In Hawaii’s two most populous counties, which together account for more than 70 percent of the state’s population, the incumbent prosecutors are not seeking re-election this year. In light of their history of derailing criminal justice reform, this has opened the door to a major upheaval in the state’s criminal justice politics.

The Aug. 8 elections “provide an opportunity to turn things around” in Hawaii’s punitive culture  if the new prosecutors “support smart justice legislation instead of blocking it,” said Monica Espitia, director of the ACLU of Hawaii’s Smart Justice Campaign. She added that most current prosecutors have been “extremely obstructive” toward reforms debated in the legislature.

The campaign in Hawai’i County—the “Big Island”—has ended up largely tame, with only narrow calls for change from candidates. But in the far more populous Honolulu County, where incumbent Keith Kaneshiro has gone on leave because of a corruption scandal, the candidates differ sharply on whether they would change this punitive culture—and one candidate has called for the state to take a thorough turn against policies that fuel mass incarceration.

“How I would view my responsibility as a prosecutor is to use my power, use my voice, to shift the conversation and get people to really start thinking about how what we’re doing is not working,” Jacquie Esser, a public defender and one of seven contenders vying to replace Kaneshiro, told The Appeal: Political Report. “We’re wasting millions of dollars, we’re destroying lives for generations.”

Esser hopes Honolulu will join the nationwide wave of counties that have been electing public defenders as decarceral prosecutors. She garnered endorsements from Chesa Boudin, a public defender who was elected district attorney in San Francisco last November, and whose platform she has echoed, and other prominent progressives like U.S. Senator Bernie Sanders of Vermont.

Esser faults the state’s prosecutors for using their clout to push a “tough on crime” approach, and she has already intervened in past legislative debates, even going up against Kaneshiro, the prosecutor she is seeking to replace. In 2019, she submitted testimony in favor of a bill that would have helped release terminally ill people from prison. Kaneshiro testified against the bill, which was later vetoed by David Ige, the Democratic governor who has also sunk other reforms. 

Ken Lawson, co-director of the Hawai’i Innocence Project and professor of law at the University of Hawai’i, says it has been tough to advance reform in this blue state because many politicians spread fear against it. Lawson, who has endorsed Esser in his personal capacity, believes the election of a prosecutor committed to upending the system could be a game changer.

“It’s not just the election that’s at play here, it’s the whole justice reform movement,” he said. 

Esser told the Political Report that she plans to champion many other progressive bills if elected. These included legislation that would repeal mandatory minimum statutes, end the use of cash bail, and abolish felony disenfranchisement, which would enable incarcerated people to vote from prison. (Such a bill advanced past a legislative committee last year but then stalled.) 

Esser’s opponents have either outlined a more piecemeal approach to reform, or else are running on “tough on crime” warnings about the dire consequences that would follow decarceration.

If no one reaches 50 percent on Aug. 8, as seems likely, the top two candidates will move on to a runoff in November. The same rule applies in Hawai’i County, where three candidates are vying to replace the departing Mitch Roth.

In Honolulu’s election, polar opposites

A year ago, the governor vetoed the “compassionate release” bill that would have helped free terminally ill prisoners and killed legislation that would have restricted the state’s embattled civil asset forfeiture programs. Criminal justice reform advocates blamed law enforcement groups for these bills’ failures. 

One prosecutor, Kaua’i County’s Justin Kollar, told the Political Report at the time that he backed both bills; in doing so, he broke with his colleagues on the far more populous islands.

Kollar now says he is hopeful that he will gain reform-minded allies out of Honolulu County and Hawai’i County’s elections, and that he will be less isolated within the state in defending criminal justice reform. (Kollar himself is up for re-election this year, but he is unopposed.)

“Having colleagues in the other counties who align with [a progressive] platform certainly makes it more likely that we can succeed in advancing that vision with our local and state legislators,” he told the Political Report. 

In November, though, Kollar endorsed Megan Kau in Honolulu’s open race. Out of Honolulu’s seven candidates, Kau is one of two, alongside acting prosecutor Dwight Nadamoto, who has staked public positions that are consistently hostile to decarceration and criminal justice reform. 

