RELATING TO PROBATION.

HB1253

HOUSE OF REPRESENTATIVES

H.B. NO.

1253

THIRTY-THIRD LEGISLATURE, 2025

STATE OF HAWAII

A BILL FOR AN ACT

relating
to probation
.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

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

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

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

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

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

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

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

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

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

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

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

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(3)
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Provide support and accountability by
offering:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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(1)
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Immediately take the participant into custody;

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

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

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

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

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

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

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

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

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

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

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

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(j)
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For purposes of this Act:

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

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

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

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

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

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

INTRODUCED BY:

_____________________________

Report Title:

Hawaii
Opportunity Probation With Enforcement Program; Judiciary

Description:

Establishes
the Hawaii Opportunity Probation with Enforcement Program to be administered by
the Judiciary.

The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.