课程大纲：

INTODUCTION TO MOCK JURY TRIAL PRESENTATION IN CHINA
By Chief Judge Shackley F. Raffetto



Dean Wan Meng has been kind enough to allow me to come to speak to you and to put on a mock US jury trial, with law students from your law school participating in the rolls of the lawyers and court staff. I wanted to do this in order to offer you an opportunity to learn about the US justice system. This is a very good way to gain this experience, by actual participation. I think you will find this experience interesting and valuable to you in your future career as a lawyer, especially if you advise Chinese businessmen or companies doing business in the US.

As you may know, the US economic system is a highly evolved and sophisticated. There is a long history of development of the market or capitalist economic system in the US. The US has been based upon this market economy since its beginning over 200 years ago, and it has developed laws, regulations and procedures governing its complex business and market economy. The justice system in the US, where business disputes are usually resolved, is based upon the jury system, which is derived from the common law system, and both civil and criminal disputes are resolved by trial by jury.

One thing that I have learned in over 40 years of working as a lawyer and a judge in the US, is that businesses always have disputes. Disputes in business are unavoidable. The key for the lawyer, in helping businessmen who get into a dispute, is to help them understand the situation they have got themselves involved in and then help to guide them to resolve the problem. Usually, in my experience, the faster a businessman can resolve a dispute the better.

No businessman ever made a profit by being in a dispute; the goal should always be to get the dispute over with as soon as possible and get back to doing business. The businessman is in business to do his business, whatever it may be, and make a profit, he is not in business to be a party to a lawsuit and go to court! He is not trained for this and it will simply drain away valuable assets and resources and may harm his company’s reputation and ability to be successful in business. Your job as the lawyer is to help the businessman avoid and resolve expeditiously, the disputes that are always going to happen from time to time in business.

As a lawyer advising Chinese companies you may be called upon to advise or discuss a business problem with lawyers from a US law firm that is retained to represent the Chinese businessman, and also to explain to your client how the US justice system works. Even though the Chinese company may have retained a US law firm to handle the dispute, the client will look to you to explain the process. I hope that the experience we will have here in this mock trial will help you to understand the US justice system in order that you will be able to effectively advise your businessman client. You will be the guide for your businessman client through the US justice system, and they will be able to rely upon you advice!

As a result of our mock trial, you will be a better informed lawyer, better able to help clients who do business in the US or with US companies or lawyers. Also, I think you will find it interesting to learn how in the US system, in a jury trial, ordinary citizens are able to serve successfully as jurors and decide the case, even though they have no legal training or knowledge. You will see that it is a very open and transparent justice system and the people who serve as jurors become educated about the actual process of justice. Their experience as jurors has proved to be an excellent method to teach the jurors about their justice system and help to create the very high level of public trust and confidence that the public has in the courts and justice system in the US. In the US judges and the judiciary are considered to be the most trustworthy branch of government.

We will be conducting a mock criminal jury trial. We will make this training experience it as close to an actual trial as possible. The trial will be based upon an actual trial that happened in my courtroom in Maui, Hawaii, USA about a year or so ago. We will be conducting a criminal jury trial because it is simple and relatively short, but it will serve to provide the educational experience that you need to understand how US jury system works. A criminal jury trial is conducted almost identically to how a civil jury trial would be conducted. And, we will also talk about what differences there are between a criminal and a civil jury trial at the end, but the differences are really very small and few.


The first question then is: What is a jury trial or trial by jury and how does it work???

In a criminal jury trial a group of citizens from the community are selected at random as jurors to sit and listen to the facts of a case as presented by the lawyers. The jurors will then deliberate or discuss the case among themselves and decide what are the true facts. Then the jurors will compare the definition of the crime with the facts and decide whether the prosecution has proved with the evidence each element of each crime charged against the defendant, beyond a reasonable doubt.

The facts will be presented through the testimony of witnesses coming into court, swearing an oath to tell the truth, and answering questions asked by the lawyers. The purpose of the questions is to bring out the facts of the case about what happened. The lawyers begin by asking questions of the witnesses that will inform the jury about the case in what is called a “direct examination.” That is, the lawyer who calls the witness will ask “direct examination” questions – he cannot “lead” the witness. “Leading” the witness or asking a leading question is prohibited by the law of evidence.[1] A question is “leading” if the question is asked in such a way that it suggests the answer to the question. Example: “When you stopped your car at the stop light, did you see any other cars in front of you?” (This question is ok because it does not suggest the answer to the question). Or, “When you stopped your car at the stop light, you saw in front of you the defendant’s red Mercedes auto, isn’t that true??” “OBJECTION, YOUR HONOR!!! Leading question!!!” The Judge: “Objection sustained!”[2] (This question is not allowed by the rules of evidence because it suggests the answer, that is, that the witness saw a red Mercedes).

A leading question is prohibited by the law of evidence because it results in the witness not really testifying about their own, personal recollection of the facts. It is actually just the lawyer testifying! The witness is just agreeing with the facts that the lawyer has incorporated into the question. It is impossible to test whether there really were any cars in front of the witness whether the witness may actually remember what happened, or whether the witness should be believed and his recollection trusted, in order that the jury can decide what happened in the case. After all of the direct questioning has been completed, the other lawyer has the right to ask “cross examination” questions of the witness. These questions are different from the “direct” examination questions. On “cross examination” the lawyer is permitted, actually encouraged, to ask leading questions of the witness. The reason for encouraging cross examination-leading questions is that the lawyer is permitted to test the story being told by the witness, and thus the credibility or believability of the witness. The lawyer may even try to mislead the witness in order to test his memory and ability to accurately tell the jury about what happened. Naturally, if the jury watches a witness answer difficult cross examination questions successfully, then the jury is likely to think that the witness is truthful and has good credibility; and, that his testimony can be trusted and relied upon by the jury to decide the case. All of these questions must be carefully asked by the lawyers to do a good job of persuading the jury from the point of view of the lawyer’s client.

The job and duty of the jury is to listen to the evidence, decide what testimony is credible, believable, trustworthy and truthful; and, then the jury must decide what the true facts of the case are. After that then the Jury compares the facts they believe to be true with the definition of the crime (as given to them by the judge) that is charged against the defendant and decide whether each of the elements of the crime (there may be 4 or 5 elements depending on the crime) are true and proven by the evidence, beyond a reasonable doubt. Not beyond ALL doubt, but beyond a “reasonable” doubt. If the jury finds that element number 5 of a crime charged against the defendant has not been proved beyond a reasonable doubt, then the defendant must be found not guilty of that crime.

The jury listens and decides what the true facts are and whether those facts prove each of the elements of each crime charged, beyond a reasonable doubt. The judge will decide what law applies to the case, and then will tell (“instruct”) the jury about the law, this is mostly the definitions of the crimes. The judge will also instruct the jury about some additional procedural requirements that the jury must follow.

Therefore, the jury decides that facts; the judge decides the law.

The burden to prove each element of each of the crimes charged against he defendant beyond a reasonable doubt is always on the State – the Prosecutor. There is never a duty on the defendant to prove he is not guilty or that he is innocent. The defendant has no duty to prove anything or to offer any evidence or witness or to testify himself in the trial.

If the jury finds that the defendant is not guilty, then the State cannot appeal the verdict of the jury and that is the end of the case. In some nations the State has the right to appeal a verdict of not guilty, but not in the US. The State has only one opportunity to put the defendant on trial for the crime charged. One of the reasons for this rule in the US is that the State possesses enormous resources, compared with a defendant, and it is considered fundamentally unfair for a defendant to have to be put on trial more than one time for the same crime.

Basic Criminal Trial Process:

Charges and Plea:

In a US criminal trial the criminal charges are made against a defendant by the State through the office of the prosecuting attorney. There is a procedure to do this, that we can talk about later. The charges are brought, the defendant is arrested and he is brought before the court within 48 hours. He is informed of the charges against him (he can ask that the charges be read in court), he is appointed a free lawyer by the judge to represent him (paid by the State) if he cannot pay for one, he will enter a plea (guilty or not guilty) and he has the right to request a jury trial.

Right to Demand Trial by Jury:

It is important to point out that the defendant is not required to request a jury trial, if he does not want a jury trial and does not request one at the time he enters his plea to the charges, he cannot do it later. In that case he has waived his right to a jury trial and his case will be decided by a judge, without a jury.

In the US defendants almost NEVER fail to request a jury trial. Defendants always want a jury trial to decide their case. The defendant’s lawyer will always ask for trial by jury for the defendant. But, sometimes, in a very few cases, a defendant will waive his right to a jury trial and ask that the judge decide his case without a jury. Usually these are cases where there is a difficult legal question that will determine the outcome of the case, and the defendant believes it is better for him for the judge to make the decision. Or maybe the facts of the case are so terrible or inflammatory that the defendant believes that a jury would not be able to give him a fair trial. Example: a severe child sexual assault case. However, in actual practice we can always find a jury of fair minded people who can give a defendant a fair trial --- we may have to summon and question a large number of jurors in order to find 12 fair minded jurors in a particular case, but we can do it and we do all the time. Therefore, the defendant should always request a jury trial, he has nothing to lose. He can always waive his right to have a jury trial later in the case, if he decides that is better strategy.

Discovery of Evidence and Right to a Speedy Trial:

After the plea is entered, a trial date is set, in Hawaii and many States, the trial must be held within 6 months from the date the defendant is charged. The defendant has a right to have a “speedy” trial. A long delay in having the trial without the consent of the defendant is prohibited by the law. If the trial is not begun promptly, the defendant may move the court to dismiss the charges. The prosecuting attorney is required to give to the defendant all of the evidence and names of witnesses that he has that have been gathered by the police or investigators. There can be no surprise evidence by the prosecutor! Also, the defendant must give his evidence and names of witnesses to the prosecutor, if the prosecutor asks.

Trial Day/the Jury Arrives:

On the trial day, a large group of citizens are called by the court to appear in the courtroom. The judge welcomes the citizens and shows appreciation to the 50-60 people who usually report to the court. In my court this is usually on a Monday morning.

In my small State of Hawaii, with a population of about 1.2 million people, about 70,000 people are summoned for jury service each year.

Trial Begins:

Next the prosecutor and defense say whether they are ready for trial. Example: “The State is ready for trial, your Honor.” “The Defense is ready for trial, your Honor.”


Prospective Jurors are given an Oath:

The prospective jurors are give an oath to answer questions truthfully questions asked of them during the jury selection process, which is about to begin. Example: “Please raise your right hand. Do you swear to answer truthfully all questions put to you? If you will, please say ‘I will’.” From this time until excused, the jurors are instructed by the judge to not speak about the case to anyone or permit anyone to speak to them about the case. They may not investigate the case on their own or read any newspapers or consult other sources of information about the case or the witnesses or people involved in the case.

Lawyers Present Mini-Opening Statement to Prospective Jurors:

Next, each lawyer gives a brief, no more than 5 minutes, non-argument statement to the prospective jurors about what they think the evidence in the case will show. Example: “Ladies and gentlemen, this is a case about whether the defendant possessed illegal drugs, etc.,” Very brief – just in order that the prospective jurors can get a basic idea about what the case is all about and who is involved. This helps facilitate the jury selection process.

First 12 Jurors are Seated:

The names of the first 12 prospective jurors are called, drawn at random by the clerk of the court, and these people sit in the 12 seats in the “jury box” (where the jurors sit – they don’t just sit in the back of the courtroom – there is a designated place, called the “jury box”).

Judge and Lawyers asks Questions:

Next the judge asks questions to the prospective jurors to determine if anyone knows the defendant or knows about the case, etc., and whether the jurors can be fair and impartial and give the defendant and the state a fair trial. Then, the lawyers for each side are entitled to ask similar questions of the jury. Any prospective juror who is found to not be able to be fair and impartial as a juror is “excused for cause.” A juror may be excused for some other good reason, such as ill health problem, prior travel plans, the type of case, etc. Example: The prospective juror knows the family of the defendant. Usually, it is obvious when a citizen should not serve as a juror in a particular case. Some people will attempt to avoid their duty to serve as a juror, but jury service is required by law and the judge can enforce a citizen to participate. All of this takes about an hour or so. At the end of this questioning, each lawyer will tell the judge that they “pass the jury for cause. This means that after questioning, each of the lawyers finds that the panel of prospective jurors possesses the basic qualifications to serve as a juror in this case and can be fair and impartial. If either lawyer believes that a juror should be excused, then the lawyer will make his argument at this time and the judge will decide whether to excuse the prospective juror.

“Pre-emptory Challenges”:

After the questions by the judge and the lawyers, and the lawyers have “passed the jury for cause,” then each lawyer is entitled to exercise what we call “pre-emptory challenges.” We call these “challenges,” but really this is just the right of each side to excuse a certain number of prospective jurors from serving as a juror in the case, without having to give their reason for doing for doing so. Example: “Your Honor, at this time the defense would like to thank and excuse the juror seated in seat number 4.” It may be that the lawyer just did not like the prospective juror’s response to a question asked when the prospective jurors were being questioned, or for any other reason. This process of pre-emptory challenges gives each of the parties a direct right to effect the final composition of the jury and contributes to the sense of fairness to the defendant and the State in the jury selection process. The parties are not forced to accept the jurors; they have the right to cause 3 to be excused and they do not have to explain their reasons.[3] We go back and forth with this process until each party has exercised its right to excuse jurors. When a prospective juror is excused, then we replace that juror with someone from the back of the courtroom and each lawyer then has the right to ask the new person a few questions to determine if there is any “cause” to request that, new person to be excused.

Alternate Jurors:

After that process is completed, we will then call 2 more names and seat 2 “alternate” jurors, just in case someone of the original 12 jurors becomes ill or an emergency arises and they cannot continue to serve. In such an event, an alternate juror will be seated to take the place of the original juror who is unable to continue his service. Otherwise we would have to start the whole jury selection process all over again and it would be a waste of time and resources.

Trial Jurors given Oath:

After the 14 jurors are seated and questioned and selected, then the jury is given its oath to do its duty as jurors for this case and the trial is ready to begin.

Opening Statements:

After the jury takes its oath, each lawyer is permitted to make an opening statement to the jury. This is a brief statement by the lawyer about what he expects the facts of the case to be as they will be told by the witnesses in the trial. They can tell the story of the case as they think the facts will show. Of course, the actual facts of a case may turn out to be different because you never know what the witnesses will say until they actually come to court, swear the oath and give their testimony; and, answer cross examination questions put to them by the other lawyer. The purpose of the opening statement is to give the jury an overview of what the facts or the story of the case is believed to be, so the jury can gain an early understanding of the story of the case. Also, and this is important, the witnesses and evidence during the trial may not be presented in the same chronological order in which the events actually occurred --- witnesses may not be available, etc. Therefore, as a result of the opening statements the jury will have an overview of the case and what to expect in the beginning of the trial and they will be able to understand better and will be able to place the witness testimony in its proper perspective, even if it is out of sequence from the actual events of the case.

Right of Defense to “Reserve” Opening Statement:

The defense lawyer, if he wishes, may “reserve” his opening statement and not give it to the jury until after the prosecutor has presented all of his witnesses, and he may wait and give it just before he presents his defense witnesses, if he wishes. This is not usually done, but some lawyers think it is more effective to do it this way. It’s a tactical decision. If the lawyer waits until after the prosecutor rests his case, he will have seen and heard the prosecutor’s evidence and can give his opening statement taking this into consideration.

State/Prosecutor presents its Evidence and Witnesses:

After the open statements are given the judge will ask the prosecutor to present his first witness. Then, the prosecutor will call and ask questions of each of his witnesses until he has completed the presentation of all of them – we say he has presented his case and “rested his case.” As each witness is called to the witness stand to testify the clerk of the court will administer an oath as follows to the witness: “Please raise your right hand. Do you swear that the testimony that you are about to give will be the truth, the whole truth and nothing but the truth. Yes. Please be seated and state your name.” After each witness is questioned by the prosecuting attorney, then the defense attorney has the right to ask cross examination questions of that witness. Sometimes jurors are also permitted to submit questions to the judge to be asked of a witness, to clarify the facts to which the witness has testified. The judge will decide whether it is appropriate to ask the question and the lawyers may object. Also, jurors are permitted to take notes in writing during the trial to assist their understanding and memories, if they wish.

