The criminal sanction has limited capacity to do good and great potential for causing harm. That’s why it should not be easy to punish people. It should be hard. But local prosecutors are pushing to make it easy to punish. The Legislature must not give them what they want.
On Sept. 8, Hawaii’s Supreme Court put a stop to the prosecution of Richard Obrero, who was charged for the killing of Starsky Willy, a 16-year-old boy who was reportedly part of a group of teens who harassed Obrero by trespassing on his property and shooting BB guns at him and his home.
On the morning of Nov. 12, 2019, prosecutors in former Honolulu Prosecuting Attorney Dwight Nadamoto’s office asked a grand jury to indict Obrero, but the grand jury refused. That same afternoon prosecutors persuaded a judge in a preliminary hearing to approve the prosecution of Obrero. For prosecutors, the grand jury was just a speed bump.
Prosecutors routinely get grand jurors to do their bidding because they control grand jury proceedings: A judge is not even present, and neither is a defense lawyer. It is, therefore, reasonable to ask how they failed to persuade a grand jury to issue an indictment against Obrero.
There are also questions of fairness for the defendant. Prosecutors ignored a decision by a group of citizens whose mission is to guard against inappropriate charges. A similar end run around citizen oversight was made by Honolulu Prosecuting Attorney Steve Alm after a grand jury refused to issue an indictment against police for killing Iremamber Sykap, though in that case a judge ruled that prosecutors could not proceed.
In both of these cases, prosecutors essentially said, “Thanks for the suggestion but we know best.” By treating the grand jury as an impotent ornament they ignored law, precedent and principles of fairness.
Another institution of citizen oversight is trial by jury, but here, too, our criminal justice system pays little more than lip service to it. Jury trials have been marginalized all over America, and some observers wonder whether we are experiencing their demise. Nationally and locally, the vast majority of criminal cases (more than 90% of felonies) are disposed of by plea bargaining, and many aspects of our system pressure defendants to plead guilty, which undermines justice at every turn.
So let us step back and take stock. American criminal justice has two institutions of citizen oversight enshrined in law and culture, and both function as props for the prosecutors who exercise more control over life and liberty than anyone else. In this context, the local prosecutors’ lobby is pushing our Legislature to make filing criminal charges even easier — and to do so fast. Their mantra is: Be Afraid, Be Very Afraid.
Don’t believe it. The sky is not falling, and the quick is the enemy of the careful. Greasing the skids for prosecutors is the opposite of what the present situation calls for. Punishing people should be hard. We should be able to charge and punish only if we are willing to spend time, money and effort to do so. And citizen participation in the criminal process should be more than incidental music. If we are not willing to endure expense and inconvenience to charge and punish, then we need to reconsider the propriety of our practices.
David T. Johnson is a sociology professor at the University of Hawaii-Manoa and author of many works on prosecution and criminal justice.