Kau rejects the premise that Hawaii incarcerates too many people, and does not think there are issues of bias or systemic racism in its criminal legal system. She defends the use of cash bail, denying that it disadvantages poor defendants more than wealthy ones despite evidence to the contrary; in an exchange with the Political Report, she raised fear that people released pretrial would “commit another crime while out in the community.” And in an ACLU questionnaire, she repeatedly makes the case for a carceral approach to drug offenses. 

Asked about his endorsement of Kau, Kollar said he issued it “before Jacquie [Esser] entered the race.” He added that he is “not currently publicly supporting any candidate in the primary,” and that his views “align more closely” with Esser’s.

Esser’s platform is, in many ways, the polar opposite of Kau’s. Besides calling for legislative change, she says she would overhaul Honolulu’s prosecutorial policies so as to approximate the changes she wants lawmakers to mandate.

Esser told the Political Report she opposes the use of cash bail. “I would never seek money as a condition of pretrial detention,” she said.

She also said she would outright decline to prosecute cases of drug possession, and behaviors that stem from poverty or mental health issues; getting the criminal legal system involved in these matters does not work, she stressed, because they’re about “public health.” She also would not prosecute sex work. “I do not believe that the government should be in any one bedroom,” she said, adding that decriminalization would free up resources to “focus on sex trafficking.”

Esser, finally, vowed to “not charge people under laws that call for mandatory or enhanced sentencing”; she would not charge someone as a “repeat offender,” for instance. Such charges, she said, ignore rehabilitative goals and are tools for prosecutors to unduly tie judges’ hands. She also told the Political Report she would not charge minors 16 or under as adult.

Esser’s proposals echo those of Boudin, who won in San Francisco on decriminalizing sex work and who has announced policies to circumvent sentencing enhancements and not seek cash bail.

She is also the only Honolulu candidate to express unqualified support for the state Supreme Court’s plan in April to release people from prisons and jails to prevent their exposure to COVID-19. 

These crowded elections also feature a lot of silence and vagueness

The contrast between Esser and Kau is clear enough. But Honolulu’s race is startlingly crowded by the standards of prosecutorial elections, making the ideological fault lines more complex.

Only one other candidate responded to the Political Report’s policy questions: Tae Kim, an attorney, expressed support for many but not all of the statewide reforms he was asked about, including the 2019 “compassionate release” bill and an end to cash bail. He also said he did not favor restricting civil asset forfeiture to require a conviction, and he took issue with the scope of the Supreme Court’s release plan.

Four other candidates did not respond to repeated messages. One, Anosh Yaqoob, has no campaign website and has also ignored other media or nonprofit questionnaires. A vague picture of the politics of the other three, at least, emerge in these other venues.

Steve Alm, a former judge and an early frontrunner, is broadly supportive of reform goals, at least when it comes to lower-level offenses. He is more vague than some others when it comes to his policies, tending to focus his answers on improving professional ethics and training. He has emphasized his role in establishing HOPE, a supervision program meant to help people not violate probation conditions, and he is not putting forth ideas to shrink the system.

RJ Brown, an attorney, wrote in the ACLU’s questionnaire that Honolulu incarcerates too many people, at least for lower-level offenses. But he took issue when asked whether there are implicit biases in the criminal legal system. “Insofar as I suspect you view these biases as inherently destructive, and emblematic of a broken system, I don’t maintain the same perspective,” he said.

Nadamoto, who has been the acting prosecutor since the incumbent went on leave, embraces the label “tough on crime.” He recounted to the Honolulu Civil Beat how, in the spring, he “led the fight against the premature release of lawfully convicted felons, misdemeanants and pre-trial detainees” he blames the state for turning “inmates … loose on the street” instead. 

State advocates like Espitia of the ACLU strongly take issue with Nadomoto’s “scare tactics.” “When the COVID-19 pandemic hit, the public defenders and the Supreme Court correctly went to work on reducing the incarceration numbers based on science and CDC guidelines,” Espitia said. “The virus spread throughout facilities on the mainland and real lives were on the line.”