Motion for Directed Verdict:

When the prosecutor “rests” his case; then, usually, the defense attorney may make a motion (request) to the judge to dismiss the crimes or some of them based upon the argument that there has not been sufficient evidence presented by the prosecutor in his case (before he rested) upon which a reasonably minded juror could find or decide that the crimes charged have been proved against the defendant, beyond a reasonable doubt. Example: The crime requires that the defendant must have possessed a loaded gun, and there was no evidence presented that the gun, was in fact loaded with bullets at the time charged. Therefore, one of the elements of the crime has not been proved. There is no evidence from which the jury could conclude that the defendant possessed a “loaded gun.” The prosecutor may have showed that the defendant had a gun, but unless there is testimony that someone saw bullets, or the defendant admitted it was loaded, etc., then there is not sufficient evidence upon which the jury could find the defendant guilty beyond a reasonable doubt. Then the judge must dismiss the charge. If the judge grants the defense attorney’s motion, the charge is dismissed and that charge, based upon those facts, can never be brought against the defendant again. The State has only one opportunity to prove the charge it has brought against the defendant and if it fails, that’s it, it is final. Usually the judge denies the motion. This would be the usual outcome, because very few prosecutors would make such a mistake.


Defendant’s Right to Present Evidence and Witnesses:

Then the defendant has the right to present evidence and witnesses to the jury if he wishes to do so. The defendant has no duty to present any evidence or call any witnesses to testify, because the defendant does not have to prove he is innocent. That is, the defendant is presumed to be innocent of the crimes charged against him, unless and until the charges are proved, with evidence, beyond a reasonable doubt. The duty is always on the State; never the defendant. If the defendant does not present any evidence or witnesses, the trial is ended, the lawyers present their closing arguments and the jury will deliberate and decide whether the evidence that has been presented by the prosecutor proves the defendant guilty beyond a reasonable doubt.

Defendant’s Right to Remain Silent – No Duty to Testify or Explain:

The defendant has no duty to testify or explain his behavior. He has the right to remain silent and his silence may not be used against him or considered in any way by the jury in arriving at a verdict in the case. If the defendant decides not to testify, even if he presents other witnesses to the jury, then the judge will instruct the jury that during its deliberations, in evaluating the evidence, it is prohibited from considering in any way the fact that the defendant did not testify in the trial. That instruction is binding upon the jury. If it is ever discovered that during their deliberations the jury or a juror discussed the fact that the defendant did not testify and it appears that the jury considered that fact, the appellate court will reverse the conviction of the defendant for violating the judge’s instruction.

If the defense lawyer does go ahead and present witnesses, then he will ask each witness direct examination questions (because he is calling the witness) and they will be subject to cross examination by the prosecuting lawyer.

Rebuttal Witnesses:

After all of the defense witnesses testify, the prosecutor has the right to call what we refer to as “rebuttal” witness, if he wishes. A “rebuttal” witness is one that will testify that something a defense witness said is not true or that it happened differently. Rebuttal witnesses are not common, but they are occasionally presented. The reason this is not common is that the prosecutor usually has presented all of the witnesses who have any information helpful to his case during his presentation of the case, and so it is not necessary to call a “rebuttal witness.”

Jurors given a Written set of Jury Instructions to Read:

After the last witness is examined, then the judge will have each juror given a complete written set of the jury instructions (usually 20-30 pages) – setting forth the definitions of the crimes and other procedural guidance – and then the judge will read all of the instructions to the jury while the jurors follow along with their copies of the jury instructions. This is called “instructing” the jury on the law.

Closing Arguments by the Lawyers:

After the jury has been given a set of written jury instructions, and has been instructed on the law by the judge, then the lawyers have the right to present their closing arguments to the jury. This is when the lawyer can argue the facts that have been presented and show the jury how the facts prove or fail to prove each element of the crimes charged, or do not, depending upon which attorney is arguing. The State goes first. Then the defense lawyer argues. After the defense lawyer argues, the prosecuting lawyer may present a brief “rebuttal” argument to the defense lawyer’s argument. After that the case is completed.

During their arguments the lawyers may tell the jury which witnesses should be believed, who is not telling the truth, or what testimony is illogical or does not make sense. Or, perhaps, a lawyer may argue that the witnesses could not have seen what they testified to. The lawyers may not say what the lawyer believes to be true. The lawyers may only argue or “submit” to the jury that the “evidence shows”……..And, that, therefore, the jury should vote guilty or not guilty, etc. If a lawyer makes an improper argument the other lawyer may object and the judge will rule. If the improper argument is very significant it can result in a conviction being reversed upon appeal by a higher court.

Jury Deliberations to Reach a Verdict:

After the lawyers have presented their closing arguments, then the extra alternate jurors are excused and the remaining 12 jurors are instructed to withdraw from the courtroom and go the jury room (separate room) and begin their deliberations in private, and try to reach a verdict. If there is any evidence, such as photos, or documents, they are brought into the jury room so the jury can look at the evidence during their deliberations. If there are drugs the bailiff will be directed by the judge to just show the drugs to the jurors briefly. The same procedure is usual with guns and ammunition. The jury is also given a Verdict Form, which has questions on it as to whether the jury finds the defendant guilty beyond a reasonable doubt, or not guilty. They jury will fill out the form and notify the court that they have reached a verdict or not, and request to appear before the judge. In order to reach a verdict all 12 jurors must agree on the verdict, either guilty or not guilty. If the jurors cannot all agree, the judge will dismiss the jurors and then declare a “mistrial” of the case. If this occurs, then the prosecutor is free, usually, to bring the case to trial again and there will be a new trial.

The Jury Renders its Verdict:

The defendant, his lawyer, and prosecuting lawyer are summoned back to the court room, the jury is brought into the courtroom and the foreperson is asked by the judge whether the jury has reached a verdict. If “yes,” the foreperson (person elected by the jury to preside over their deliberations) informs the court and the judge directs the bailiff to bring the completed verdict form to the judge. The judge will look at the verdict form to determine if there any errors and that it has been correctly completed. If everything is in order, then the judge will ask the clerk of the court to “publish” the verdict of the jury by reading it out loud in open court.

“Polling” the Jury:

After the verdict has been published either lawyer may ask that the judge to “poll” the jury. Then the judge will ask each member of the jury to say “yes” if they voted for the verdict as the clerk has just read it or “no” if they did not. The verdict must be unanimous (100% of all jurors) each juror must have voted for the verdict, therefore if anyone says “no” then there is a problem and the judge must stop and make an inquiry into why the juror said “no” in order to determine if the verdict is legally sufficient or whether there was a problem, and then decide what to do about it.






“Mistrial”:

If there has been misconduct or a serious error or the jury cannot reach a unanimous verdict the judge may declare a “mistrial.” Mistrial means that there has been serious error and the results (verdict) cannot stand.

State/Prosecution cannot Appeal a Not Guilty Verdict:

If the verdict of the jury is Not Guilty – the judge will order that the defendant be released and the case is over – the State does not have the right to appeal and bring the case again. The case is over and the defendant can never be charged with these crimes based upon the same fact situation again. If there is an attempt to bring the case again, the defendant may claim the defense of “double jeopardy” and prevent it.

Guilty Verdict – the Defendant may Appeal:

If the verdict of the jury is Guilty -- the defendant may be taken into custody if he has bailed out or his bail amount may be increased because he has been convicted of the crimes and will be subject to sentencing. The judge will want to ensure that the defendant will not leave the jurisdiction before sentencing. It depends.

Duty of the Jury Completed:

After the verdict of the jury is received by the judge and published by the clerk of the court, the jury is thanked by the judge for its service and excused. The jury is released from its oath and the jurors may speak about the case and their experience as jurors to others. The judge will usually speak with the jurors after the trial is completed, answer any questions they may have and thank them again for their service.

Sentencing of the Defendant:

The judge will set a date for the sentencing hearing of the defendant, a pre-sentence investigation and report will be ordered by the judge to provide information about the defendant’s background and personal history. At the time of sentencing the report will be provided to the court, prosecutor and defendant and considered by the judge for purposes of the sentence. The judge may consider the defendant’s history, education, attitude, prior criminal record and any other factor relevant to sentencing in arriving at an appropriate sentence for the defendant. At the sentencing hearing the defendant may present evidence in extenuation and mitigation and testify if he wishes. At the end the judge gives the defendant a sentence based upon the sentences allowed under the law. A sentence to a term of prison, or a term of probation for 5 years, and up to 1 year in jail, are common sentences. In Hawaii we do not have a sentence of death, but many US States do impose a death penalty for certain, very serious crimes. The jury is not involved at all in the sentencing of the defendant.

That is a basic overview of how the jury trial is done. Now I will tell you a little about the history to the jury trial.






DRAFT 2 December 2011 [Work in progress, subject to change]


REPORT ON THE SUCCESS OF THE MAUI/MOLOKAI ADULT DRUG COURT: Success We Can Use To Create A New Paradigm For Criminal Justice in Hawaii
Copyright 2011 by Shackley F. Raffetto, Chief Judge, Second Circuit


Introduction
Our courts in Hawaii have for years now struggled to find an effective way in which to meet the challenge of drug addicted offenders who commit crimes and victimize our communities and our society.[1]

Our Maui Drug Court has been very successful in rehabilitating drug addicted criminal offenders for over a decade. The author believes that we can now draw upon this success, utilizing the central operative features of the Maui Drug Court that have made this success possible, in order to reconfigure our criminal justice system in Hawaii to be much more successful in its mission of rehabilitating and restoring our criminal offenders to society. Accordingly, this Report will begin with a brief survey of the central features of our Hawaii criminal justice system, for perspective; and, then, describe our Maui/Molokai Adult Drug Court program of the Second Circuit Court (Maui Drug Court). It will speak to both the need to significantly redesign our criminal justice system and the manner in which that might be accomplished, in order to create a new paradigm for our Hawaii criminal justice system for the 21st century.

Until now it has not proven possible to rehabilitate these drug-addicted offenders – not traditional criminals in the Author’s opinion – and, an effective model with which to address this challenge, and criminality in general for that matter, has eluded us. Because of this failure, society turned to mandatory sentencing schemes, which very rapidly filled our prisons. These mandatory sentencing schemes, even if they may have caused some decrease in criminality in the short run, did not solve the problem of continued illegal drug use and related crime.[2]
In The Beginning
At the time we began our Maui Drug Court, the Author had served as a trial judge in Second Circuit for about 4 years. It is painful now to remember this; but, at that time, the Author and his fellow judges were required by the law to sentence what were mostly young adult offenders who were caught with small amounts (“any amount” the statute said) of Meth to 5 years in prison.[3] These essentially minor offenders would certainly be made worse, not better, by sending them to prison to be incarcerated with our serious offender population. A sentence to probation, which could have provided for a condition of drug treatment, was not permitted by the law. At about the same time, the Author learned that a drug court had recently been created in First Circuit. As a result, the Author’s fellow judges in First Circuit had discretion in cases like these to refer minor Meth offenders to apply for treatment in the drug court, notwithstanding the mandatory sentencing provisions of the statute. If those offenders successfully graduated from the First Circuit Drug Court, the drug court judge would then dismiss their felony charges or terminate their probation early, depending on their particular situation. Unfortunately, there was no plan at that time to expand the drug court to the neighbor islands.

This was especially unfortunate because even at that time Maui was suffering from a severe, illegal drug problem. Maui County had been designated as a high impact, Meth trafficking jurisdiction by the US Department of Justice.[4] The use of Meth, was overtaking other illegal drugs as the drug of choice in Maui County. Meth was easily available and was devastating our community and flooding our courts with new criminal cases.[5]

About that time, then Maui Police Chief Howard Tagamori called a meeting of Maui Community leaders together and advised us that police resources alone would not be able to stop or solve the problem of Meth and Meth addiction that was beginning to inundate Maui County.

Based upon the obvious need to do something as soon as possible to help address this Meth problem and with knowledge of how judicial resources had been creatively used in First Circuit to develop a drug court, the Author determined to do what could be accomplished in order to develop a drug court in Second Circuit. A drug court in Second Circuit would allow citizens the opportunity to apply for treatment in a drug court and enjoy the same treatment exception from the mandatory sentencing law as those citizens residing in First Circuit. Creating and perfecting our Drug Court in Second Circuit has been a passion ever since.[6]

With the collaboration and support of the many outstanding judiciary staff and colleagues in Second Circuit, including my fellow judges, we were able to plan, create, and have in operation our Second Circuit Adult Drug court within one year. Within one year after opening our Maui Drug Court we were already treating 60 offenders. Today, in the Fall of 2011, we are treating 125 offenders and 386 have graduated, 84% of whom have not been convicted of another felony during the more than 11 years of our Maui Drug Court’s operation.

The Federal funding that we obtained in order to plan and create our Drug Court, with the help of the First Circuit probation department, required that the Author, as the drug court judge, together with our new Maui Drug Court Administrator, Ms. Lillian Koller, Esq., attend the national convention of the National Association of Drug Court Professionals (NADCP)[7], which is the major drug court professional organization in the US, in order to receive information and training and learn about resources for drug courts in the US.[8]

The Author was surprised and delighted to arrive at the convention to find in attendance more than 3,000 people from all across the US who were representing judiciaries, police departments, prosecutors, defense attorneys and public defenders, probation officers, drug court treatment programs and others, all motivated to collaborate together and interested in learning about in the effectiveness of drug courts. The convention was permeated with a wonderful, tangible atmosphere of positive affirmation and mutual support and cooperation, directed at finding ways to make drug courts live up to the promise of providing the solution that we all, really almost desperately, felt was needed to make the rehabilitation of drug related offenders truly effective in the US. These law professionals, who traditionally interact with each other in an adversarial manner, came together and put aside their traditional rolls and the rivalries inherent in the criminal justice system, in order to work together and to support offenders, and each other in order to rehabilitate offenders from drug addicted criminality.

After learning more about drug courts and attending the lectures and breakout training sessions at the convention, the Author decided to try to discover what the leaders of this movement believed are the reasons why drug courts actually work, after the unsuccessful efforts and failures of the past. Seeking answers, the Author sought out the President of the NADCP, the Hon. Jeff Tauber, Ret., and put the question to him: “Why have these new drug courts proven to be so successful in stopping addiction and the criminality of drug offenders?” Unfortunately, he answered my question with a question (he is a lawyer and retired trial judge, after all!) – He said “Why do you think drug courts work?” This of course was not an answer, but it did stimulate much thinking based upon what the Author had learned at the comvention.

Since that day, however, the Author has considered this question at length during the following 11 years and has concluded,[9] that it is the synergy created by the combination of the authority, presence and prestige of the judge, the drama and majesty of the court and the judicial process, coupled together with the offender’s lengthy cognitive behavioral treatment and expectation of benefit for successfully graduating from treatment, including the favorable disposition of an offender’s case, that provides the enormous motivating power that causes offenders to change their thinking and behaviors and to successfully rehabilitate. This combination of the authority figure of the judge, incentives and substantial benefits promoting success, sanctions and potential penalties for failure, and other factors, inherent in the judicial process, together with a highly effective, long term, treatment regime, generates motivation and success that is simply not possible with other paradigms, institutions or programs. The Author’s question which he put to the NDACP President has, as usual, been answered by experience.

About Crime in Second Circuit (Maui County)
Next, this Report will provide some perspective on the magnitude of the problem of illegal drug use and crime in our tri-island community of Maui County. This information will demonstrate to the reader and bring into focus the dire crisis that energized our desire to change to a more successful way in which to operate our criminal justice system, that we faced and that has driven our effort to create our Maui Drug Court.

Each year about 800 new felony criminal cases are filed in Second Circuit Court (Maui County). Felony criminal cases represent serious crimes against our citizens and their property; and, collectively, represent substantial harm to the wellbeing of our community.

As a trial judge with over 24 years of first-hand experience in the Hawaii criminal justice system, I estimate that at least 95% of these felonies are crimes for possession of, or for stealing of property to possess, illegal drugs. Almost always the drug involved is Meth, though there are some other illegal drugs involved as well. The “starter” drug is almost always marijuana, which is a “gateway” drug which then causes at least some offenders to progress to Meth use and serious, criminal addiction.[10]

Each felony criminal case usually includes multiple “counts” of individual crimes charged.[11] Typically, an offender is charged with at least two or three of these counts in each criminal “case.” Sometimes there are as many as ten or even more crimes charged (credit card theft, forged checks, car and home break-ins, etc.) in each new case. These individual counts charged are gathered together under one criminal number as a “case;” and, then, “charged” against the offender -- filed in Court. If an offender speaks about “my case” he or she may actually be referring to 10 individual crimes being charged against them as their “case.” Therefore, when we understand that we are experiencing 800 new criminal cases filed this year, when one considers the typical multiple counts of crimes usually charged together in one case, this means these 800 felony cases filed in court include probably several thousand individual crimes each year against offenders which must be processed by our Second Circuit Court.

