the conversation?” They never do, in spite of having recorders, in spite of us all having recorders on their cell phone; to “What method of persuasion did the officer pull to get him to say yes?” In fear of me sounding sexist, I think it is real that juries may reject certain police officers modes of dress, manners, types of ads on the internet, and especially certain tactics, i.e. “How about me and my friend” (Which seems very popular recently); even “Do I really believe the officer that the John said that?”

By creating a right to a jury trial, you will lower the number of convictions. Period. A jury will be much more likely to embrace an entrapment defense in a sting operation than a single judge in district court. If that is what you are really fighting for, be prepared for a lot of people to walk free until the Morals division steps their report writing and skills to the level of the other Felony police divisions.

Addendum: Penalties for Johns in Child Prostitution in Honolulu

Just to be clear:
Under 14 years of age, up to a 20 year sentence.
Under 16 years of age, up to a 5 year sentence.

Both already on the books

IV. So what does it hurt?

So someone else told me, they support the law, what does it hurt?

I would suggest anytime you petition your legislature, based on lies or misunderstandings, to do things that will probably hurt your true cause, you might be making a mistake. You hurt the underlying credibility of your organization, your real cause, and make people healthily skeptical of your goals.

Especially when this is an underrepresented population that needs support. Just do it honestly.

The problem is any legislator who reads a petition that starts with “The law does not contain __blank__” takes one of two actions, 1) either they already know whether the law contains __blank__, or 2) turns to an aid and says “Find out if the law contains __blank__”. As soon as they find out “It’s right there, in the basic jurisdictional statute” there’s no reason to read the petition any more. Instantly the rest of it loses credibility.
OR, they act on the petition, announce it for reading in front of the assembly, and immediately everybody else in the body, the gallery, and the news media (let alone the judiciary) says “What are they talking about, that law is already in the basic jurisdictional statute.”

You don’t get to teach the class before you finish your homework. I can’t say I’ve studied prostitution or its ills or its ill effects on society or the girls who are trapped in it. I have studied the law. This petition is wrongheaded.

_______________________

I want to be very clear, I’m sure the Pacific Alliance to Stop Slavery is well-intentioned. I certainly agree with parts of their goal. But if you’re looking to make the world a better place, be very careful that your unintended circumstances don’t make things worse.

I would like this page to act as the SNOPES.com of the claims that the Pacific Alliance to Stop Slavery makes. If you google their petition, you can read the facts here. It’s not about “hearing both sides”, I’m not on the opposite side. I don’t have a horse in this race, although I’m sure simply by challenging the methods I will be perceived as an enemy of the goals. I believe in the truth and more importantly, improving the justice system. If they want to speak to me to help them focus their efforts on useful legislation, I would love to help achieve some of their true goals, but the proper way.

And for chrissakes, if you’re going to make points based on the law, at least read the law!

So, to thank all of you who have been such good fans and customers, we accelerated the schedule on our next big web update and decided to announce early our latest contribution to the Hawaii legal community.

We spent our time collating and organizing the map of the Honolulu Police Department’s Roadblocks and Speeding Operations.  The purpose of this map is to allow you to see, graphically, where the Honolulu Police Department have been concentrating their traffic arrests.

Plan ahead to avoid the roadblocks and speed traps. This will not tell you all of them, but it will definitely tell you where the police have made traffic stops before. On some corners in excess of 100 speeding stops in a short period of time.

1. A scenario describing your son as the most horrible black-hearted monster that you’ve never met and cannot imagine.

2. A school day prank that would’ve rated no more than an afternoon in the principal’s office during the days we went to school.

3. The scariest of all: nothing. Just come down. The juvenile police have some questions they want to ask you.

The problem with the juvenile system is that the case can follow your child, even past when they become an adult. It is important, from the earliest stages, to have someone who can explain the system to you, to minimize the trauma that is guaranteed to occur.

Recently here at the Landsberg Law Office we’ve received an influx of calls relating to Juvenile arrests.

For the rest of his life, he will also associate touching a breast with being taken by strangers with handcuffs to Detention Home (Juvenile Hall). No matter what happened to his case he will have an unhealthy distrust of females, of police, potentially of authority. Luckily we were able to discuss with the prosecutors the real situation around the game, and no charges were filed. Hopefully he can heal soon with his family.