The three candidates running in Hawai’i County have all expressed strong reservations about the Supreme Court’s release plan, just one of the signs that this election lacks a progressive option. 

And none answered repeated emails and messages about their views on criminal justice reform.

Here, too, clues to their political orientations emerge in other venues. Christopher Bridges, a former prosecutor, says he wants to change policies toward lower-level offenses (including not seeking cash bail) but he frames this as a way to ensure “there is room” to incarcerate “violent and repeat offenders”—a far cry from Esser’s case against ballooning sentencing enhancements. Kelden Waltjen, currently a deputy prosecutor, even makes “stiffer” sentences for “violent, and repeat offenders” one of his “priorities”; elsewhere, he rejects the notion that his county is overly reliant on incarceration. Finally, Jared Auna, another former prosecutor, suggests in a Civil Beat Q&A that if the state had more jail capacity, it would not have needed to release people during the COVID-19 pandemic, a striking answer in an interview that makes no mention of bail.

“All of those things are possible”

Honolulu’s election, at least, is unfolding against the backdrop of the major corruption scandal that engulfed the prosecutor’s office, leading Kaneshiro to step down. The scandal also involves Honolulu’s former police chief, exposing the broader law enforcement ecosystem. 

Lawson of the Innocence Project thinks these revelations have made 2020 a unique moment in state politics because their sheer scope has “awoken” people. That was compounded, he said, by the “massive protests” this spring , in the wake of George Floyd’s murder in Minneapolis. Hawaii’s criminal legal system’s systemic problems already were under the microscope. Its greatly disparate harm against Native Hawaiians has at least been a topic of contention in this year’s elections, for instance.

These events “have allowed people to ask what other alternatives are out there, if the way we have been doing it is wrong,” he said. “What does bail reform mean, how do we decriminalize drug addiction? All of those things are possible now because people’s minds are open.”

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A growing number of prosecutors are limiting or ending the prosecution of marijuana possession. The latest to join this trend are in Alexandria, Virginia, and Louisville, Kentucky.

Bryan Porter, the commonwealth’s attorney of Alexandria (a city of about 150,000in Northern Virginia), has announced that people charged with simple marijuana possession will be eligible for pretrial diversion. Their case would be dismissed after up to nine months of supervision and drug screening. This policy goes beyond state statutes, which only provide diversion for people’s first offense. It will help people “avoid the consequences of a criminal record for marijuana possession,” Porter told me. It has no restrictions regarding prior criminal history, he said, nor regarding the amount of marijuana possessed—as long as his staff does not consider possession to indicate an “intent to distribute.”

I asked Porter why he is not adopting a policy of just declining to prosecute marijuana cases, as others have. After all, this program remains burdensome for defendants and for law enforcement. He pointed to a state Supreme Court’s ruling in May that denied the Norfolk prosecutor’s power to dismiss marijuana cases filed by local law enforcement if judges were refusing to. Porter said his policy is on safer ground because he is using “the authority that I do have with regard to the disposition of cases.” That said, he acknowledges that even under his plan judges would need to grant the motions to dismiss the charges of people who have gone through the program. The question remains, therefore, whether local judges are sympathetic to reform. “My understanding is that the judges will honor our dismissal motions,” Porter said. “I do not anticipate any problems.” He also called on the legislature to decriminalize the possession of marijuana.

In Jefferson County, Kentucky (home to Louisville), County Attorney Mike O’Connell rolled out a policy of no longer prosecuting people for possessing up to one ounce of marijuana. It applies to cases where marijuana possession is the only or most severe charge. O’Connell pointed to the racial inequality in marijuana prosecutions. “For me to truly be a minister of justice, I cannot sit idly by when communities of color are treated differently,” he said. In January, a Louisville Courier Journal investigation found that African Americans are far likelier than the city’s white residents to be charged with marijuana possession, despite comparable rates of use.

As county attorney, O’Connell has jurisdiction over lower-level offense. (More severe charges fall under the jurisdiction of the commonwealth’s attorneys.) This covers the possession of up to eight ounces of pot. I asked his office why it continues to prosecute people who possess between one and eight ounces, rather than decriminalizing altogether. “With marijuana still fully illegal in Kentucky, we felt this was the most appropriate step at this time,” said a spokesperson. O’Connell’s decision has sparked discussion elsewhere in the state.