It is very important to understand that these figures for cases filed in Second Circuit Court represent only a small fraction (“tip of the iceberg”) of the crimes that an offender has actually committed, which have harmed our community, but with which he or she has not been formally charged. Some experts estimate that a typical defendant has committed at least ten crimes for every crime for which he or she is actually arrested and charged.[12] When we are speaking of Meth addicts, who are not employed and who are driven by their compulsive addiction to constantly replenish their drug supply, day after day, he or she has probably committed many more than merely ten crimes for each one eventually charged against them and filed in court. This cumulative harm to persons and to property, the harm to the future of our young people and the harm to our families, caused by these crimes is enormous and is ongoing. The impact upon our community of this harm is impossible to quantify accurately, but without doubt, is highly destructive and corrosive to the lives of our citizens and to our society.

Additionally, and very importantly, we must always keep in mind when considering our criminal justice population that our citizens who come into our criminal justice system as offenders charged with having committed crimes are first and foremost, members of our community and part of our community. By this the Author means to emphasize the fact that even if an offender in Hawaii is sentenced by a judge to a long prison term, he or she will eventually serve their term, be released and return to their home, in Hawaii.[13] Very few, if any, of these offenders will leave our State after being released from prison. Therefore if these offenders have not been successfully rehabilitated they are highly likely to again lapse into using illegal drugs and then commit additional crimes (recidivate), causing additional harm. They will continue to offend and pass through the “revolving door” of our criminal justice system, harming our fellow citizens and their property, until they are sent back to prison or die.

We must recognize, then, that these offenders in our community who are addicted to illegal drugs, are a community problem, an epidemic, for all of us to be concerned about. They are not going to conveniently go away or stop committing crimes unless they are successfully rehabilitated. Therefore, it is absolutely essential that we as a community come to terms with this truth; and, together, reevaluate our methods and recommit ourselves to take effective action to rehabilitate our criminal drug offenders, in the interest of ourselves, our families, for our mutual public safety and survival.

Addiction Begins Early, Progress Swiftly; Marijuana Is The “Gateway”
Typically, the offenders we see in our Maui Drug Court are, within six months of beginning to use Meth or at the latest just a few years, homeless, jobless, and they will do anything to get Meth! A major precipitating event in the destabilization and alienation of these offenders, leading to their experimentation with illegal drugs, is often the loss of or divorce of their parents, if they had an intact family in the first place, which many do not.

The Author has read more than 800 of the “trigger letters,” which an applicant to the Maui Drug Court is required to write to the judge when they are admitted into our Maui Drug Court, describing their family and drug use history. The Author decided to require the trigger letter to provide a vehicle to learn first hand, what each of these offenders at least believes occurred in their lives that caused him or her to choose to use illegal drugs. The Author has retained all of these letters since the program began. They are remarkable documents that provide valuable insight into these offenders’ lives and the thinking of these mostly young people from our community. The letters make for fascinating and revealing, though very sad and often tragic, reading. The Author believes this initial sharing by our offenders is also a valuable method with which to sensitize our case managers, who also read them when they are initially written, to the challenges that these offenders face in their lives, as well as to assist our case managers in gaining a better understanding of how to support our offenders in changing their lives. These “trigger letters” also represent an offender’s first step in acceptance and openness to our program.[14]

The letters tell very similar stories, synthesized as follows: A 12 or 13 year old adolescent begins experimenting with changing his or her consciousness by taking illegal drugs, almost always smoking marijuana and drinking beer, which are often made available to them by their peers or, alas, often, by their own parents or family members. Then, marijuana use becomes chronic and eventually they drop out of school or lose their jobs.

Later on, these young people almost always advance to experimenting with cocaine and other, stronger drugs. Eventually, many will try Meth, which is easily available, low cost, highly addictive and very powerful. And, then, they are, literally, lost, and their life spirals out of control in search of Meth. This is the addiction path and pattern for about 95% of the 800 people who have written trigger letters for the Author over the past 11 years.

We must be clear about the fact that the permissive attitude here in Hawaii about marijuana use encourages this behavior, in spite of the fact that marijuana is illegal and a crime to possess (with the exception of “medical marijuana”), grow or sell. These offenders often say that they thought it was “cool” or “grown up” to smoke marijuana, in order that they could be like their friends or people that they admired. The problem with a “gateway” drug is that it increasingly leads to something much more serious. In Maui it will usually, eventually lead to the use of Meth.

If the offender is a young woman and she has children, imagine the effect of the mother’s use of Meth upon her impressionable little children whose healthy development requires bonding, nurturing and attention. Tragically, these young offenders, both men and women, become essentially amoral and without shame about the behavior they engage in to obtain the drugs. They steal from their parents and relatives; they prostitute themselves and allow themselves to be used and abused. Physically they change as well. It is common for a Meth addicted person to lose many of their teeth. We see 22 year olds with no teeth, except rotting stumps and gums. They do not smile. They lose significant weight, their nutrition falls off and they develop scabs and sallow skin coloration.

As a result of their new, amoral behavior, these offenders are often rejected or disowned by their families. It is very common for these offenders to be homeless and living on the streets or on the beach, when they are taken into police custody. Few of the offenders coming into our Maui Drug Court had a home, a car or a job when they were arrested. All of this is a tragic and common consequence of addiction to Meth. Then, these offenders land in jail, all within six months or at the latest a very few years.

Most likely we will begin to see the larger societal consequences of parental Meth use by the mothers of children, and its associated criminality upon the offenders’ children beginning to manifest over the next decade or so. These consequences are bound to be severe and negative, and will involve our criminal justice system to an even greater degree.

The Destructive And Unusual “Crime” of Drug Addiction
Illegal drug addiction presents unique challenges to criminal justice. Addiction to Meth, by itself is not a crime. It is the possession or selling of illegal drugs that is the crime; addiction, is the driving force behind the crime.

We know that Meth addicted offenders do not steal the property of others or break and enter their cars or homes, in order to make a payment on their BMW or beach-front condominium; they commit these crimes in order to obtain illegal drugs with the money they obtain as a result of the theft. The criminal behavior of an addict is far different from that of a disgruntled offender who harms another or their property because of a perceived wrong or act of disrespect, or to “get even;” that is, this crime is very unlike the behavior or actions of a typical, common criminal; one who is not driven by addictive compulsion.

For illegal Meth users, the addiction is a profound craving for an altered state of consciousness that is accompanied by a significant distortion of their sense of right and wrong. The offender’s most basic and fundamental human instincts of self-preservation and survival are so grossly distorted, shut down or out of control that he or she will engage in behavior, literally any behavior, which they perceive to be likely to enable them to obtain Meth.

This incredibly strong craving for a euphoric, disoriented mental state and compulsion to feel good, to feel powerful or in control that offenders apparently receive from using Meth is an extraordinary and profound statement of how negative is their self-perception or even self-loathing.

An offender may have a cognitive, existential understanding of the wrongfulness or dangerousness of his or her conduct and the harm that he or she is causing to themselves and to others, but they, nevertheless, continue to take incredible health and personal risks and continue to commit crimes, harming others and breaking the law.

To compound the situation further, offenders apparently do not experience remorse or are not capable of being deterred at all by any normal feelings of guilt nor does either shame or sanction deter them from their lawless behavior.

Finally, because the offender’s behavior is being driven by strong, overwhelming compulsive addiction he or she will keep acting out and simply cannot stop by their own power or of their own volition, but will be driven to continue their desperate, destructive behavior until they either die or are arrested and taken into custody in the criminal justice system.[15]

Drug Addiction: A “Disease” Not A “Crime”
Illegal drug addiction is commonly described as an illness or disease; a brain disease. It is unclear whether an offender who is addicted to illegal drugs carries a genetic predisposition to addiction that is triggered by drug use or, on the other hand, whether use of the drug triggers changes in the brain that result in addictive compulsion. Whatever the cause of illegal drug addiction may be; certainly, it is a unique “crime” that presents unique, challenging problems, and many questions, that have confounded us. But, what is clear is that, whatever the cause and effect of drug addiction may be, if we can successfully address the addiction and cure the disease, or if not cure it then manage the disease in remission, then, we can prevent the possession, or selling of the illegal drugs, and attendant other crimes, and, therefore, significantly reduce community harm. However, though we name addiction to be a disease, a medical solution has not proved to be helpful.

Although we may use a “medical” model to describe and try to understand drug addiction, the treatment that has proven to be successful has evolved from our legal institutions in the form of a psychological/educational or therapeutic jurisprudential treatment model, which is utilized in order to leverage change in the offender through bringing to bear the authority and power of the judicial system; by the drug court judge, in a drug court.[16] By the time an offender has completed the relatively long drug court treatment program he or she has been re-made or retrained to think effectively and successfully, initiate and sustain relationships, make life decisions in an effective and successful manner and is imbued, often for the first time, with a feeling and belief in their own success, ability, and self. And, they begin to believe that they again have a future! If they, in addition, have built a sober support and continue to remain engaged with the recovery community, then the prognosis is very good for these offenders to live a successful, normal life.

The drug treatment knowledge, expertise and technique that we can now bring to bear upon an offender is much more sophisticated and effective than it has ever been in the past. However, this alone would not be successful if, for instance, treatment programs were run out of a community medical clinic and supervised by a medical doctor and staff, as opposed to in a court and by a judge. It is the power and gravity of the judicial process and of the judge operating in the context and with the authority of the drug court to leverage and control the offender and encourage and enable the changes that the offender must make in their thinking and behavior that makes the difference.
The Hawaii Criminal Justice “System”
In order to understand how drug courts fit within our Hawaii criminal justice system it will be helpful if we next briefly review the essential structure of our criminal justice system, identify some of its institutions and, generally, describe the manner of its operation with respect to illegal drug offenders.

Entities of the Hawaii Criminal Justice “System”
The criminal justice system in Hawaii is made up of government institutions and entities, including the Hawaii Judiciary, (which includes the Adult Client Services/probation officers – the traditional “probation department”), the prosecutor, defense attorneys/public defender, the Department of Public Safety (PSD),[17] county police departments, and the Department of Health (mental hospitals). These government organizations are supported by the work of other, subordinate, entities and organizations, such as the many treatment and care providers that supply services, training, guidance and planning, such as the Interagency Council on Intermediate Sanctions (ICIS), which will be described later. All of these various entities interface and work together to help address the problems of and manage the supervision and recovery of offenders who are convicted of causing harm in our State.

The Judiciary of Hawaii is comprised of all of Hawaii’s courts and their supporting functions. This includes our trial courts, Family Courts, Intermediate Court of Appeals and the Supreme Court. The trial courts are the District Courts, Family Courts and the Circuit Courts.[18]

The District Courts are courts of limited jurisdiction. With regard to their criminal jurisdiction, these courts handle, primarily misdemeanor crimes; crimes for which the potential penalty can be up to one year in jail and a $2,000 fine.[19] Civil cases limited by size and type, as well as traffic related offenses are also processed in District Courts.[20]

Family Courts process juvenile criminal offenders, divorces, adoptions and related legal matters involving the family, as well as juvenile and family drug courts that now operate in each Circuit.[21]

Circuit Courts are courts of unlimited jurisdiction. This means that all matters that cannot be brought in the District Courts or Family Courts can be brought before and decided by the Circuit Courts. Most jury trials occur in the Circuit Court; some occur in the Family Court.[22] When an offender demands trial by jury in the District Court his or her case is transferred to the Circuit Courts for processing. Finally, Circuit Courts handle all felony cases, and operate adult drug courts in each Circuit.[23]

A felony crime is generally described as a crime for which the maximum penalty is over one year in prison and a fine in an amount that depends upon the Class of felony. Felonies are divided into Class “A”, Class “B” and Class “C” felonies, depending upon their seriousness.[24] Class “A” felonies are the most serious crimes and carry or require a mandatory term of 20 years in prison or life in prison, with or without the possibility of parole, depending on the crime.[25] Class “B” felonies provide for a potential of a 10 year prison term and up to a $25,000 fine or up to 18 months in jail and 5 years of probation and a fine.[26] Class C felonies carry the potential of a 5 year prison term and a $10,000 fine or up to one year in jail and 5 years of probation and a fine.[27]

A term of probation is possible if an offender is sentenced to a Class “B” or Class “C” felony. And, the term of probation may be conditioned on a jail term, as mentioned above, and any other condition that the judge determines will be helpful and appropriate in assisting in the rehabilitation of the offender and in keeping the community safe, such as drug treatment, community service, anger management-alternatives to violence treatment, sex offender treatment, mental health treatment, etc.[28] For example, if an offender is sentenced for a Class C felony he or she may be sentenced to 1 year in jail and 5 years of probation. The offender who receives this sentence will go to jail, serve the one year and then be released into the community to serve the remainder of his or her 5 year term of probation ordered by the court at the sentencing and perform any conditions of probation ordered by the judge.

The “Process” of the Criminal Justice “System”
A person who is charged with having committed a crime is first brought before the court to enter a plea.[29] If the plea is “not guilty” and the offender is charged with a felony, the case will go before a jury usually, and if the offender is found guilty he or she will appear before a judge to receive a sentence. Most often, however, the sentence is ordered as a result of a plea agreement between the offender and the State prosecutor. In either case, the judge then imposes a sentence. A sentence in Hawaii may be directly to prison or the offender may be placed on a term of probation, subject to conditions, one of which may be to serve a period in jail, as provided by law.[30]

The Factors in Determining A Sentence
The judge will consider various factors set forth in the law in deciding an appropriate sentence for an offender, however, if there has been a plea agreement the judge may impose a sentence that is provided for in the plea agreement between the offender and the prosecutor. We do not have a sentence or penalty of death in Hawaii. When a judge imposes a sentence upon a criminal offender the judge must consider all of the factors set forth in HRS Sec 706-606.[31] In Hawaii, our trial judges have a great deal of discretion in fashioning a criminal sentence which will, hopefully, result in the offender becoming a law abiding citizen in the future as a result of his or her sentence. Finally, a very important goal of our criminal justice system and the sentence imposed by the judge is to reduce and prevent recidivism by criminal offenders, in order to stop the offender from committing more crimes in the future.[32]

As a part of any sentence imposed upon an offender, and in addition to any jail, prison term or term of probation, an offender may also be ordered to pay a crime victim compensation fee, certain fees for genetic identification and restitution to the victim, as well as a fine and/or other financial payments, depending upon the particular crime.[33]

The Probation Option
In Hawaii if a judge sentences an offender to probation, typically for a 5 year period, the legal responsibility for supervision of that offender remains with the judiciary and is provided by the Adult Client Services (“probation”) Department. A probation officer, who is an officer of the court with powers of arrest, is assigned to work with and keep track of the offender.

Generally, probation is intended for the community supervision of those offenders who are, typically, convicted of less serious crimes or first time offenders. These offenders will remain, while being supervised by their probation officer, subject to the jurisdiction and authority of the sentencing judge, who may require that the offender come back to court from time to time to review his or her progress or status.

Probation in Hawaii is a department and function of the Hawaii Judiciary. In some states probation is a function of the executive branch of government. Traditionally, probation meant community supervision of an offender by an assigned probation officer who tracked the whereabouts and activities of the offender to ensure he or she stayed out of trouble for the duration of their period of probation. It is a substitute for a prison sentence, and, obviously, much less costly for society.

In more modern times offender supervision has been expanded to include additional requirements of the offender, including such things as testing the offender for illegal drug use, testing and evaluation of the criminal risks and treatment needs of the offender, as well as referral to various kinds of treatment or training programs aimed at improving an offender’s likelihood of staying crime-free, and returning the offender to society to be a successful citizen.

Treatment of offenders serving a term of probation is usually accomplished by referring offenders to specialized programs that the judiciary pays for pursuant to contracts the judiciary enters into with private treatment providers. Typically, probation officers do not engage in what would be understood to be “treatment”.

A probation officer is often responsible for the supervision of the cases of a very large number of offenders. For instance, currently the average “case load” for which each probation officer is responsible to supervise is about 135 offenders each in Maui. Since effective supervision by the probation officer ensures public safety, it is important that an individual probation officer not be required to supervise too large a number of offenders, in order that the probation officer will be “spread too thin” to be effective. Supervision of about 25-55 offenders would be considered reasonable for Maui adult probation at the present time. We can see, then, that our probation officers supervise case loads that make it very challenging for them to effectively perform their jobs, much less engage in any kind of “treatment” for those under their supervision.

If an offender inexcusably fails to perform a substantial term or condition of his or her probation order, then, after being afforded an opportunity for a hearing by the court, his or her probation may be modified or revoked.[34] In the event that the offender’s probation is revoked, the judge may re-sentence the offender to the same sentence, including a prison term, as could have been originally ordered by the court at the original sentencing, as provided by law.[35] Typically, an offender may be given a second opportunity to serve his or her sentence on probation; however, an offender who continues to inexcusably fail to perform substantial terms and conditions of his or her probation order may eventually be sentenced to a term of prison, with no further probation. Failure of offenders to perform their court-ordered conditions of probation is, unfortunately, a relatively common occurrence.

