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Punishment in Hawaii – Laws and Trends

Punishment in Hawaii - Laws and Trends
  
“We can and should do better. But “doing better” doesn’t mean simply focusing on social services and systemic reforms and ignoring the need for punishment. It means using punishment intelligently, which means using it as sparingly as possible but also as much as necessary.”

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.

`“Viewed from the perspective of deterrence, long prison terms are a bad bargain: The last 15 years of a 20-year prison sentence start five years from its beginning, a period distant enough to be beyond the planning horizon of the typical armed robber. And those long prison terms are no better viewed from the perspective of incapacitation—the purely mechanical effect of preventing crime by keeping the criminals locked up… Thanks to “three strikes” laws and absurdly long terms for drug dealing, the average prisoner is now in his (or, much more rarely, her) mid-30s while the average new crime is committed by someone in his early 20s. That’s a very costly mismatch.”

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.

Great Marijuana in Honolulu

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!

Gavel Punishment in Hawaii

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!

 

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Solving Prostitution Part II

Solving Prostitution Part II

Update…

This all started because I read a petition that used sensationalism over substance to achieve a visceral reaction to gain a signature for a petition. A member of the Pacific Alliance to Stop Slavery told me that he agrees with me that the law DOES undisputedly contain a a way to detain juveniles without criminalizing them.

But that part of the petition remains unchanged. Which means they still choose pretty fiction over uncomfortable fact.

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:)

wpid-548666_457289240975801_310775165_n-2012-10-5-00-30.jpg

Intellectually disingenuous.

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Pacific Alliance to Stop Slavery – Landsberg Law Office

Pacific Alliance to Stop Slavery - Landsberg Law Office

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
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Lawyer Headlines in Honolulu DUI

Lawyer Headlines in Honolulu DUI

I had the most wonderful visitors in my office last week.  After visiting during my one-year anniversary party, Nonstop Honolulu Online Entertainment and Hawaii: In Real Life decided to do a profile of me.  During my time helping out the food trucks I got to know Melissa Chang and Russ Sumida through another attorney I commonly associate with, Ryan K. Hew Esq., and they all became familiar with my work. After speaking to a couple of the people I defended, and getting to see me speak before the City Council, they decided I needed to be one of the local businesses they profile in their online magazine every week.

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.

Read the profile! Click here->Nonstop!

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!

 Now to update both the DUI pages of the website as well as the Press sections of the website. And while this is a great way to start July, be careful out there. The Honolulu Star-Advertiser just updated their breaking news with this:
For more frequent updates, follow us on twitter, Melissa Chang says!

Published in the paper this week!

Published in the paper this week!

We did it! As a follow up to last weeks decision to write a letter to the Star-Advertiser, one of their editors over there called me up and said he’d like to publish the letter. I told him “sure, that’s why I wrote it, so you would publish it.” He said he had to 1. Make sure it was me, and 2. Ask what part of town I live in, since they don’t normally identify people by their occupation.

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!

Results

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.


Hawaii Juvenile Law — The CASA program

Hawaii Juvenile Law -- The CASA program

Since I’ve gone into private practice I’ve been lucky enough to participate in all different types of judicial/non-judicial hearings. I’ve done negotiations, the national TTAB, Federal Court, and military court. One of my first cases as a private attorney involved a family involved in a matter where the State got involved and took away the parents’ right to make decisions as it involved their own kids.  There has never been a question that these parents absolutely loved the kids. Drugs are not even suggested to be in the picture.

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

The CASA program

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.

My response

Ken Bailey’s letter of 6/3/2012 betrays quickly exactly what is wrong with the CASA (Court Appointed Special Advocate) program when he says “their CASA volunteer will be the one constant adult presence — the one adult who cares for them”.  Never mind judges that dedicate their life to this. Mr. Bailey lists and discounts the social workers for CPS, the doctors at Kapiolani, or the lawyers of the Attorney General’s office. The messiah complex of CASA is disgusting.  I’d like to assure him that each and every person involved in the court system cares very deeply about these children, not only him.

Remember always the people who often care the most about these children, their families.

Quite often families have babies too young, or without the necessary tools, and don’t know how to care for their children. Yes, sometimes, not always, drugs become a big issue.  But as the law agrees, our duty is to give families the tools to repatriate these children as soon as they are able to care for them. The State of Hawaii should not be in the business of divesting families of their children. For the amount of children that go through the system, we are doing pretty well.  Do we so soon forget that children die in Foster Care too?  A wise lady once said “it takes a village to raise a child”. CASA would do well to appreciate the other members of the village, of which they are but one.

And finally, to use the death of a child as a means to attract volunteers or traffic to your website, you should be ashamed. 

Marcus L. Landsberg IV
Landsberg Law Office
Executive Centre
1088 Bishop Street, Penthouse

Honolulu HI, 96813

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?

“Everybody in this room cares about your child. We’re all working very hard to do what’s best for your child. That includes working hard to get you, the parent, in a situation where we can put the child back with you. Work with us so we can all work together.”

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.


Hawaii Criminal Defense: The Legal Blog

Issues in Hawaii Law.

Below is a collection of Articles I've written about Hawaii law.  Most are about criminal defense, Honolulu trial work, or future legal trends. Courtroom experience is probably the most common.  Others are comments on local or national law.  Hopefully there is something for you to find and enjoy.  If nothing else, you'll see the way I feel about certain issues, and the thought processes I put into legal problems we solve.

And some stories are just too funny NOT to tell.......

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