In another case, we had to proceed to trial, and won, for a boy playing with a group of boys who were punching each other in the testicles. They called it a  ”man check”. I remember calling it a “cup check”. Now the State of Hawaii tried  to call it Assault in the Third degree.

Recently, the juvenile justice system of New York put together a comic book that tries to explain how the Juvenile system works.  It’s not EXACTLY the way the system works in Honolulu, but it’s close enough. It contains most of the right steps and much of the right process. Look at this comic, it’s made for children but you can decide if your child is mature enough to understand the process.

If you need further information, don’t be afraid to contact the Landsberg Law Office, let’s see what we can do.

For me, even being considered to stand with the ranks of local businesses like Leonard’s Bakery, Brasserie Du Vin, and Hank’s Haute Dogs is a humbling experience.  I also appreciate the crew stepping out of the regular comfort zone of restaurants and retail, to profile a business that so many people want to divert with the joke “well, I hope I never need your services”.  So I kind of chuckled and stumbled my way through two videos, both of which went almost double overtime.

Look at the tip of my pen, don't move your head. -- Horizontal Gaze Nystagmus

The first video is something we could do quick and easy.  DUI is something I’ve been doing for years, and it is always fun to sit around and give each other the Field Sobriety Test. Actually, while reviewing the tape, I think I might’ve changed Melissa’s score (I noticed a couple extra clues I missed because I was thinking about the camera.  She’s lucky she got away with a warning!

Here’s the video with the DUI test:

And here’s the video with us just talking. Mainly just explaining the story about how a lawyer used the law to save my family’s lives. The inspiration behind me going to law school and moving up. Also, it’s one of the few times I think you might actually be able to tell I’m nervous.  Usually I’m much better at hiding it!

It’s hard to write a response blog to a statement no one can ever hear, but I got to work in my favorite rap video of all time before the end, so at least part of this worked!

You know that I’m a hustler for real so you know I got the stolen bus pass.

I met for the first time a true hustler today.  He needed transportation, all he had was a set and nothing to lose.  He took an edged weapon and held it up to the little white boy.

“Choices” she said.  That was the theme of the lady’s speech to the young Defendant I was defending.  ”You have all the choices in the world, and you chose to hold a knife to my son and threaten him.

Choices, she repeated thirty times.

Her son, for example, had chosen to play Lacrosse.

My defendant, a child of 15, hadn’t “chosen” to play Lacrosse? In fact he hadn’t even heard of Lacrosse. His father chuckled to me after everything, “How do you play Lacrosse, anyway?” Choices.

When he was younger he had a choice, either get beat up every single day, or join the gang, Halawa Mob.

When he was 12 he had the option, get beat up every single day, or smoke ice for the first time. How’s that choice?

Aaron Sorkin famously said “You know how I got hooked on cocaine? I tried it”. Choices.  He has a choice every single time

Choices, this mom had a choice, she could’ve voted for representatives that took better care of the local school system; Of after-school programs.

Choices, she could have invested in teaching young children the importance of teamwork, rather than gang work.

Choices, the State of Hawaii could have chosen a race to the top, rather than discarding a race to the bottom.

If you offered me ice at 13, I would’ve smoked it for sure. Luckily they only offered me Comics.

I try not to think: “Lady, you just don’t get it.  YOUR son has choices in his life, he can choose what video game to play, or if he takes honors English or AP English. He can choose which sport to letter in. The defendant doesn’t have choices, choices have him.”

Of course the American dream is amazingly fair. Anybody can succeed, and exceed. But to do so you have to escape the trap. And if you can’t escape, you get neither the opportunity, nor the options to make choices. And we all start different distances from the escape.

The choices some kids have to make start with “how will I not get killed today.” If everybody you know, everybody from your neighborhood is dead or in jail by 21, what’s the point of planning for a career? If all your role models disappear by 23, you don’t make plans for 24.

Where I grew up, not going to college was unthinkable.  It would be like not going to Junior High. Of course everyone goes to college. Where my client grew up, not going to prison is unthinkable.  Everyone goes.

Life on the installment plan, that’s what the prosecutors call it.

Choices lady.

When my family was thrown out of our home when I was ten years old, that wasn’t a choice I made. That choice made me.