Maryland prosecutor will no longer request cash bail

Aisha Braveboy, the state’s attorney of Prince George’s County, announced a significant bail reform in a speech this month. “I do not believe in the cash bail system,” she said. “Starting October 1st, my office will no longer request cash bail as a condition of release.”

Reform advocates express optimism about the reform in the Washington Post. They also note implementation will be crucial. Reducing pretrial detention will depend on the judges who actually set bond, and who could deny people pretrial release. Also, what replaces cash bail will matter greatly.

One cause for caution is that Braveboy’s office told the Post that prosecutors could seek alternative conditions for release such as drug testing or electronic monitoring. These are burdensome, and could carry costs if defendants choose private monitoring or “less demanding” oversight, the Post reports. Denise Roberts, the communications director of the state’s attorney’s office, told me that prosecutors would seek release on personal recognizance, with no additional conditions, if they judge that a defendant “does not pose a danger” and that “there is no risk of failure to appear.” In addition, prosecutors could seek to deny bond to defendants whom they deem to be dangerous. Roberts said there should be no cases where prosecutors would have previously sought cash bail but would now seek to deny any release.

Hawaii prosecutor reduces charges for driving offenses

Justin Kollar, the chief prosecutor of Kauai County, rolled out a new policy to lessen penalties for driving without a license or insurance. These offenses are often linked to poverty and an inability to pay court debt, which triggers license suspensions. Hawaii law provides for harsher penalties and detention when a traffic infraction is treated as a repeat violation. Such enhancements “disproportionately impact the economically disadvantaged,” Kollar said, trapping them in a “cycle they can’t get out of.” So his office will treat all such infractions as first-time violations, regardless of prior history.

Hawaii’s other three chief prosecutors oppose Kollar’s move. They have a history of opposing criminal justice reform.

Elsewhere in the country, DAs like Rachael Rollins in Boston and Amy Weirich in Memphis have gone a step further: They have said they are altogether declining to prosecute cases of driving on a suspended license when the suspension is due to unpaid debt.

I asked Kollar why he is not adopting such a policy. He replied that his office only has access to limited information regarding “what caused the original suspension or revocation,” and that he cannot “see if the suspension or revocation was strictly due to fines.” He added that he would consider dismissing cases if the state provided such data, and that he would support legislation to end the suspension of driver’s licenses over unpaid fines.   

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The legislature chose to not hold a veto override session, so the vetoes are final, disappointing criminal justice reform advocates.

“There’s longstanding deference to police and law enforcement in our state,” Mandy Fernandes, policy director of the ACLU of Hawaii, told the Political Report. “So any time we are trying to push across the finish line a bill that would reform policing or reform some of our criminal laws, it can be very difficult to do.”

Ige allowed a bill decriminalizing the possession of small amounts of marijuana to become law without his signature. The bill falls short of reforms other states have recently implemented.

To seize property, law enforcement still won’t need to file charges or obtain a conviction

In Hawaii, as in many states, police departments can seize a person’s property on the suspicion that it is connected to a crime, even if no one is ever charged or convicted. Proceeds go to law enforcement agencies and prosecutors.

House Bill 748 would have required a felony conviction before someone’s property could be seized. Arkansas adopted just such a law this spring. But Ige vetoed it last week. “This was a real heartbreaker as we have been talking to the legislature for many, many years about the injustice of seizing someone’s property without a conviction,“ said Kat Brady, the coordinator of the Community Alliance on Prisons, told the Political Report. She faulted Ige for listening “to law enforcement who are very protective of their slush fund.“ Ige’s office did not answer a request for additional comment on this bill, nor on the medical release one.

In a statement explaining his veto, Ige suggested that restricting civil asset forfeiture would encourage crime. He called it “an effective and critical law enforcement tool that prevents the economic benefits of committing a crime from outweighing consequential criminal penalties and punishment.” But for Fernandes, civil asset forfeiture is not commensurate with what it punishes. “When there were not even charges brought and property is taken, it’s clearly out of proportion with the alleged offense because there was no offense,” she said.