The Treatment Option
As our prisons began to fill up with criminal drug offenders, it became apparent that simply placing these offenders into prison does not, ipso facto, cure their addiction or prevent the offender from committing another crime after the offender leaves prison.[36]

Various treatment and training programs have developed over the years the purpose of which are to assist in the rehabilitation of these offenders during their term of probation. Usually, the sentencing judge will set forth a list of conditions, including treatment of various types or training programs that are designed to assist an offender to succeed on probation, as a part of an offender’s sentencing order.

Included among these programs are drug treatment programs. If the judge provides for drug treatment in the probation order the probation officer may then direct an offender to obtain a drug assessment to determine the nature and extent of necessary drug treatment, to help the offender overcome his or her addiction problems. However, with a few exceptions, these programs are of relatively short duration, when compared to drug courts, and have not been proven to be particularly successful in preventing illegal drug use or crime, especially after the offender’s term of probation has finished. Programs vary in length, but traditionally an out-patient program might run for 30-60 days. By contrast our Drug Court requires at least one year of participation and most offenders take two or more years to complete treatment. Unfortunately there is no data to show that any of these probation drug treatment programs, with the exception of drug courts, has been successful in reducing offender recidivism.

The Combination Sentence of Prison & Parole
On the other hand, if an offender is sentenced directly to prison without a term of probation, which is likely for the more serious crimes, for offenders with substantial prior criminal records or for offenders whom the judge has determined to be dangerous to the community, then jurisdiction over that offender transfers to the Hawaii Department of Public Safety, of the executive branch of Hawaii government.

In certain situations, usually where the offender has prior criminal convictions, the law requires a judge to impose a prison sentence. In such cases a sentence to probation and release on parole are prohibited by law, until such time as an offender has served the “mandatory” period of their prison sentence. After this “mandatory” portion of an offender’s prison sentence has been served, it is the Hawaii Paroling Authority (Parole Board) that will determine the length of time an offender must serve incarcerated, before being eligible to be released on parole.

The Parole Board has broad discretion to decide when, prior to having served an offender’s prison term as originally ordered by the judge, an offender may be released from prison and placed on parole status to continue to serve his or her sentence in the community. While serving his or her sentence in a parole status an offender is supervised in the community by an assigned parole officer, who is an employee of the Hawaii Department of Public Safety. Parole provides for the supervision of an offender in a manner similar to probation, including possible referrals to various treatment programs, including, at least in Maui, the Maui Drug Court treatment program.

The sentencing judge does not re-acquire jurisdiction over an offender when he or she is granted parole status by the Parole Board. However, the judge will acquire jurisdiction over an offender if he or she should, thereafter, commit any new crimes. Furthermore, if the offender should fail to abide by any conditions placed upon his or her parole status, the Parole Board may revoke an offender’s parole and order that the offender return to prison to continue to serve the sentence originally imposed by the sentencing judge, incarcerated.

Before an offender is paroled into the community the Parole Board requires the offender to successfully participate in and complete any treatment programs it decides are appropriate for that offender, including an excellent, in custody, drug treatment program operated by PSD named “Kashbox,” as well as to successfully complete the PSD “work furlough” program in which an offender is allowed to seek and then perform a job in the community while still residing at the local jail.



The “Revolving Door” Of Our Criminal Justice “System”: Recidivism of over 50%
Unfortunately, even with all of the available programs and opportunities for rehabilitation offered by and through the Hawaii Judiciary, the Hawaii Department of Public Safety and other entities, the recidivism rate for all of our criminal offenders in Hawaii has historically been over 50% for those offenders sentenced to prison and probation and/or parole.[37] This means that more than one-half of all of our offenders in our Hawaii criminal justice system commit additional crimes and return to jail/probation or prison. Obviously, our offenders are not being successfully rehabilitated. Truly a “revolving door” of criminal justice!

Because of our historic, and tragic, failure, despite our good faith and substantial efforts, to successfully rehabilitate our criminal offenders, the epidemic of Meth addiction, which is dominating our criminal justice system now, has created a state of crisis in our criminal justice system. This crisis compels us to review the substance and process of our current criminal justice system in order to craft a much more effective system with which to successfully meet the challenges of our Meth epidemic and criminality in Hawaii. The Author is certain that we can create a more effective system for rehabilitating our Meth addicted criminal offenders if we commit ourselves to making the necessary changes.

We now have the data and “tools” to be much more effective in reducing and preventing offender recidivism. To begin with we can redesign our criminal justice system taking into account and incorporating aspects of our successful Maui Drug Court treatment program that have proven to reduce recidivism for Meth addicted criminal offenders to only 16% for over the past 11 years. Other improvements and refinements are also possible. One of the purposes of this Report is to, inter alia, stimulate and encourage thinking, discussion and action to “rehabilitate” the Hawaii criminal justice system to help us to be more effective in meeting this crisis in our criminal justice system.

At this point, then, it will be helpful to the reader, to describe some of the recent developments in our Hawaii criminal justice system that have begun to make a difference, and that have potential to help us to be more effective in addressing the challenges of our Meth epidemic.

CJ Moon’s Vision: The Hawaii Judiciary Committee on Intermediate Sanctions & ICIS
In the fall of 2000 the Chief Justice of the Hawaii Supreme Court, Ronald T.Y. Moon, established the Hawaii Judiciary Committee on Intermediate Sanctions. He charged the Committee to study and recommend the best methods to rehabilitate criminal offenders and reduce recidivism in Hawaii, through the use of “intermediate sanctions.” “Intermediate sanctions” refers to sanctions, punishments or interventions, including treatment programs, that a court may order a criminal offender to participate in that are “intermediate” between the commission of the crime and the sentence of an offender to prison. For example a court might order that an offender successfully complete a drug court treatment program as a condition of an offender’s sentence to probation. The goal of intermediate sanctions is to rehabilitate criminal offenders and reduce harm in the community without the necessity of sentencing an offender to prison. It also was hoped that the use of intermediate sanctions would result in cost savings by reducing the number of offenders who are sentenced to terms in prison. Chief Justice Moon also directed the Committee to work to expand drug courts to all Circuits in our State.[38] During its deliberations the Committee called for an aspirational goal of reducing recidivism in Hawaii by 30% within 10 years.

The Committee issued its report in July, 2001 setting forth a number of initiatives and recommendations and calling upon the other agencies in the Hawaii criminal justice system to join together with the Judiciary to establish a Council to undertake this work for the future.[39]
As a result of this initiative, and in order to fulfill the recommendations and intent of the Committee’s report, in April, 2002 the Interagency Council on Intermediate Sanctions (ICIS) was created by the constituents of the Hawaii criminal justice system. ICIS, includes among its members the Hawaii Judiciary, the Department of the Attorney General, PSD, the Department of Health, the Office of the Public Defender, the Hawaii Paroling Authority, the Department of the Prosecuting, City & County of Honolulu, and the Honolulu Police Department. The mission of ICIS is to advance a shared vision for reducing adult offender recidivism, expand the use of drug courts, and to implement a plan for enhancing the use and effectiveness of intermediate sanctions throughout the Hawaii adult criminal justice system.

ICIS recognized, however, that before an intermediate sanction or treatment may be effectively ordered for an offender, it must first be determined which treatment or intermediate sanction is most appropriate to be ordered for a particular offender. The intermediate sanction must be of a type that is most appropriate to assist in an offender’s rehabilitation. This determination should be accomplished by assessing and analyzing the characteristics and circumstances of an offender, in order to obtain information relevant to his or her history, personality, intelligence, and other information about the offender that may reasonably be thought to bear upon his or her criminal propensities and behavior. An assessment may be accomplished by using an “assessment instrument” to gather this information. An assessment instrument is, basically, a questionnaire used to gather the information from and about an offender.

In Hawaii at that time, the various agencies working with offenders in our criminal justice system had been employing assessment instruments in order to assist them in their work with offenders. These agencies, however, were for the most part utilizing assessment instruments that were different from each other. While these instruments provided some useful information about an offender, the fact that the instruments differed from one agency to another obstructed the meaningful sharing of useful information about an offender or the useful measuring of an offender’s progress in rehabilitation. In addition, none of the agencies was utilizing a “third generation” assessment instrument.

A “third generation” assessment instrument is the most desirable because it provides information about an offender’s “dynamic” criminal risk factors.[40] A “Dynamic” criminal risk factor is subject to possibly being changed for the better with appropriately targeted treatment. “Criminal risk factor,” is a term of art used in criminal justice to refer to the events, factors and conditions in an offender’s life which are thought to bear upon and contribute to an offender’s criminal behavior, both past and present. The theory is that once an offender’s criminal risk factors are identified, if they are subject to change with treatment (“dynamic”), then those risk factors may be targeted with appropriate treatment in order to reduce their negative influence upon the offender. As a result, hopefully, an offender’s thinking and behavior will be changed and he or she will be less likely to commit another crime. And, very importantly, an offender may be re-assessed over time and the results compared in order to determine whether and to what extent there has been change. If an offender’s scores are different upon re-assessment, these results could indicate that the offender is progressing or regressing, or even that the treatment provider’s program has changed or is in need of reevaluation for effectiveness. Therefore, one can appreciate that a careful, accurate assessment is essential and can be very helpful in assisting with effective offender rehabilitation. At the very least the use of a high quality assessment instrument aids in the creation and operation of a rational, coherent over all strategy and methodology for addressing the rehabilitation of criminal offenders.

The first order of business for ICIS, therefore, was to identify and agree upon for use an appropriate third generation assessment instrument that would be utilized by all of the criminal justice system agencies in Hawaii to assist them in their mutual work with criminal offenders.

Assessing Criminal Risk – The “LSI-R”
After a great deal of investigation and discussion and with the help of expert technical guidance, ICIS adopted an assessment instrument known as the “LSI-R” for use in Hawaii. “LSI-R” means “Level of Services Inventory – Revised” (LSI-R). The LSI-R is a “third generation” assessment instrument. It is a sophisticated and detailed questionnaire that is administered to an offender by an interviewer. The results of this interview are then tabulated, revealing the “criminal risk factors” for that offender. The reader may be thinking that if the LSI-R is simply a questionnaire, how is it possible to be certain that the answers given by an offender are true and accurate; rather than simply misleading information that an offender desires us to think is the truth. This concern is effectively addressed by requiring that the interviewer be trained and certified as qualified to administer the LSI-R using an interview technique named “Motivational Interviewing.” “Motivational Interviewing” is a sophisticated method of asking questions to obtain accurate and truthful information to the LSI-R questions. The interviewers who administer the LSI-R in Hawaii are required to be certified in order to utilize this motivational interviewing technique and they are very effective at obtaining accurate information. The LSI-R and this method of obtaining information from an offender have been verified as reliable for this purpose in the US, Canada, and elsewhere. The members of the ICIS were very concerned if we were to adopt the LSI-R for use with the Hawaii criminal justice system population that it be accurate, as well as appropriate for use, with Hawaii’s diverse and unique criminal justice population. After very careful evaluation, all of the ICIS Council members, and the institutions they represent, agreed that the LSI-R should be adopted for use by the ICIS members and with offenders in the Hawaii criminal justice system.

As referred to previously in this Report, a unique, very useful, and very interesting capability of this third generation assessment instrument is that it provides data about an offender that includes the identification and rating of his or her “criminal risk factors” that are “dynamic,” in addition to an offender’s non-dynamic risk factors. An offender’s “dynamic” criminal risk factors are identified by the LSI-R in order that he or she may be targeted with appropriate treatment, as a part of an offender’s program of rehabilitation. An example of a “dynamic” risk factor is drug addiction.[41] We know that if an offender is addicted to illegal drugs his or her risk of committing another crime is high. There is a strong correlation between illegal drug use/addiction and criminal behavior. We also know we can help an offender with his or her addiction by providing them with effective treatment. We may thereby reduce the significance of that risk factor as a causative factor in an offender’s future criminal behavior. Therefore, the fact that we are now able to identify and quantify an offender’s criminal risk factors represents a tremendous step forward in being able to effectively address issues necessary to rehabilitate an offender and reduce crime in our State.

In addition, the fact that all of the agencies and institutions in the Hawaii criminal justice system will now be using the LSI-R also should be very helpful for treatment providers in evaluating and developing their treatment programs to assist us in addressing the dynamic risk factors of these offenders to support and succeed in an offender’s rehabilitation. And, of course, it will also help us to evaluate whether a treatment provider is, in fact, providing responsive and effective treatment, as well as, now, helping to improve that treatment. In addition, this will be very important in insuring that we purchase, with taxpayer dollars, only cost effective treatment, which presently and in the past has not always been possible. [42]

Now that all of our institutions and agencies in Hawaii that interface with our criminal offenders are using the same assessment instrument, this means that we are on the “same page” together, and that we will be able to communicate and share information using the same terms of reference, as well as with our treatment providers, in addressing issues surrounding a criminal offender and his or her progress towards rehabilitation.[43]

Finally, as we build our experience with the LSI-R in Hawaii it is hoped that our assessments will become more and more accurate and reliable and that the treatment we refer our offenders to will be more and more sophisticated and effective. Perfecting this system will obviously take some time, but in the Author’s opinion we are definitely on the right track; and, in the long run it is reasonable to expect that this improvement (adoption of the LSI-R) alone will be a significant factor in helping to reduce recidivism of our criminal justice system offenders in Hawaii. It will allow us over time to be much more accurate and effective in matching the needs of an offender with appropriate treatment and in accurately evaluating the offender’s progress towards rehabilitation. An offender should get better results, get better, and our treatment providers will be guided in the direction of making their programs more effective. The work of ICIS, then, represents a very substantial improvement in the manner in which we in Hawaii address the rehabilitation of our criminal offenders. In the long run, we should now be able to make our criminal justice system much more effective in reducing harm in our communities of our State.

HOPE & SSU Probation Provide Some Help
Other interesting recent developments in our Hawaii criminal justice system have included the creation of HOPE probation (Hawaii’s Opportunity Probation with Enforcement) in First, Third and Fifth Circuit probation and the Special Services Unit (SSU) program in Second Circuit probation.

HOPE probation was created through the leadership of Judge Steven Alm in First Circuit in 2004. HOPE probation is a program in which high risk offenders who are currently on probation are selected to receive true, random, drug testing and swift sanctions by the judge for testing positive for illegal drug use or for failing to report to their probation officer.[44] If these offenders test positive for illegal drug use they are taken immediately into custody, and taken before the judge and sentenced to jail. If a HOPE probation offender fails to report for an appointment with his or her probation officer an arrest warrant is immediately issued, served forthwith and the offender is jailed until he or she comes before the judge, who will impose a jail sentence. The period of the jail sentence imposed is modest, but lengthens for repeated failures, in accordance with the sentencing philosophy of graduated sanctions.

HOPE probation has proven to be very effective in reducing positive illegal drug tests of participants and encouraging prompt appearances at probation officer appointments for persons who are serving a term of probation.

In Second Circuit our SSU probation program, which was established about the same time and was inspired by HOPE probation, does not provide for random drug testing, but we added required sessions of cognitive behavioral treatment as a condition of probation in order to, in addition, address the thinking errors of our offenders.[45] This approach represents a borrowing from our successful Maui Drug Court model, which heavily emphasizes cognitive treatment.

In our Second Circuit SSU probation program we admit only high risk offenders – defined as those offenders who score higher than 26 on the LSI-R, all drug offenders, and all sex offenders.[46] These offenders are provided with a higher level of supervision, including more drug tests, more meetings with their probation officers and, similar to HOPE probation, immediate sanctions by the judge if an offender should fail to follow through in performing the conditions of his or her probation order. Offenders are not immediately taken into custody and sentenced to jail; any sanction depends upon the circumstances, but the sanction will be swift and graduated. Our results, like those of HOPE probation, have shown substantial improvements in timeliness of offenders in meeting with their probation officers and also a substantial reduction in positive tests for illegal drug use by offenders.[47]

Both HOPE probation and our Second Circuit SSU probation program provide for negative sanctions; a sentence to jail. Studies in criminal justice show that positive reinforcement is much more effective in producing changes in offender behavior than is negative reinforcement. Experts recommend a ratio of 4:1 positive rewards/reinforcements to punishments/negative reinforcements.[48] Accordingly, it would be worth considering the manner in which positive reinforcements might be incorporated into these probation enhancement programs, as well as a strong component of cognitive behavioral treatment. Drug Court sanctions emphasize positive reinforcement to encourage changes in the thinking and behavior of the offender.[49]

In considering the effectiveness of these programs it seems clear that increasing the frequency of drug tests and meetings with probation officers, re-enforced with immediate sanctions by the judge for non-compliance, is effective during the period of probation in gaining greater compliance with probation conditions. However, the question remains whether this remediation will result in reduced offender recidivism post-probation. Certainly, at least in the short run, offenders can be expected to be more attentive while they are serving their term of probation, while immediately subject to the greater scrutiny of the judge. The problem, however, is, and has always been, what happens after offenders have finished their term of probation.[50] This is the reason we in Second Circuit included a cognitive behavioral treatment element in our Second Circuit SSU probation program; we have learned from our drug court experience that if we expect an offender to change his or her behavior (stop using drugs and committing crimes) we must teach him or her to change the manner in which they process information in their minds. A technique sometimes referred to by offenders as “using the CBT Map.” Change an offender’s thinking and he or she will change their behavior.[51] If negative reinforcement was effective in causing this change, offenders would not be re-offending after having served their sentences.