When I was told I would take a bus every day one and a half hours each way to Junior high, that wasn’t a choice I made. That choice made me.

And when I was in first grade, and they told be I couldn’t be with my friends, that I had to join a class in a special part of the school, with special kids who had special gifts, that wasn’t a choice I made. That choice made me.

Those choices made me, made me who I am today.

Choices are a good song to sing a child. Tell these kids they have control over their own destiny, they can do anything. Until the check comes.

Until our kid walks by someone. Someone who’s had nothing but choices made for them their whole life. Choices that make them into somebody that you don’t want to walk by.

I’m wishing that I had an automobile
As I feel the cold wind rush past
But let me state that I’m a hustler for real
So you know I got the stolen bus pass.

Mr Coke said to Mr Mayor: “you know, we got a process like Ice T’s hair
We put up the funds for your election campaign
And, oh, um, waiter can you bring the champagne?
Our real estate firm says opportunity’s arousing
To make some condos out of low-income housing
Immediately, we need some media heat
To say that gangs run the street and then we bring in the police fleet!
Harass and beat everybody til they look inebriated
When we buy the land, motherfuckas will appreciate it
Don’t worry about the Urban League or Jesse Jackson
My man that owns Marlboro donated a fat sum” 

Choices

See the first part of this conversation here.

I told them absolutely. Especially since in the letter I take them to task for drumming up support on the death of a baby, I don’t want to be hypocritically doing the same thing. He agrees, but then says that my position gives further credibility to my letter. “Up to you,” I say. I just want people to understand what really goes on out there.

And then I woke up Wednesday morning and what happened, my name is in the paper!

Not one phone call. Not one e-mail. Nothing.

I have to think no one who knows me read it.  They didn’t read the on-line version, they didn’t read the paper version. Or they skimmed it and missed the name.  The name is not so common, they even put my number!

And it was edited.  Please see the other half of this post to see the original, unedited version of the letter. I think the unedited version is punchier, but sometimes people don’t want punchy over their morning coffee.

And definitely no response from CASA. But we knew there wouldn’t be, right? What are they going to say “No, the judges don’t care about children.” Or would they say, “Sorry, we misspoke.” Of course not, never admit to a mistake.

Because that is what they are teaching to our children.

It was during these hearings I got to know the CASA program. And then I read this letter in today’s paper.

I was offended.

No matter what my differences of opinion may be with Judge Viola, or Deputy Attorney General Erin Iwamoto-Torres, or Social Worker Mary Saga-Petaia, no one can say they don’t care for the kids in the judicial system. It takes only minutes of looking at Judge Viola think about his decisions to know he cares, deeply and and from his soul, about these kids.

Rarely am I driven to write a letter to the paper, in this case I did, leaving out the names.

I did what’s called “burying the lead”. I wrote at the end what I really wanted to yell from the mountaintops. A baby’s body isn’t cold, and you’re asking for donations?” This is how CASA chooses to Cherish the Children. And let’s be clear, this is advertisement for a website that clearly asks for donations.

Judges are not regularly lauded.  Basically when things go wrong, they’re on the front page, and when everything goes right people ask “Why do they get paid so much?” It’s realistic to think if Judge Viola, for example, does this until he retires, he’s probably going to lose ten years off of his life from the accumulated effects of the stress of these kids. We sweat and worry and scrimp and have heartache over an only child. I can only imagine how many children he holds in his care.  And if he returns the kids too early, they’re worse off.  And if he returns the kids too late (or never) it really destroys the fabric of society.

But at least as a judge, when he walks in the room, people’s backs straighten and want to shake his hand. The social workers, for a third of the money and none of the respect are the front lines in the war for child welfare. And lets be very clear here: The war for child welfare has little to do with who these kids are now, and everything to do with who they will become in the future. Will they be properly adjusted, or will they be in Halawa? Like I told my friend the other day, being from a broken home is not an excuse anymore, it’s called “Growing up in the 80′s.”

So in closing let me summarize my open letter to CASA like this. You’re not the only ones who care for these kids. We all care for these kids. The difference is we all recognize that we’re all a part of the village that is raising this child. If a single mother walked into J. Viola’s courtroom and said about her kids that she was “the one adult who cared for them”, what would he respond?

CASA, work with us so we can all work together. If you’re working alone, you’re working against everyone else.  

For the good of the children.