Ige also said during a press conference that he trusted law enforcement agencies to seize property appropriately. Hawaii County Prosecutor Mitch Roth echoed that sentiment, saying he “doesn’t know of a single case” in which the system has been abused.

At least one prosecutor disagrees. “I do think our state civil asset forfeiture process is in need of some serious structural reform,” Justin Kollar, the prosecuting attorney of Kauai County, told the Political Report. “That said, I wasn’t crazy about HB 748 for the simple reason that I don’t want prosecutors to have a financial incentive to achieve a conviction. If we decide that the idea of civil asset forfeiture is immoral then we should do away with it entirely.”

The state auditor’s office reviewed the forfeiture program in 2018 and found significant problems, including a lack of transparency and inadequate paths for people to contest a seizure.

Law enforcement actors say they have since fixed these issues, but Fernandes disputes that claim. “They are not requiring a criminal conviction, the clear profit incentive remains,” she said. Leaving it up to the agencies at fault to reform themselves also raises enforcement and oversight concerns.

Decriminalization survives, unlike other cannabis bills

Hawaii is decriminalizing the possession of small amounts of marijuana because of a bill that Ige allowed to become law without his signature. It removes the threat of jail for possessing under three grams.

That is the smallest amount among all 26 states that have decriminalized or legalized marijuana, according to the Marijuana Policy Project. Possessing less than three grams is still punishable with a fine. The law provides a procedure to expunge past convictions for marijuana offenses that are now decriminalized. But it only allows a past conviction to be cleared if it was accompanied by no other criminal charges. In addition, expungement would not be automatic, meaning that people will need to file a motion rather than the burden being on the state to clear their records. By contrast, Illinois recently adopted a procedure where individuals will not need to initiate the expungement process as long as their offense involved less than 30 grams of marijuana.

Still, the governor signaled that he came close to vetoing even this modest legislation, so bolder reforms may be a way off. Marijuana legalization failed in the legislature this spring.

And Ige outright vetoed other bills pertaining to cannabis, as he had last year. He killed one bill that would have enabled patients to carry medical cannabis between islands, and another that would have legalized the possession and sale of hemp.

Ige blocks compassionate release

House Bill 629 would have provided procedures by which incarcerated people suffering from a terminal or debilitating illness can request a medical release. During the legislative debates on this bill, Brady of the Community Alliance on Prisons reminded lawmakers that a substantial share of the state’s prison population is detained thousands of miles away, in Arizona. Medical problems compound the isolation from their communities. The legislation passed both legislative chambers unanimously. But Ige vetoed it.

He said in a statement that the bill is unnecessary because medical release opportunities already exist. Keith Kaneshiro, the Honolulu County prosecutor, opposed it on similar grounds. He said it duplicated policies implemented by the Department of Public Safety, which runs prisons in Hawaii. But the department supported HB 629.

This tactic mirrors the one on civil asset forfeiture: Ige and the prosecutors who urged vetoes say they favor certain policies while fighting their codification into law.

“It can be difficult to get agencies to follow the law,” said Fernandes. “But it’s much more difficult if we’re just trying to get them to follow their own policies and procedures that they can change at their own discretion. There’s something very valuable in codifying these civil rights reforms in statute.” Fernandes also disputes that the bills were merely duplicating existing policy.

Kollar, the Kauai prosecutor, echoed Fernandes. “Codifying an existing procedure that is working seems to be a no-brainer to me,” he told the Political Report. “Hopefully the legislature will take a fresh look at this one next session.”

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A legislative committee in Hawaii’s Senate voted in February to advance a bill abolishing felony disenfranchisement, a significant move since Maine, Puerto Rico, and Vermont are the only places in the United States that do not disenfranchise people because of a felony conviction.

But the deadline for the legislation to make it out of committees has now expired with no action from the other committees to which it was referred. This means that Senate Bill 1503 is effectively tabled for the year. The bill will carry over to 2020, and proponents told the Political Report that they would press ahead then.