In the Author’s view, then, neither HOPE probation nor our Second Circuit SSU probation program will be likely to have much, if any effect on long term, post-probation recidivism of an offender; even if supported by increased drug testing, and visits to the probation officer, reinforced with negative enforcement and immediate sanctions. Because our Second Circuit SSU probation program includes a component of cognitive behavioral treatment, perhaps there may be some, modest reduction in recidivism, based on our drug court experience with this type of treatment. However, at least for now, there is no valid data to suggest that these probation enhancement programs will result in reduced recidivism post-probation.[52]

In passing, it can be noted here that the Author is informed that the Attorney General of Hawaii is currently compiling post-probation recidivism data for both HOPE probation and our Second Circuit SSU probation program and expects to announce results during in 2012. The post-probation data will not cover a lengthy period time, because the programs are still new, but nevertheless it will be interesting to see this data. Substantially reduced recidivism at five years post-probation would be significant. However, in contrast, our Maui Drug Court has demonstrated consistent post-graduation recidivism rates of less than 16% (success rate of over 84%) for over a decade. Furthermore, had an offender who is in either HOPE probation or our Second Circuit SSU probation program instead have graduated from our Maui Drug Court he or she could have been released from probation after only one year, with resultant savings.

Finally, while HOPE probation and our Second Circuit SSU probation program have made important contributions in improving how we address the rehabilitation of offenders in our Hawaii criminal justice system, it is important to remember that this is an evolutionary process. In order to achieve the reductions in recidivism and crime we as a State can and must reach, and ICIS was founded to encourage and assist in developing (recall the ICIS aspirational goal of 30% reduction in recidivism), our future criminal justice system programs it seems our programs must emphasize a strong cognitive behavioral treatment component, strong, positive reinforcement methods and direct judge intervention and leadership.[53]

Meth Offenders Are per se “High-Risk”
Quite naturally, and perhaps because of the intensity, seriousness and sadness of the wide-spread prevalence of Meth addiction and abuse here in Hawaii, it is easy for us to jump to the conclusion that other jurisdictions in the US are plagued by the same Meth epidemic as we; but this is not true. It is important for us to make this distinction because approaches found useful by other courts to address the rehabilitation of drug addicted criminal offenders which may appear useful or appropriate in another jurisdiction that is experiencing the proliferation of a different mix or type of drug problem, will probably not be relevant or helpful to us here in Hawaii. The particular drug of choice here in Hawaii is quite clearly and by far, Meth. In some jurisdictions the problem drug may be heroin, while in others it is crack-cocaine; and, of course, the mix of drugs may change over time. It is very well documented, however, that it is Meth that is the illegal drug that dominates the criminal justice system in Hawaii, and it has for the past decade or two. The reason for this predominance of Meth as the drug of choice in Hawaii, other than its intense addictiveness, is not known. Some postulate it is our proximity to Asia or the apparent ease with which Meth can be imported from Mexico that has caused the proliferation of Meth in Hawaii, but no one really seems to know.

The reason the Author emphasizes the primacy of Meth as the drug of choice for our offenders here in Hawaii at this point in this Report is to take a moment in order to specifically address, analyze and take issue with a proposition asserted in a recent NADCP publication called “Painting the Current Picture: A National Report on Drug Courts and Other Problem Solving Court Programs in the US.” The Author believes that assertions made in this publication about the appropriateness of drug court treatment for so-called “low-risk” offenders may result in confusion and in misleading the reader into believing that it is not necessary or appropriate to offer drug court treatment for these Meth offenders in Hawaii. The article, on p.17 of the NADCP publication, urges jurisdictions to consider directing offenders into what it identifies as a “coerced-abstinence” program to manage an offender population that it rather vaguely identifies as “other non-addicted and/or low-risk substance-involved offenders,” of which it suggests there are “many.” The report goes on to claim that these so-called “low-risk substance-involved offenders” are not appropriate for treatment in a drug court, but rather are more appropriate for supervision in a program such as the HOPE probation program in First Circuit Court, Hawaii, which is similar in operation and design to our Second Circuit SSU probation program.[54]

First of all, assuming that it is the intent of the NADCP publication to include offenders in our criminal justice system charged with a felony crime who have a Meth problem, though this is not entirely clear, the Author believes that, on the contrary, it is of great importance that such an offender have an opportunity to receive treatment in Tracks I or II of drug court. If they were to be forced to participate in HOPE probation they would have to first suffer a conviction on their charges and then they would be sentenced to a 5 year term of probation.[55] This would foreclose them from the opportunity to maintain a clean or minor criminal record for the sake of first forcing them into a punitive probation regime, which would be, in the Author’s opinion, unnecessary and unconscionable. These are mostly young offenders without significant criminal records. On the other hand if they were offered the opportunity for drug court they would maintain a clean criminal record upon graduation as the charges would be dismissed. Secondly, both HOPE probation and our SSU probation program were created about the same time and have since their inception been utilized to provide enhanced supervision through primarily increased, random drug testing and graduated sanctions (in the form of an immediate sentence to jail) to address drug use and probation failures of “high-risk,” not so-called “low-risk” offenders.[56]

To the extent that it is the intent of the NADCP publication to recommend the exclusion of offenders from treatment in drug courts who do not have an illegal drug problem or who are “non-addicted” to illegal drugs; it seems few would quarrel with such a proposition. Especially given the fact that it is the purpose of drug courts is to treat drug-addicted offenders or persons for whom their illegal drug use has become a problem. Or, to put it another way, drug courts are intended for the treatment of persons who use illegal drugs and for whom drug use is causing problems in their life and in our society; for example, getting arrested and charged with a felony crime. The Author recalls here the traditional adage that one needs to consider whether one has developed a problem with alcohol when one finds that his or her use of that beverage has begun to interfere with their life, for instance by causing them to miss work, getting a drunk driving ticket or failing to follow through with family or social commitments. If that is the intent of this statement in the article, then, the suggestion that drug court would not be an appropriate use of resources for people for whom their illegal drug use has not caused such problems; would not seem objectionable. This would, however, hardly be a useful distinction, since these people would presumably be highly unlikely to have committed a serious drug related crime or be found to be in the criminal justice system in the first place.

However, it seems that it is the intent of the article to recommend that “low-risk” yet, nevertheless, “substance-involved,” offenders be excluded from drug court participation and treatment. The challenge, then, would be to understand what is intended by the phrase “substance-involved” as it relates to a “low-risk” drug offender. Perhaps this could include a person who possessed an illegal drug, but does not “use” it? Or, perhaps it would include a person who helped another person to obtain an illegal drug, but does not, themselves, use or intend to use the drug? Something less than “addicted” seems to be intended (though not necessarily), cobbled together with possession or intent to possess the drug? Mere presence at the scene of illegal drug use could perhaps qualify as “substance-involved,” but “low-risk” if it occurred more than once? On the other hand, a person who is seriously addicted to an illegal drug, convicted and sentenced to a term in prison is certainly “drug-involved” within any ordinary understanding of the phrase. These examples just illustrate the problems created where one simply attempts to employ vague and, it is submitted, unhelpful catch-phrases to create dichotomies of drug offenders; perhaps in order to justify someone’s preferred approach for offender rehabilitation, it is unclear.

The bottom line here seems to be a desire to treat illegal drug using offenders differently based upon a perception that some are worse or present more challenges to rehabilitation than others; and, therefore that their rehabilitation may be effectively addressed separately, or differently. If this is the intention of the article in the NADCP publication, then it would require us to accept that a dichotomy of low-risk and high-risk illegal drug using offenders can be justified for purposes of treatment. The concept, then, would be to separate out so called “high-risk” illegal “drug-involved” offenders for treatment in drug court and the others would be placed in HOPE probation (or our SSU program, or the like) and then, for those placed in HOPE, who are “discovered” thereafter to in fact have an illegal drug problem, to send them to the kind of drug treatment program that we have been sending our “drug-involved” offenders on probation to since these programs began. Recall here that the recidivism rate for all Hawaii offenders, including those we have been sending to these drug treatment programs, has been, until drug courts opened, more than 50%.

The report does not suggest the method one would employ to determine so called “low-risk” from “high-risk” drug offenders. However, before one reaches that point, the idea that there in fact exists such a dichotomy among Meth using offenders who have come into the Hawaii criminal justice system, is highly suspect on its face.

The Author submits that whatever a “high-risk” offender may be regarded to be elsewhere, a Meth addicted offender who has got himself or herself into the Hawaii criminal justice system certainly qualifies as “high-risk” by any reasonable standard, especially when one considers that probably something like 95% of all offenders in the Hawaii criminal justice system are “substance-involved” with Meth; and, that the recidivism rate has for years exceeded over 50% for these, same offenders. Any Meth “substance-involved” offenders being supervised in a HOPE probation or SSU type probation program will be unlikely to experience reduced recidivism, except during the specific period that they are serving their term of probation, and under the judge’s tight supervision.

If an offender has so lost control over his or her life that they have come into the criminal justice system because of their Meth use; he or she, by definition, qualifies as a serious or “high-risk” substance involved offender and would benefit from drug court treatment. By example, in our Maui SSU probation program, in Second Circuit, we recognized this fact and define “high-risk” for purposes of participation in the program as an offender who has scored 26 or greater on the LSI-R, is a drug (Meth) offender, or a sex offender. Any Meth addicted offenders that are placed in our SSU Second Circuit probation program are there, and not in our Maui Drug Court, for reasons unrelated to their drug addiction. Any other conclusion simply ignores the reality of the effect of Meth upon our offenders in Hawaii, its harm to our communities and the successes of our Maui Drug Court treatment program.

In describing our drug involved offenders in the Hawaii criminal justice system most judges or law enforcement persons will likely state that 95% of offenders are there because of their involvement with Meth, not marijuana (although a powerful gateway drug) or cocaine, heroin or other illegal drugs. The fact that our problem drug in Hawaii is Meth is a no doubt a primary reason our recidivism rate being so high in the first place, and the fact that it has proven so difficult to reduce for the past decade.

The fact that criminal Meth use is; by definition, “high risk” is also strongly supported anecdotally by offender responses in our Maui Drug Court “trigger” letters mentioned elsewhere in this Report – more than 800 of them so far describing the drug use (almost 100% Meth) that brought them into the Hawaii criminal justice system and the compulsive, lawless life that offenders plunge themselves into when they began their Meth addicted life. These letters all relate the same essential story: the offender was more or less managing his or her life, holding down a job or going to school and caring for family, until they used Meth. From that day, that very first use, their lives became very soon completely dysfunctional and desperately out of control. It was a straight line continuum that lead directly to more and more Meth use and criminality. They could not stop using Meth until they landed in our criminal justice system. Many of these offenders in fact say that they felt great relief when they were finally arrested and that they felt “saved” from their Meth abusing, self-destructive behavior. They were very grateful to have the opportunity to participate in our Maui Drug Court treatment program. They all tell essentially the same story; it is the common denominator; common characteristic, of Meth addiction in Maui and in Hawaii.

Based upon the Author’s more than 24 years experience as a criminal trial judge in Hawaii courts, the Author can state with confidence that these Meth addicted offenders almost always come before the court as a result of their overt, dysfunctional behavior; having come to the attention of the police by such acts aas driving in the wrong lane of traffic, by bizarre behavior or by having failed at attempts to commit a crime, and the like. That is, because of the dysfunctional symptoms of their addiction; their dysfunctional behavior alone, not as a result of police or FBI investigations, though these do of course help as well. These offenders are not Bernie Madoff! They were simply highly intoxicated, out of control of themselves and breaking the law; and, a policeman was present to arrest them in order to protect the public.

Programs such as HOPE probation and our Second Circuit SSU probation program may play a role in keeping some offenders from using illegal drugs while they are on probation. For example, these programs can provide supervision for offenders who refuse treatment, have mental problems, or who do not wish to change for some reason. Those offenders can be kept under high levels of court supervision, and crime free, during the time they serve out their 5 year term of probation. However, we should not expect these offenders to change their behavior once they are no longer under the thumb of the judge. Our existing criminal justice data predicts that more than 50% of them will not change and that they will commit another crime. Changes in offender thinking and offender behavior necessary to reduce recidivism require a great deal more than negative sanctions (brief, progressively longer jail sentences) for “dirty” drug tests for 5 years. The fact that recidivism in Hawaii has been in excess of 50%, except for drug court graduates, for all of these past years, if nothing else, substantiates this unfortunate fact quite clearly. Finally, for those offenders who eventually graduate from our Maui Drug Court, they may have finished their term of probation and treatment, and be discharged from further probation supervision, after only one year, compared with the ordinary probation period of 5 years. Although experience suggests that an offender may take more like 2 years to complete treatment and probation, it has never taken the full 5 years for any offender; and, then, these offenders are free to resume their lives with their families and loved ones, with more than an 84% expectation (for them and for our community) of never committing another serious crime in our community! The Author submits that this is a much superior result for the offender and for the people of our State than can be achieved for a drug offender than by HOPE probation or our Second Circuit SSU probation program and is another reason we should move to expand the use of drug court treatment modalities across the board in our Hawaii criminal justice system.

Some may argue that HOPE probation or our Second Circuit SSU probation program offenders can simply be referred to treatment for their drug problems should problems be encountered, and because they are “low-risk” drug offenders, thus do not need drug court treatment in order to stop their drug use. However, as mentioned elsewhere in this Report, even if we could somehow imagine a Meth offender to be a “low-risk” offender there is no data to suggest that the kind of drug treatment to which the Judiciary could and has been sending offenders from probation for the past decades actually cures drug addiction or reduces recidivism. At the same time the recidivism rate in Hawaii has stayed in excess of 50%. The data is depressingly clear. Changing our approach to managing and treating our Meth offenders by bringing to bear the successful elements of our Drug Court model in our criminal justice system is the only option that makes good sense, is based upon solid data and the best evidence of success.

The Maui/Molokai Drug Court: The Riddle Of Recidivism Solved
The basic concept for the drug court provides for direct and significant oversight and leadership over the drug treatment of drug addicted offenders by the judge, for an extended, lengthy period of time.[57]

The drug court movement in the US, of which the Maui Drug Court is the second Hawaii iteration, is now over 20 years old. The model for drug courts in the US is credited to former US Attorney General Janet Reno and Judge Herbert Klein. They worked together to design the essential structure of the drug court treatment model, to address a growing drug problem they were facing in Miami, Florida.

Since this modest beginning in Florida in 1989 with the opening of the first drug court the drug court movement has rapidly expanded across the US. As of the end of 2009 there were 2,459 drug courts in the US. During the last 20 years, drug courts have demonstrated a remarkable ability to rehabilitate and redeem the lives of a very high proportion of offenders and drug courts have the highest, proven success rate of any treatment program in criminal justice.[58]

In a nationally representative study of more than 2,000 graduates from over 90 drug courts, the average recidivism rate for offenders was only 16 % in the first year after leaving the program, and 27% after the second year. This is far superior to the recidivism rates on conventional probation, in which 46%, nationally, commit new offenses and over 60% commit a probation violation.[59]

The Maui Drug Court is a long term drug treatment program that combines intensive, judge led, supervision and treatment of non-violent criminal offenders, based upon a cognitive behavioral treatment model, who are addicted to illegal drugs. The treatment is delivered over an extended period of time, at least 12 months. Our Maui Drug Court is available to anyone in Second Circuit (Maui County) and provides treatment through staff located on both the islands of Maui and Molokai.

In Hawaii there are now both adult and family/juvenile drug courts operating in every Circuit. Operation of our Maui Drug Court began during the summer of 2000.

Offenders are required to appear before the Maui Drug Court judge, in court for regular reviews of the offender’s progress, by the judge in open court and in the presence of the other Drug Court offenders. The offender receives encouragement from the judge and the Maui Drug Court staff and his or her treatment is designed specifically for criminal offenders, to assist them to identify and change their criminal thinking.

Every person that is redeemed from drug addiction and the criminal justice system, through successful participation in our Maui Drug Court program, can again become a contributing, not to mention tax paying-child caring and nurturing, member of our community. This redemption of our people, our fellow citizens represents the preservation of an enormous community treasure and a positive contribution to the long term welfare of our community.

