(Editors’s note: The co-authors of this commentary are listed at the end.)

Who stepped over the judicial line? The Star-Advertiser’s editorial about a bill that would amend the sentencing statute contained many fundamental misconceptions (Legislature steps over judicial line," Our View, Star-Advertiser, April 14).

This bill, currently at the Legislature, would conform a decades-long practice of not only the Department of Public Safety (DPS) but prosecutors, defense attorneys and state judges, which treated multiple sentences imposed at different times to run concurrently, unless specifically stated otherwise.

While court minutes reflected the court’s order of a concurrent sentence, the judgment often did not specify the sentence as "concurrent." Many lawsuits could have been avoided had DPS bothered to read the court record instead of relying solely on the judgment.

We take particular exception to the utterly false statement in your editorial that the proposed law "could result in the immediate release of hundreds of inmates serving consecutive terms, and, in effect, overturn sentences handed down by judges." Quite the opposite, it makes sure the court is correctly understood.

Your statement that this violates the "separation of powers doctrine" by legislative interference with judicial rulings is incorrect since the Legislature makes the laws that the courts interpret. Your editorial mischaracterizes the situation as the Legislature stepping over the judicial line when it is, in fact, the executive branch that is doing so.

DPS’s knowledge of the longstanding prevailing practice that a silent judgment imposed the concurrent sentence rather than the reverse, and its decision to unilaterally break from the practice that had been followed for decades, caused many inmates to serve more prison time than courts had ordered them to serve.

The last administration, with full knowledge of this practice, unilaterally determined that it would reverse the prevailing practice which interpreted silent judgments as imposing concurrent sentences. The administration took it upon itself to surreptitiously recalculate the sentences of all 6,000 Hawaii inmates.

Inmates serving multiple prison terms, whose judgments were missing the word "concurrent," had their sentences changed by DPS to run back-to-back. Only the inmate would receive notification, via first class letter from DPS, informing the inmate of the increase in his or her sentence due to an unspecified recalculation "error" found by DPS. None of the other original parties to the case — the court, the prosecutor, and defense counsel, i.e. those in the best position to correct what DPS was belatedly claiming as "error" — were ever notified of the modification to the inmate’s sentence.

Because of the delayed and incomplete manner in which DPS notified inmates of the changed sentence, in many cases the judge or counsel may be deceased or retired, requiring new judges to review sometimes decades-old cases to determine the court’s intent at the time of sentencing.

In view of ongoing and future lawsuits being pursued by wrongfully over-detained inmates, the Legislature is acting prudently and fairly in proposing the current legislation.

In a 2010 federal court decision, the late Judge Samuel King ruled that the inmates’ due process claims were compelling enough to survive the attorney general’s attempts to dismiss their claims. King wrote that DPS’s "deliberate indifference" to the prevailing practice, which resulted in many inmates serving a harsher sentence, was not the intent of the court and was a prima facie constitutional due process violation against the inmates.

Section 2 of the current legislation (Senate Bill 106 HD1) provides some remedy to the "deliberate indifference" displayed by DPS by allowing an inmate serving multiple terms of imprisonment to request the department to recalculate his or her sentence, if warranted.

One attorney reported that there is not one case where the consecutive argument has been used as a "matter of law under 668.5" and not one judge said it was the court’s intent to give the prisoner a consecutive sentence. This means that DPS’s interpretation of HRS Section 668.5 was wrong every time.

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This was submitted by Kat Brady, Community Alliance on Prisons, and attorneys Susan Arnett, Myles Breiner, Bill Harrison, Brook Hart, Virginia Hench, Karen Nakasone, Carrie Ann Shirota and Lorenn Walker.