Hawaii currently strips people of the right to vote while they are incarcerated for a felony conviction, and restores it upon their release from prison. SB 1503 would reform that practice by enabling incarcerated people to cast absentee ballots. State advocates describe this step as crucial to achieving a healthier democracy. “If we want people to be full human beings and full citizens, we need to make sure that everybody has the right to vote,” Kat Brady, the coordinator of the state group Community Alliance on Prisons, told me. “What happens in the voting booth affects their families. The families are sending the money for phone calls, for commissary stuff, so it’s ridiculous to think that there’s no nexus between voting and citizenship and incarceration.”

Janet Mason, the chairperson of the legislative committee of the League of Women Voters of Hawaii, which has also championed this legislation, agrees that the right to vote is not something to take away. “People don’t lose their citizenship just because they’re sentenced to prison,” she said.

Brady and Mason both also argued that maintaining voting rights can facilitate eventual re-entry by connecting individuals to their communities. “If we want people to enter the community as full citizens, then what better way than to help them engage” while they are in prison, Brady said. The isolation of incarcerated Hawaiians is exacerbated by the fact that a substantial share are in out-of-state facilities; 1,450 are detained in a private prison in Arizona.

The state’s carceral system disproportionately ensnares Native Hawaiians and Pacific Islanders, who are therefore also disproportionately excluded from the electoral process.

According to a 2010 report by the Office of Hawaiian Affairs, Native Hawaiians make up 39 percent of the incarcerated population but only 24 percent of the general population and 27 percent of those arrested. The study found specifically that “for any given determination of guilt, Native Hawaiians are much more likely to get a prison sentence than almost all other groups, except for Native Americans,” and this even “controlling for age, gender, and type of charge.”

That measure is directly relevant to voting rights since Hawaii uses incarceration—as opposed to other forms of sentence like probation—as the specific basis on which to disenfranchise people who are convicted of a felony.

State Senator Maile Shimabukuro pointed to the overrepresentation of native Hawaiians in the state’s prisons to explain why she was sponsoring this reform. “It promotes engagement for disenfranchised segments of our society,” she told me via email. “This bill is a step toward re-integrating native Hawaiians and other minorities back into our political process, and showing them that their voices matter.”

Besides Hawaii, bills that fully abolish felony disenfranchisement have been introduced in at least six other states in the present legislative sessions.

Hawaii is one of two states, the other being New Mexico, where a full abolition bill moved past a legislative committee this year. Neither state is still considering such a step in their current session.

The director of Hawaii’s Department of Public Safety, which is responsible for the state’s prison system, came out in support of the legislation in a testimony in the Senate Committee on Public Safety, Intergovernmental, and Military Affairs. On Feb. 5, that committee unanimously voted to advance the legislation to the joint Judiciary and Ways and Means committees, where the bill stalled. “I was disappointed that the Judiciary decided not to hear it,” Brady said.

Senator Karl Rhoads, the Democratic chairperson of the Judiciary Committee, did not reply to a request for comment on his views on the legislation or on his reasons for not scheduling a hearing.

Mason told me that one obstacle may have been a belief among lawmakers that they need to first shore up the state’s voter registration procedures and absentee voter program. The legislature is still considering adopting automatic registration bills and reforms to its vote-by-mail system. “Those two things would greatly enhance the chances of getting the voting rights for incarcerated folks well positioned to pass,” she said.

Brady thinks that SB 1503 did not generate sufficient interest, and was mainly derailed by lawmakers’ indifference toward the issue. But she also said the bill’s future success hinged on a broader shift to the way in which state politicians’ approach criminal justice issues. “Hawaii can’t seem to get off the punishment train,” she said. “The legislature is very fearful to give any sort of rights to people who have violated the law. … We are so afraid of people who have drug problems or mental health problems—‘they’re in prison so they’re bad and we don’t want them weighing in on anything’—and I’m like, ‘Get a grip, guys.’”

Brady added, “To me it’s about racism, it’s about slicing and dicing the society to say they are good people and there are bad people and we have determined whose bad and we are going to keep punishing them.”

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