Trafficking in, or even possessing, dangerous items are usually unquestionably classed as serious crimes, but this year that assumption is being questioned.
Senate Bill 2793 is the means by which lawmakers are seeking to reduce the criminal penalty for small amounts of all “dangerous drugs,” which the federal government classifies as Schedule 1 and Schedule 2 substances.
The argument for it is that incarceration has been costly and ineffective in deterring the use of these addictive drugs. However, concerns rightly raised by criminal justice officials put the wisdom of this change in doubt and will have to be addressed as the bill is discussed further.
And further discussion is likely, given that the Senate Judiciary Committee has approved an amended version of the legislation, positioning it to advance to a floor vote next week.
Under the committee’s revisions, the change in the law would affect all dangerous drugs, a long list of controlled substances, among them methamphetamine, heroin, morphine, cocaine, fentanyl, carfentanil, amphetamine, pentobarbital, opium, mescaline and peyote.
Under the bill, possessing less than 2 grams of dangerous drugs would be “promoting a dangerous drug in the fourth degree,” a newly defined misdemeanor. Under the committee’s amendments, an amount greater than 2 grams would still trigger a charge of promoting a dangerous drug in the third degree, already a class-C felony in the current law, said Eileen Nims, the committee’s legislative attorney.
Critics of the bill have testified that there are other ways to divert a convicted defendant away from prison and toward appropriate treatment. Simply making the offense a misdemeanor, they said, could convey the wrong message about the lethality of these substances. They’re absolutely right.
Hawaii Attorney General Clare Connors is among the officials who have testified against the bill, citing concerns that the misdemeanor classification would not sufficiently deter the use of some extremely hazardous and addictive compounds.
The law already provides ways to avoid prison sentences, Connors said, such as deferrals, conditional discharges and first-time drug offender sentencing provisions.
The rationale underlying the bill is that “excessive incarceration does not necessarily improve public safety,” and that “incarceration is a particularly expensive and ineffective response to the public health problem of personal drug use.”
Among the supporters of the measure, the American Civil Liberties Union of Hawaii asserted that those with felony records can face obstacles after incarceration that can interfere with employment and recovery. And the ACLU estimated the state’s potential savings on incarceration for low-level drug offenses at $13 million.
The bill also received backing from the Kauai County Office of the Prosecuting Attorney. In general, though, law-and-order agencies posited the counterargument that reducing the offense to a misdemeanor ignores the societal harm of drugs that can have a dangerous effect, and that ingesting even a minuscule amount can be deadly.
Homeless persons encountered by police officers often are under the influence of dangerous drugs, and they are linked to many thefts, robberies and burglaries in the community, said Hawaii County Deputy Police Chief Kenneth Bugado Jr.
Reducing the numbers of nonviolent offenders joining the prison population is a proper goal, and incarceration should be avoided for many of them. But that decision should remain up to the discretion of the judge, who also should have the option of issuing a prison sentence. Sadly, some cases still might merit such an outcome.