Drug Court Results: Success at Last In Reducing Recidivism!
First, and most importantly, our Maui Drug Court program in Second Circuit actually works to reduce recidivism and criminality! Our Drug Court has proved to be very successful in reducing recidivism and addiction of our offenders to illegal drugs. We have kept performance data to guide and inform our operations all along, but recently our Second Circuit Court Program Specialist staff reviewed the conviction record of every single one of our 386 Maui Drug Court graduates, from inception of the program to the present (2011). Our staff determined that the success rate for the entire duration of our Maui Drug Court program (over 11 years) and for all graduates is a little over 84% (recidivism rate of less than 16%); meaning that 84% of our graduates have never been convicted of another felony crime! Consider what an enormous benefit this is for our community![60]

Our Maui Drug Court measures recidivism by whether or not an offender has commited another felony crime. We track felony crimes, as opposed to other possible events that could be used, because we believe felonies are the best measure of whether the results of our Maui Drug Court program have actually prevented or reduced harm in our community. It is quite simple to derive and compute this information from the extant criminal database used by the judiciary in its day to day operations. Felony crime represents conduct that comprises the more serious crimes, including the possession and/or sale of Meth. Misdemeanors are the other class of crimes and they represent minor offenses that are not the source of serious harm, such as driving without a license or minor shoplifting offenses. Meth possession and addiction, on the other hand, we know will very quickly lead to serious, felonious misconduct, with a high risk of real harm to the person and property of our citizens.

As set forth in this Report, in comparison to our Maui Drug Court program, the recidivism rate for offenders on probation and parole in Hawaii has historically been over 50%, according to data complied by the Attorney General of Hawaii.[61] Nationally, only 36% of the offenders entering out-patient drug treatment programs have successfully completed treatment.[62] In our Maui Drug Court 66% of our offenders graduate and the national average is about 70% for successful drug court program completion.[63] The average period of time an offender participates in our drug court before graduation is about 2 years.

If the offender was on probation when he or she entered our Maui Drug Court, based upon successful completion of the Maui Drug Court program their probation is terminated early by the judge, saving the State of Hawaii the cost of 2-3 additional years of supervision. Out-patient treatment in the Maui Drug Court costs about 1/5 the cost of incarceration in prison.[64] The cost of one year of incarceration in prison in Hawaii is about $30,000 per year.[65]

This data proves that without question, our Maui Drug Court is successful in stopping criminal drug addiction, its associated criminal harm and the unnecessary expense, loss and trauma caused to our community.

Now that we have a proven, successful program, our goal is to increase the size of our Maui Drug Court program to serve as many of our drug addicted offenders in our jurisdiction as possible, while we continue to refine and improve our treatment program. The proven success of our Maui Drug Court can and should inform and guide the improvement of criminal drug treatment for the rest of the criminal justice system in Hawaii.

Drug Courts Are Treatment, Not Supervision And Must Be Independent Of Probation
One of the first decisions we faced in establishing our Maui Drug Court was whether our program should be a part of the adult probation department (Adult Client Services) as is the drug court program the First Circuit.[66] We recognized that a drug court is something different than community supervision alone (traditional probation); it is a treatment modality in and of itself. Supervision alone and drug treatment are very different functions requiring very different skill sets, supervision and leadership. Probation officers are not ordinarily trained to provide drug treatment.

We, therefore, decided that establishing our Maui Drug Court as a separate entity within Second Circuit with its own Drug Court Administrator and its own budget would provide an operating structure most appropriate to serve our Maui community. Our Maui Drug Court, then, operates as independent of, but complementary with probation.

This structure and the procedures we established for the Maui Drug Court have worked quite well for the past 11 years and produced excellent results in reducing recidivism.[67]

The Basics: 10 “Key Components” of Drug Courts
The Bureau of Justice Assistance, US Department of Justice, has identified “10 Key Components” of drug courts.[68] These 10 Key Components are also recommended by the NADCP and represent the national model for drug courts. It is the structure of this model that has enabled these courts to be so successful. We incorporated all 10 of these key components into the structure of our Maui Drug Court. This national model recognizes that each drug court will of necessity differ somewhat from others, in order to meet the needs and aspirations of each particular, individual community. However, the purpose of providing for 10 Key Components as the essential structure for drug courts is to help to ensure and protect drug courts against and avoid guess work and ad hock treatment structures which may look or “feel good” or “seem correct,” but which are not actually based upon components or treatments that have been empirically proven to be effective.

Drug courts are new. Sometimes well meaning, but traditionally minded bureaucrats and others tend to suspect proposals that are new; therefore, the establishment and recommendation of the 10 Key components have protected new drug courts from being subjected to well intended meddling by authorities that may wish that a drug court conform to their vision of more traditional configurations. Effective drug courts are based upon a structure of intensive judge supervised treatment using proven, best practices and evidence based practices that employ therapeutic graduated rewards and sanctions, proven cognitive behavioral treatment and intensive case management for an extended period of time, usually at least 12 months.


More Basics: Four Phases of Treatment
The offender treatment protocol in the Maui Drug Court is divided into four phases, each with a different content and level of intensity.[69] The level of supervision of the participants gradually decreases over time in order to encourage offenders to practice and apply the “tools” and knowledge they have gained while still providing them with adequate support and guidance.

In order to be effective, treatment programs must be centered upon causing changes to a person’s thinking patterns and ability to rationally asses and consider the consequences of their behaviors. Offenders must learn to identify criminal thinking and thinking errors that are well recognized to lead to or rationalize criminal behavior. In our Maui Drug Court treatment program we achieve this by identifying for our offenders their thinking errors and we then show our offenders how their thinking errors have led to their criminal/addictive behavior and negative consequences. Then, we show and train them how to avoid those and similar thinking errors in the future. If we can change an offender’s thinking, we can change his or her behaviors. This treatment requires a great deal of practice, roll playing, repetition, evaluation, counseling, and other activities until an offender reaches a point when their behavior in response to a given stimulus has changed from a negative to a positive response.[70] Of course we also provide group and individual counseling, problem solving and medical/psychological treatment, and support to address additional issues in an offender’s past that contribute to their faulty thinking and criminal behavior, such as childhood trauma or abuse.

Offenders are specially recognized, praised, rewarded and publicly congratulated in open court in front of their peers when they complete one phase of treatment and transition to the next phase or achieve any significant goal of their rehabilitation. The treatment in each phase is challenging and demanding, requiring focused, concentrated effort to complete. An offender gains a justified sense of accomplishment when completing each phase of treatment. During the phases of treatment the offender is expected to be capable of remaining clean and sober by utilizing what he or she has learned. Once an offender enters phase IV of our Drug Court program treatment is essentially complete and supervision is relaxed, but supportive. Phase IV is designed to be transitional into normal, unsupervised life in the community and was incorporated into our Maui Drug Court program in order help offenders avoid the shock of suddenly being left without the support that they have become accustomed to having during the lengthy treatment period of our Maui Drug Court program.

AA/NA, Rewards and Punishments & Graduated Sanctions
As an essential component of treatment, we encourage each offender in our Maui Drug Court to engage with and become a part of the Maui “Recovery Community.” Our offenders are encouraged to join together with all of the other people in our Maui community who regularly help themselves and others by attending AA or NA and ALANON meetings, obtain a sponsor and “work the 12 steps.” Some may think that referrals to AA/NA programs ignores more modern or sophisticated treatment methods, but based upon our experience those graduates who continue to stay “clean and sober” after they graduate from our Maui Drug Court program are much more likely to achieve long term abstinence and sobriety if they engage with and continue to remain a part of our Maui Recovery Community, and benefit from its mutual support. Our Maui Drug court emphasizes to each of our offenders that he or she will always be in recovery and is never going to be “cured.” And, that, therefore, continuing, life long support is very import for them in order to achieve long term sobriety. Offenders must learn to accept the necessity to remain vigilant about and dedicated to their recovery. Being a part of and surrounded by the Maui recovery community is an excellent way in which to provide an offender “insurance” against the challenges they will continue to face after they graduate from our Maui Drug Court. Therefore, we strongly encourage our offenders to participation in the 12 Step and Recovery Community, both during treatment in our Maui Drug Court; and, after they graduate, in order to assist them in remaining strong in their recovery. In fact, the Author believes that the more we support and direct our graduates to become contributing members of our Maui Recovery Community, the better place our community will become. Having a large proportion of our community actively participating in and adhering to the remarkable self-help, 12 Step principles certainly represents a good influence on our Maui community as a whole.[71]

An essential component of the successful Drug Court treatment model is a system of rewards/encouragements and punishments/discouragements and a program of graduated sanctions to be applied by the Drug Court judge to help affect and reinforce change in a offender’s thinking and behaviors. For example, a person might be given a gift certificate redeemable at a market or a movie theater ticket in order to recognize their advancement to the next phase of treatment or for completing his or her assigned community service hours ahead of the due date. On the other hand, he or she might be ordered by the Drug Court judge to spend a weekend in jail working on a writing assignment designed to cause him or her to think about and re-evaluate the cause and effect and consequences of an act of negative behavior, such as driving without a license, missing a counseling appointment or failing to perform community service hours on time. A second transgression will result in an increased or “graduated” sanction of enhanced severity or increased duration, depending upon the circumstances. Studies show that positive reinforcement of behavior is more effective than negative reinforcement and our Drug Court is guided by this principle.[72] A ratio of 4:1 of positive to negative reinforcement, reward and sanction is believed to be the most effective to encourage compliance and change.

Maui Drug Court Potential: 125-200 Clients/Tracks I-V & Philosophy Of “Inclusiveness”
Currently, our Maui Drug treats about 125 offenders. In addition, usually there are over 70 offenders on our wait-list for admission. There have been offenders on our wait list, waiting to participate in our Maui Drug Court, since its inception.[73] Because of our limited resources and the current financial crisis, the demand for Maui Drug Court treatment far exceeds our ability to provide treatment services to all of the offenders who apply or who need treatment in our Maui Drug Court. Nor at present can our Maui Drug Court provide training for our staff we know that we need in order to sustain their expertise and motivation at the level that is desirable. For the time being it is the high morale and dedication to the mission of our Maui Drug Court that sustains our staff. If we could obtain more funding, the Author believes we could treat at least 200 offenders on an ongoing basis in our Maui Drug Court for the foreseeable future.

The philosophy of our Maui Drug Court program is to treat as many drug addicted criminal offenders as possible. So long as an offender has a drug problem and demonstrates a desire to change his or her life, the Maui Drug Court will find a way to include them and provide them with the treatment they need and seek. Our Maui Drug Court, makes no distinction between any so-called “high-risk” or “low-risk” drug offenders. In our view, as mentioned previously, all drug offenders are “high-risk” for continued Meth use and harm to our community. Accordingly, in order to provide effective drug treatment for as many drug addicted offenders as possible, in the best interest of our community, we have structured our Maui Drug Court to provide for five “Tracks” by which an offender may participate.[74] “Track” describes the point in the cycle of the criminal justice system at which an offender may enter the Maui Drug Court. For instance, a Track II offender will have been charged with a crime, but not convicted; whereas, a Track IV participant will have been convicted, sentenced to prison and paroled; and, will currently be facing the revocation of his or her parole before the Parole Board, usually for a drug related crime or for drug use. By providing for five “Tracks” by which to enter into our program, our Maui Drug Court is more inclusive than any other drug court program. Our Maui Drug Court is able to offer treatment to offenders with the most severe addiction challenges, virtually without any limitation based upon where an offender happens to be in the cycle of the criminal justice system. This approach allows the Maui Drug Court to be very flexible in meeting the needs and providing treatment for our offender population. Most drug courts, including those in Hawaii, offer only Tracks I, II and/or III, and philosophies of inclusiveness vary among drug courts. The Maui Drug Court is designed to provide for maximum inclusiveness; again, in accordance with the recognition that any Meth addicted offender in our criminal justice system is a “high-risk” source of potential harm for our community and must be treated if at all possible.

Our philosophy is, then, very simple: Our Maui Drug Court is proven to work and has provided a tremendous benefit to the people of our community; therefore, we must strive to treat as many Maui offenders as possible. Accordingly, all a qualified offender needs in order to participate in our Maui Drug Court is to be charged with a drug related felony, be non-violent and possess a strong desire to change their criminal and addictive thinking and life-style, and we will find a Track by which an offender may participate. This philosophy also pragmatically recognizes our existential understanding of the critical need to provide treatment for our Maui offenders; they will not go away and will harm our community if they are left untreated.

Because our Maui Drug Court offers 5 Tracks of entry offenders will often be participating in our Maui Drug Court on more than one Track at the same time. This can occur when an offender has several cases which are at different stages in the criminal justice system. For example, an offender may be serving a term of probation, but at the same time facing the possibility of having his or her probation term revoked by the court because he or she has committed a new crime for which they have not yet been convicted. This offender could enter the Maui Drug Court as a Track II (the new case) and a Track III (the probation case) participant. If the Maui Drug Court offered only track III participation, such an offender would not qualify for participation. The significantly enhanced flexibility of the Maui Drug Court program is apparent.

Which Track an offender enters the Maui Drug Court through will, in turn, dictate the disposition of his or her case upon their successful graduation. Therefore, for Track I or II offenders, since they have not been convicted of their criminal charges, their charges will be dismissed by the Court and these charges will never be included in their criminal record as a conviction.[75]

The “post plea/probation” offenders in our Maui Drug Court program would be our Track III or later Track offenders, who have already been convicted and sentenced. A potential Track III participant will be an offender who has previously been sentenced to serve a 5 year term of probation. Upon acceptance into our Maui Drug Court program this potential Track III participant will then be re-sentenced to a new, 5 year term of probation, subject to his or her original conditions of probation. Added to this offender’s re-sentencing conditions of probation will be a new, additional condition requiring that the offender must also successfully complete our Maui Drug Court treatment program. Although Track III offenders are probationers and have already been convicted of their crimes; upon their successful graduation the court will terminate their five year term of probation early, thus saving them and the State up to 4 years of additional supervision.

Track IV offenders have, likewise been convicted and sentenced and are on parole; therefore, upon their successful graduation the Drug Court judge will inform the Parole Board that the participant has successfully completed the Maui Drug Court program. Such an offender will usually have been pending his or her parole possibly being revoked by the Parole Board and subject to being sent back to prison to finish the remainder of their original prison sentence. Therefore, successful graduation from the Maui Drug Court will be very helpful to such an offender in convincing the Parole Board to continue them on parole, in our community, based upon their successful graduation. Usually, this is the result.

Finally, a Track V participant who is reaching the point where he or she will be released from prison who successfully graduates may qualify early for favorable disposition by the Parole Board of their application to be placed on parole, and may thus be released from prison early based upon their successful graduation from the Maui Drug Court. These favorable consequences for the offender as a result of their successful graduation from the Drug Court are an added and powerful incentive to motivate them to be successful.[76]

Unique basics: Treatment Dorms In MCCC For Men And Women
Typically, treatment in drug courts is limited to “non-violent” offenders and treatment is provided on an out-patient basis only.[77] However, we recognized during our initial planning for our Maui Drug Court that while technically non-violent, many offenders are nevertheless so badly addicted to illegal drugs and so out of control of their lives and behavior that they are virtually unmanageable in an out-patient treatment setting. If our Maui Drug Court provided only for out-patient treatment, these offenders would likely, because of the severity of their addiction and their potential for harm, be sentenced to prison. However, it is precisely these offenders who have the potential to cause the most harm in our community that are, therefore, the most in need of treatment. Recognizing this dilemma, we believed that it was essential to extend our Maui Drug court treatment program to include these highly challenged offenders. In order to accomplish this we arranged to create our Dorm III and Dorm V residential treatment Dorms at our local jail (the Maui Community Correctional Center – “MCCC”) which we operate through a contracted treatment provider under a memorandum of agreement with PSD.

These Dorms essentially provide for residential treatment. Having our Maui Drug Court residential treatment Dorms at MCCC that are exclusively dedicated to treating Maui Drug Court offenders allows us to treat these more challenged offenders in a setting separate from the MCCC general jail population. This treatment is usually for a minimum of 60 days before an offender transfers to our out-patient program with supervision in the community. Because of the ongoing challenge of arranging for appropriate clean and sober housing to which an offender may move after his or her treatment in our Dorms, offenders often remain in our treatment Dorms for periods in excess of the 60 day minimum period. While they are waiting for their housing arrangements to be made, these offenders will continue to receive and work on their treatment pending their transition to approved housing. Supervision and treatment of offenders as out-patients in the community is much less costly than residential or in-custody treatment. This is a common occurrence.

With the support and cooperation of PSD, we are able to treat up to 24 men (Dorm III) and 12 women (Dorm V) in our Maui Drug Court residential treatment Dorms at MCCC. We also use these Dorms to place offenders back into custody for a period of refresher treatment if they falter in treatment, at any time, after they have completed their initial 60 days of treatment. And, we also place offenders in our treatment Dorms who may have started the program in an out-patient status, but who have faltered in their treatment and require the increased intensity of Dorm treatment for a discrete period of time.

Therefore, our treatment Dorms have allowed us to offer more effective treatment to more people, who are most in the need of treatment. This would not be possible if our program was limited to out-patient only treatment. In fact, we are able to offer treatment to almost any offender who is appropriate for probation and, later, to those who qualify for Tracks IV and V.

The Maui Drug Court is the only drug court program in Hawaii that offers Dorm based residential treatment for incarcerated offenders. Our residential treatment Dorms are an essential reason for the remarkable success of our Maui Drug Court and reflect the flexibility of our program to treat offenders who would not ordinarily qualify for treatment in programs that do not offer in-custody residential dorm treatment. Remarkably, more than 80% of offenders entering the Maui Drug Court treatment program begin their treatment in our residential treatment Dorms! And, most of our Maui Drug Court offenders who begin treatment as out-patients, and not in our Dorms, eventually spend some time in our treatment Dorms to serve a sanction or to get their treatment back on tract after faltering. Our Maui Drug Court treatment Dorms have proven to be a remarkably successful component and enhancement to our program. Our treatment Dorms also represent an excellent example of the kind of creative and successful inter-agency collaboration in the Hawaii criminal justice system and the spirit of mutual cooperation with which ICIS was founded to encourage. The Author believes that all drug courts could benefit from including a dorm treatment component in their programs.

Sometimes drug courts have been criticized for so-called “cherry-picking” by selecting for treatment only those offenders who are “low-risk” or otherwise “easy” to treat. That is, for selecting only the less serious or “low-risk” offenders for inclusion and treatment. Even assuming such a dichotomy of existing drug offenders, the reader can see that this is clearly not the case in our Maui Drug Court; in fact, the emphasis is to encourage every drug addicted offender to apply for treatment in our program. If our drug courts cannot treat all drug addicted offenders (excluding those who require prison for our safety) then they are of little use. As mentioned previously in this Report anyone addicted to Meth in the Hawaii criminal justice system is a “serious” offender. At least for the Maui Drug Court “cherry-picking” is simply not an issue, which will be apparent to anyone who reads this Report or studies our Maui Drug Court, or drug courts in general.

There are two additional considerations about our Maui Drug Court treatment dorms that the reader should know about. First, drug courts that provide drug treatment for inmate drug offenders as a component of their pre-release programming from jail are referred to nationally as “re-entry” programs/courts. We learned of these types of programs/courts during our initial planning through NADCP literature.[78] There are very few re-entry programs/courts nationally, but they are growing in number because of the obvious benefit of providing effective drug treatment to inmates prior to their release into the community. Our appreciation of this concept has guided our philosophy in creating our five Track program, and the inclusion of our Dorm based treatment opportunities in our Maui Drug Court. In fact, our Tracks IV and V qualify as “re-entry” court Tracks. Second, our Dorm treatment program provides us with a therapeutic place in which to stabilize participants who suffer from mental illness, after which they can transition to treatment as out-patient offenders. In the Maui Drug Court we try to be as inclusive as possible, in order to treat as many offenders as possible.

More Women Drug Offenders
More women are coming into our criminal justice system because of Meth addiction, with obvious and serious negative consequences for the children of our community.[79] According to the 2008 Annual Report of the Hawaii Department of Public Safety about 13% of the total prison population in Hawaii was women. Currently, women offenders represent 25% (31/125) of our Maui Drug Court population.

Illegal drugs have changed the gender mix of our criminal justice system, presenting new issues which must be addressed. Women offenders present unique and specific issues for treatment and require additional support issues relating to child care, abuse, exploitation and other issues that do not exist for male offenders

Our Maui Drug Court has worked to address the special needs of women offenders, at least to begin to, and at least to some extent, by establishing our Dorm V treatment dorm at MCCC, for women which provides gender specific treatment and is devoted exclusively to treating women offenders in custody. Dorm V houses up to 12 women offenders, separated from the general population of offenders. Women offenders, who would otherwise be sent to prison because of their likelihood of re-offending or prior criminal records, may have an opportunity to enter our Maui Drug Court because of our ability to treat them initially in our Dorm V. In Dorm V we provide women offenders with support and treatment until they have received enough treatment for us to trust that they will not re-offend or be victimized when they are released from custody, in order for them to continue their treatment as out-patients. As a result we can keep, and treat, these women offenders here in Maui, where their children and other family members are located and support them, with parenting classes, child care planning, and other resources, in order that they may be reunited with their children and care for them while they continue their Drug Court treatment and get their lives back on track. Child Protective Services is more likely to reunite children with mothers who are successfully participating in or have graduated from our Maui Drug Court. This is certainly a better result for their children! None of this would be possible if our women offenders were sentenced to prison and then transported off to the mainland prisons in which we house offenders because of prison overcrowding in Hawaii. Therefore, while women offenders present challenges we are able to successfully provide them with at least some of the unique treatment they need.

Finally, almost all of these women offenders have children, often from different partners. What will the consequences be upon the future of these children because of this instability and exposure to illegal drugs and the dysfunctional lifestyle of their parents? Who is parenting these children?


Too Many Hawaiians in Our Criminal Justice System
Offenders who report being of Hawaiian ancestry are greatly over-represented in our criminal justice population because of their addiction to Meth.[80] The 2008 Annual Report of the Hawaii Department of Public Safety shows that 39% of the inmates in Hawaii prison report being of Hawaiian descent. Unless something significant is done soon the Author does not expect this to change. This population group will probably be increasing its presence in our criminal justice system. Literally, as it now stands, the future of a generation of our young people of Hawaiian ancestry is doomed by this insidious and dangerous drug and its associated criminality. At the very least we are losing the enormous potential and positive contribution that these young people could be making to our society, to their families and to their Culture.

Abused Offenders Get Extra Treatment
Not surprisingly, many offenders in our Hawaii criminal justice system are victims of childhood, as well as adult psychological, physical and sexual abuse (unfortunately, far more often than not the Author has discovered) and neglect. Some of our offenders’ stories as related in their “trigger letters” are indeed, tragic, shocking and heartbreaking. It is unforgivable that in our society that such abuse occurs, leaving us in the criminal justice system with its victims, many of whom finally end up in our criminal justice system, because the have violated the law. In the Maui Drug Court, in addition to other treatments, we are able to offer a range of group and individual counseling and therapy and/or medications if necessary, in order to help these offenders identify and overcome their abusive life experiences and change their behavioral responses to the traumatic events in their past lives.

Extra Treatment For Mentally Ill Offenders
Perhaps not as well recognized or appreciated as it should be, many of our citizens who find themselves in our Hawaii criminal justice system suffer from severe mental illnesses, such as schizophrenia, ADHD, Bi-Polar disorder, severe depression, etc. Some are afflicted with more than one disorder and some are very seriously ill indeed.[81]

When we began our Maui Drug Court we decided that we would exclude from participation those offenders who presented with a dual or co-occurring diagnosis of a mental illness or disorder, in addition to drug addiction. We felt we could not adequately address the treatment needs of persons with serious mental health illness. People who suffer from mental illness often appear to “self-medicate” with illegal drugs, such taking Meth to treat their ADHD.

We found, however, fairly soon, that a large percentage of the offenders who applied for admission to our Maui Drug Court suffer from a diagnosed mental illness. The Author and our Maui Drug Court staff estimate that perhaps as many as 70% of our ongoing offender population in treatment suffer from one or more co-occurring mental illness or disorder. Among offenders applying to our Maui Drug Court Bi-polar disorder and depression appear to be the most common mental illnesses. The high incidence of mental illness in this population increases the challenges we face in treating these offenders for their illegal drug addiction problems.

While it is difficult to know which came first, their illness or their Meth use, the Author now suspects that the Meth use itself may be the cause of more of the mental illness that we observe in our offender population than we at first believed to be the case. This remains to be, and should be, studied. However, in the meantime, we have found that once these offenders are stabilized on appropriate psychiatric medication, they, too, can then be successfully treated for their illegal drug addictions and criminal behaviors.

Fortunately, we do not need to answer the causation question; and, these offenders, perhaps aided as well by the unique structure and support offered by our Maui Drug Court treatment program can succeed. In fact, these offenders often do very well in our program. This has been an unexpected, but very rewarding development in our Drug Court experience.

Finally, because of their unique challenges, these offenders would be truly lost, but for their opportunity to seek and receive treatment for their complicated and debilitating combination of addiction and mental illness, in our Maui Drug Court.[82]

Graduation Day!!
Graduation day at Maui Drug court is a remarkable evolution that lives in one’s memory and is not to be soon forgotten. Anyone who has lived in Hawaii for very long knows the importance in a person’s life of having graduated! A Maui Drug Court graduation ceremony incorporates and represents a powerful combination of matriculation, redemption and personal accomplishment.

Graduation from our Maui Drug Court program requires, among other things, that an offender complete a minimum of twelve months of successful program participation, although, as previously mentioned, most offenders take two or more years to graduate. The relatively long duration of the program is an important factor in its success. The four phases of treatment coupled with various “set-backs” that are often imposed as sanctions during the progress of an offender through our Maui Drug Court treatment program often results in an offender taking much longer than the one year minimum to complete the program. However, whatever time it takes, it will be, for him or her, the “correct” amount of time necessary, to be fully ready to graduate and return to society.

In this sense the program of each offender is self-timed or self-tailored to meet their individual needs. In order to graduate from our Maui Drug Court an offender must, in addition to having completed all four phases of treatment, remain drug/alcohol free for an extended period of time, possess (or have earned) a high school diploma or equivalent, perform 30 hours of restorative justice helping a person whom he or she has harmed, pay off any restitution owed to their victims, pay all fines or fees owed, have a full time, tax-paying job or be attending college full time working towards a degree, and reside in approved clean and sober housing. We also strongly encourage each offender to stop using tobacco products as an integral part of their treatment and recovery, and to recognize the danger of continued tobacco addiction to their sobriety.

Many of our offenders in our Maui Drug Court program never graduated from High School. Because of the many requirements of our Maui Drug Court that an offender must accomplish in order to graduate, for those who do finally reach this goal it is a singular life achievement for which they and their families (and all of us involved in the Maui Drug Court) can be justly proud. It is truly an honor to be a small part of a program such as our Maui Drug Court that has the ability to help these offenders free themselves from the curse of drug addiction, and also at the same time, to provide them with the means to heal spiritually, become whole again and recognize, perhaps for the first time, their own remarkable achievement and potential. That our Judiciary has been able to grow and adapt to serve the needs of our citizens in such a remarkable way is truly inspiring. Our Maui Drug Court represents an excellent example of the creative employment of judicial resources to serve the needs of our citizens and it helps to show the way for other innovative programs and other responses with which our Judiciary may serve our communities.

The substantial number of offenders in our Maui Drug Court who have attended college while they are in our program has also been a remarkable and unanticipated development, of which we, initially, were astonished, but about which we are now simply very proud. It turns out that many of our offenders are highly motivated to return to school, in particular to go to college. As a result of our successful collaboration with the University of Hawaii Maui Campus, more than one-third of our participants are currently enrolled and attending classes as students![83]

The Author believes that enrolling in college, something most of our offenders would have been highly unlikely to do, but for their participation in our Maui Drug Court, represents for our offenders the making of a truly significant commitment to themselves and a simultaneous statement to the community that they have returned and that they are ready to participate as a full share participant and member. The look of pride and the sense of accomplishment they exude when they talk about their classes and their progress are remarkable and inspiring. Finally, our Maui Drug Court case managers have worked together with the outreach counselors at the University of Hawaii, Maui Campus to help our offenders apply for and obtain financing in order to pay the tuition and expenses for their classes. They have been very successful in assisting our offenders too enroll and obtain the necessary funding to go to college. This is a good example for our offenders to appreciate how others in society want to and will help those who they believe are sincerely trying to change their lives and return to being productive members of our community. It represents a combination of community forgiveness, mutual healing and reconciliation.

There are No “Failures” in our Maui Drug Court
Another, more subtle but important, benefit of the treatment Dorm component of our Maui Drug Court program to consider is the long term benefit provided to those offenders who participate in our program, but who nevertheless fail the program. This may appear to be counter-intuitive, but rarely is an offender terminated from the Maui Drug Court program before he or she has completed 60 days of Dorm treatment or 60 days of out-patient treatment. This period of treatment is the most intensive of our treatment protocol. Therefore, even when an offender is eventually terminated from our Maui Drug Court program, by virtue of having provided this initial, in-custody treatment experience, our Maui Drug Court has, nevertheless, exposed the offender to high quality drug treatment for an extended period of time. Therefore, if and when these offenders eventually decide to stop their illegal drug use, which we know that at least some will do later on, these former Maui Drug Court participants will certainly know how to re-engage with the treatment/recovery community, go to a meeting, get a sponsor, work the 12 steps, etc. This is especially significant when one considers that the average age of drug use onset in Maui is 12-14 years; often younger.[84] These youthful drug offenders are devoid of any accurate knowledge about the harmfulness of the illegal drugs they use or of any useful information about finding help or drug treatment or recovery. By providing this initial treatment experience, even those offenders who are program failures are, as a result of the treatment they have received during their time participating in our Maui Drug Court treatment program, capable of re-initiating recovery, and thus represent a treatment success that will assist in reducing community harm in the long run. Literally, then, every penny invested in our successful Maui Drug Court treatment program is a community investment that pays, and will continue to pay, great and long lasting dividends in harm reduction and community redemption for offenders.


Life Blood: Funding Of The Maui Drug Court & “The Friends”
Our Maui Drug Court receives its funding out of the Second Circuit Court budget which is provided for by the Hawaii Legislature. The treatment component of our Maui Drug Court is primarily provided through private, non-profit drug treatment providers under purchase of service contracts with the Second Circuit. These treatment providers and their contracts with the Judiciary are closely monitored by our Program Specialist staff of the Second Circuit Court.

Currently, our Maui Drug Court contracts with Aloha House of Maui for out-patient treatment and BISAC (Big Island Substance Abuse Council) for treatment provided in our residential Dorms located within MCCC. Our Maui Drug Court Case Managers oversee the over all progress of each participant and also provide supplemental counseling and treatment. Case Managers are employees of the Second Circuit Court, supervised by the Maui Drug Court Administrator and Clinical Director.

In addition to funds provided by the Hawaii Legislature, our Maui Drug Court receives small amounts from donations to a non-profit, charitable corporation named “The Friends of the Maui Drug Court”[85] (The Friends), which we established at the same time as our Maui Drug Court. The Friends is completely separate from the Hawaii Judiciary and has its own, independent board of directors and officers. The Friends engages in fund raising activities in order to assist the Maui Drug Court with additional funding.

The existence of The Friends allows our program to source modest amounts of additional money to provide for extras, such as small rewards and incentives given to offenders to positively reinforce their progress in our treatment program. For instance the Friends pays for and organizes an informal “pot luck” celebration held at a nearby community center for our graduates and their families and guests after the formal Maui Drug Court graduation held, usually quarterly in our Maui Drug Court courtroom, at Second Circuit Court. For graduations of our Molokai offenders we hold a formal graduation ceremony at District Court at Kaankakai, Molokai, followed by a pot luck luncheon celebration for graduates, family and friends, at the ancient Hawaiian fish pond nearby where most of our Drug Court offenders perform their community service and from which the food for our luncheon is gathered by our Molokai Drug Court graduates and their friends. Our Maui Drug Court graduation in Molokai is definitely a day to remember!

We have always wanted to establish an “alumni organization” for our Maui Drug Court program in order to support the long term recovery of our graduates after they graduate. We will continue to seek support from The Friends and from other sources for this and other related post-graduate activities, which we believe are important, but which we are not likely to be able to receive public funds. The Author believes that an Alumni organization would provide significant support for our graduates at a critical transition point and thereby substantially reduce program recidivism that occurs post-graduation. We were the first drug court in Hawaii to establish a non-profit charitable support corporation like The Friends; now most Hawaii drug courts are supported by a similar entity.

Unfortunately, graduation from our Maui Drug Court in and of itself is a crisis point and potential “trigger” for use for some offenders, because of the cessation of support that occurs. Even though they have successfully graduated, some offenders continue to need the structured support provided by a program which could be provided by an organized Alumni organization.

Need For Clean & Sober Housing
A very serious problem we face in our Maui Drug Court treatment program is that of assisting our offenders to obtain clean and sober housing when they enter our Drug Court program, as well as for when whose offenders who enter our program through the treatment Dorms are released into out-patient treatment. Often these offenders have no money and many of them have alienated their families to the point that they are offered no help. Later on, families often do offer help, but initially the challenge is great. Sometimes the families themselves are not clean and sober. We have found that local churches and service clubs will generously provide for significant financial assistance to our offenders by providing funds to help pay their initial rent, support and clothing. Assisting our clients with housing is often a difficult challenge. We encourage our participants who are working their way through their Dorm treatment phase to write to local churches, non-profit organizations, service clubs and more recently community businesses, as well as other organizations, for donations to pay their “start up” expenses, for rent, clothing, sundries, etc. This has proven surprisingly successful. This success reflects the strong community support that our Maui Drug Court has earned and enjoys in Maui. We are also working with a local non-profit corporation that provides housing for the elderly to attempt to acquire an apartment building to rent exclusively to offenders who are participating in our Maui Drug Court or who are on probation.

Because of the funding challenges we face and which the Maui Drug Court will no doubt continue to face for the foreseeable future, we must seek and explore creative and collaborative solutions to this and the other problems we face in addressing the ongoing rehabilitation and reintegration challenges of our offender/participants. Allowing an offender to reside in questionable housing merely sets them up for failure.

Changing the Paradigm, Making Offenders Well, Keeping Us Safe – The New Face of Criminal Justice for the 21st Century
At this point the reader may be thinking that if our State’s need to address its Meth epidemic is a serious crisis and that if our Maui Drug Court program is clearly successful at rehabilitating Meth offenders, why are not the criminal justice system in Hawaii, the Judiciary, and our ICIS collaborators recognizing this fact and actively developing a plan to move our criminal justice system to utilize what we have learned with our Maui Drug Court experience or variation of what has been learned from the drug court model?

We now have enough data proving our success for our State, under the leadership of our Hawaii Judiciary and with the collaboration of our ICIS partners, to begin restructuring our criminal justice system to this new, much more promising, effective and humane paradigm in Hawaii. Given this criminal justice data that exists in Second Circuit from our Maui Drug Court treatment program, the fact that overall recidivism in Hawaii exceeds 50%, and that the only programs proven to effectively reduce our recidivism, and therefore illegal drug addiction and crime, in the long run are drug courts, it makes good sense to change our criminal justice system to incorporate some of these features as soon as possible.

The Author acknowledges there may be divergent ideas about how best to proceed in evolving our Hawaii criminal justice system. However, basing our efforts and direction upon the proven successes of the past 11 years of our Maui Drug Court is sound; and, the Author believes that it would be literally guaranteed to yield much better results and enormous benefits and savings for our citizens and our society; certainly much better results than anything else we presently have in place and with which we can effectively address our very serious illegal Meth epidemic and crime problems.

Possible approaches to re-organizing and expanding the Hawaii criminal justice system by incorporating our proven drug court methodology and institutions might include something like the following:


Start a second drug court, or a second division of the extant drug court, to serve those offenders who were not qualified for participation in the initial drug court, including but not limited to those offenders who could not be considered “non-violent.” Add treatment directed to addressing violence or other issues peculiar to these offenders. Create separate treatment dorms in the local jail and provide separate treatment, both in-patient and out-patient. The case managers from the extant drug court might be used. The two populations should be kept apart and treated separately.
Re-organize HOPE probation and our Second Circuit SSU probation programs to incorporate the operative methods from drug court that have made it successful in reducing recidivism. This would include training probation officers to have the skill set of drug court case managers, which should not be difficult. These probation officers and treatment providers would prepare individual case plans for each probationer, review it with the judge on a regular, periodic basis and require that the offender return to court regularly to review treatment progress with the judge. Periodic case reviews would start out with weekly reviews and then reduce depending upon offender performance. Other elements of drug court practice would be incorporated as well with a view to emphasizing positive reinforcement and encouragement. The goal would be to make these probation programs as much like drug court as possible.
Re-organize regular probation to incorporate the operative methods from drug court that have made it successful in reducing recidivism, in a manner similar to paragraph 2, above.
Regarding the re-organization of probation, the judges would be trained to include in their probation orders directives to appropriate treatment and evaluation. We already provide sentencing judges with information from the LSI-R assessments of offenders and this can be expanded. Probation officers may need training to recommend appropriate conditions consistent with this new paradigm into their pre-sentence report and sentencing recommendations to judges. Example: require offenders to participate in 2 restorative justice evolutions in which they seek out a victim, make amends and provide 30 hours of help or service to the victim. We require this now in the Maui Drug Court in order to graduate, and it has proved to be a powerful and positive treatment experience for our offenders.
Treatment dorms should be utilized to provide in-custody treatment in order to prepare offenders for their later, in-community, out-patient probation. There may need to be several dorms to accommodate the population, but this approach will keep offenders in Hawaii and many will qualify for release into out-patient probation and avoid being sent to mainland prisons.
Those who simply will not change or fail to respond to treatment and/or who present community safety concerns, should serve their full term of incarceration. This will act as a deterrent to those who are placed into drug courts or treatment probation tracks. For offenders who are incarcerated, which will include offenders who simply have not responded to the treatment opportunities described above, they should be subjected to mandatory treatment responsibilities during their full prison term. The theory here is that for those who resist changing they will understand that treatment is always an option and highly encouraged, eventually some of these offenders will respond as they observe others change, but failure to respond will result in serving their full sentence. Hopefully, sentencing these more challenging offenders to serve their full terms will be possible because Hawaii prison populations will have gradually reduced as a result of these other changes to the criminal justice system which will tend to keep more offenders out of prison. Bottom line: an offender should be given every opportunity to change, even if it is necessary to force their participation in in-custody treatment programs, and anyone who still refuses should simply stay in prison for the safety of the community. Eventually, the number of offenders who serve full prison terms will be only those who are violent psychopaths who cannot be rehabilitated.

As can be appreciated from reviewing these possible approaches, there are many possibilities and possible combinations that could be incorporated into our existing probation scheme and criminal justice system in order to take advantage of the successes we have realized from our Maui Drug Court experience. Changes can be introduced gradually in a step by step process based ideally upon a master plan which has been developed that will have as its goal the complete redesign of our criminal justice system for the 21st Century. The Author believes that many of these modifications to our current criminal justice system could be accomplished relatively quickly in order that the benefits would be realized as early as possible. The elements of the drug court model that are most important for its success are not obscure, numerous, difficult to manage or control, or otherwise particularly challenging to put into operation from the judiciary point of view; they can be very effective immediately and quickly introduced. There is no reason to do further study or wait; every day counts.

In order to help move us towards this new reality, we in the Second Circuit are currently working to expand our use of our Drug Court methodology to include more of our offenders under probation supervision. We are hoping to implement a Pilot Program for other high risk offenders on probation from our SSU probation program (including some of the so-called “violent offenders” the Author described earlier) who do not qualify for or who have rejected participation in the Maui Drug Court program. This Pilot Program will bring to bear upon this criminal justice population the elements of our Maui Drug Court that have generated our success (close, direct supervision by the judge with immediate consequences coupled with cognitive based treatment and positive reinforcement). Based upon our 11 years of Maui Drug Court experience the Author expects that such a program will yield much better results in recidivism reduction than we have seen in probation to date, even considering our implementation of the LSI-R and such programs as HOPE probation and our Second Circuit SSU probation program. HOPE probation and our Second Circuit SSU probation program should continue to make important contributions while offenders work their way through probation, but without more, significant permanent reductions in criminality and recidivism are unlikely.

This evolution to a new system of criminal justice remediation will involve utilizing judicial resources in new and creative ways that some traditionalists may resist, but serving the people of Hawaii to resolve disputes in our criminal justice system through the use of intermediate sanctions is squarely within the mission statement of the Hawaii Judiciary.

This evolution will continue to change the traditional functioning and roll of our trial judges. However, our trial judges are already evolving into many new, and more effective and socially responsive constructs that our society has requested be addressed. Our judges have already proven themselves to be flexible, creative and adaptable in finding new ways in which to serve their communities. Our judges in fact are very well suited to acting in new and creative capacities. All we need do is make the vision clear and then empower our trial judges to simply build upon the rolls that they are already evolving and creating as they serve our communities and our State in such capacities as adult, family, and juvenile drug court judges, mental health court judges and girls court judges. Our family court trial judges have an outstanding reputation and record of solving and managing the most difficult and challenging human dilemmas imaginable.[86] With trial judges like this, the Hawaii judiciary is more than qualified and ready to tackle and meet the challenges of re-inventing our traditional rolls, leading and meeting the responsibilities of our judiciary to our society and to evolve our criminal justice system, and assist our collaborating ICIS partners in refining and adapting to their new rolls as well.

All of these creative “service” courts that we have now were, for the most part, simply evolved with the help of our trial judges as a natural progression of what the Judiciary does best, serve the people of Hawaii where and when there is a perceived need and where other resources have not proven capable. Our trial judges and our judiciary, it turns out, are remarkably effective in these rolls and in serving society in these capacities. Very importantly, our trial judges relish the challenge of finding new ways to serve our citizens and in providing the necessary leadership to produce results. Perhaps even most importantly, there is no other branch of government or institution that is as effective in these rolls as are our trial judges, and this is the reason we have assumed these rolls by a process of social natural selection and evolution already.


We Can Do This!
Finally, the Author recognizes that changing the paradigm of our criminal justice system to one centered on the proven, successful drug court model will not be either simple or easy. However, if there is any State in which these challenges can be successfully met, that these changes can be made and that this paradigm can be successfully adopted and implemented, surely it is our State of Hawaii. We are truly blessed to live in these unique and beautiful islands. Hawaii is indeed a special place with unlimited possibilities and wonderful, active, and creative people, and, most importantly, we as judges and law professionals owe a duty to our fellow citizens and to our communities to do our very best to address and take action to solve this terrible problem of criminal drug addiction that is crushing the dreams and hopes of our citizens, and to stop the harm that is victimizing our innocent families and the future of our children. There must never again be a drug intoxicated person in Hawaii who throws an innocent child off a freeway overpass to his death!

Let us put our differences and our challenges aside for a moment, in the tradition of our drug courts, and imagine together a vision of a time in our State when our community jails can be and have become “community treatment centers/campuses,” where offenders who are amenable to treatment are motivated to change, educated and trained to change their thinking and behavior to recover and, under the supervision of our judges, make amends to their community, their families and to their victims, and re-enter our society to be successful, contributing citizens! “Imagine” because that is what it takes; a vision of what should be. When the Author first learned about drug courts our judges here in Maui were sentencing Meth offenders to 5 years in prison for trace amounts of Meth because this sentencing was mandatory, yet, on Oahu, where there was a new drug court; judges had created the option of referring such offenders to treatment, to avoid sending them to prison. We faced a terrible dilemma; but it was the law. The Author imagined that we could have our own drug court here in Maui in order that we also could qualify for this exemption. As a result of hard work by our Maui judiciary staff, we had our Maui Drug Court up and running within a year. These challenges can be met and these changes can be made. Armed with the data and techniques we now possess and the leadership of dedicated Drug Court/Recovery Court judges, and our talented judiciary staff, treatment providers and ICIS collaborating partners the whole paradigm for our treatment of criminal justice offenders in Hawaii can and must be transformed into this new, much more successful and humane paradigm.







OUTLINE FOR MOCK JURY TRIAL -- STATE OF HAWAII VS. ALBERT VILLADOS, Criminal No. 08-1-0115(2)

Purpose: To provide a simple, basic roadmap of the Mock Jury Trial that we can use to guide the progress of our trial, in order to ensure that the participants will be clear about what they are to do and that they understand the anticipated order of events in the trial.

TIME EVENT/ACTIVITY

NOTE: --Before the trial begins the Judge will have met with the lawyers to discuss various issues about the trial that must be discussed outside of the hearing of the Prospective Jurors. One such item is called the Witness Exclusionary Rule. Usually the lawyers will request that all people who are expected to be called to testify as witnesses in the trial must remain outside of the courtroom until they are called to testify, except, of course, the Defendant, who has the right to be present during every stage of the trial. This means that the witnesses will not hear the testimony of the other witnesses before they, themselves, testify in the trial. Otherwise a witness could listen to the testimony of a witness who testifies before him or her and alter, or “tailor” their testimony accordingly. Therefore, this is a simple technique that helps to ensure that the jury hears only the most independent, honest and accurate facts and testimony that is reasonably possible from the witnesses.


THE JURY REPORTS TO THE COURT FOR JURY SERVICE

8:00 – Prospective jurors gather in the courtroom, reporting in for jury service. They have been summoned to appear in court.

-Court Clerk makes a list of the names of the people present from which to select the jurors necessary for the trial.

8:15 – Court Clerk will inform the Judge that the Prospective Jurors, lawyers and Defendant are present and that they are ready to begin the trial, and the process of selecting the jury.




TRIAL BEGINS WITH THE SELECTION OF THE JURY

8:15 - The Judge enters the courtroom and takes his seat, at the same time the Court Clerk declares: “Please rise, Courtroom No. 2 of the Second Circuit Court is now in session; the Honorable Chief Judge Shackley F. Raffetto presiding.” After the Judge sits down, the Clerk will say to everyone in the courtroom: “Please be seated.”


THE CLERK WILL CALL THE CASE

8:16 - The Clerk of the Court then by saying: “Calling Criminal Number 08-1-0115(2), State of Hawaii vs. Albert Villados, Jr., also known as Alberto Vilados Jr., for Jury Trial.


THE LAWYERS WILL INTRODUCE THEMSELVES AND THE DEFENDANT

8:17 – The Prosecuting Attorney, representing the State, then says: “Good morning your Honor, Robert Wong and Howard Chang, appearing for the State. The State is ready for trial.”


The Defense Attorney then says: “Good morning your Honor, Judy Fong and William Chan appearing on behalf of Defendant Albert Villados, Jr. May the record reflect the presence of the Defendant, Albert Villados, Jr. The Defense is ready for trial”

- The lawyers stand up when they do this and they stand up every time they say anything to the Judge or the Jury during the trial! This is a custom of respect for the office of the judge and the institution of trial by jury.

8:18: - The Judge then asks if the Prosecution is ready to proceed and then if the Defense is ready to proceed, then the Judge says: “Good morning ladies and gentlemen, welcome to the Second Circuit Court.

JUDGE’S PELIMINARY WELCOMING REMARKS TO PROSPECTIVE JURORS


The Judge will make brief opening remarks to Prospective Jurors.






THE CLERK WILL CALL THE ROLL OF PROSPECTIVE JURORS

8:20 – The Court Clerk will call the roll of the people who have reported as Prospective Jurors for this trial in order to determine if all of the Prospective Jurors are present who were summoned.


The Court Clerk will say: “When you hear your name called, please say “here” in order that we will know you are present”


Each Prospective Juror says “here” when their name is called and the Clerk records their presence.


THE CLERK WILL ADMINISTER THE OATH TO THE PROSPECTIVE JURORS

8:30 – The Judge then will ask the Prospective Jurors to “Please stand, raise right hand in order to take your Oath as Prospective Jurors for this trial.”

- The Court Clerk administers the Oath: “Do you and each of you solemnly swear or affirm that you will true answers give to all questions that may be put to you touching upon your qualifications to serve as Trial Jurors in the case now pending before this court?”. If you so swear, say “I do.. The Prospective Jurors will say “I do.” Clerk: “Thank you, you may be seated”.

- The jury stands, listens to the oath, says “I do” and then sits down.





THE CLERK READS THE CRIMES CHARGED AGAINST THE DEFEDANT

8:35 – The Judge asks the Court Clerk to read out loud the charges that the State has brought against the Defendant in this case.

-The Court Clerk reads the Charges to the Prospective Jurors.


EACH LAWYER WILL GIVE A “MINI OPENING STATEMENT”

8:40 – The Judge next requests that each of the lawyers, starting with the Prosecuting attorney, present a “Mini-Opening Statement” to the Prospective Jurors.

-Before the lawyers present their Mini Opening Statements, the Judge gives the Prospective Jurors a brief description about what the Mini Opening Statement is and its purpose. It is a brief statement of what the lawyer expects will be shown by the facts.

-Prosecutor gives Mini Opening Statement (brief statement of expected FACTS of the case). No more than 5 minutes, not argument!

-Defense attorney gives Mini Opening Statement.


THE CLERK CALLS THE NAMES OF THE FIRST 12 PROSPECTIVE JURORS TO SIT IN THE JURY BOX

8:50 – The Judge asks the Court Clerk to call, at random, the names of the first 12 Prospective Jurors. The Clerk says: “If you hear your name called, please take a seat in the jury box” The seats are located in an area designated for the jury to sit during the trial, each of the names in the following manner: “Mr. Tong will be seated in seat number 1.” Mr. Tong gets up and takes seat number 1 in the Jury Box, and so on until all 12 seats are filled.


THE JUDGE GIVES THE PROSPECTIVE JURORS INSTRUCTIONS ABOUT THE PROCESS OF JURY SELECTION


9:00 – The Judge asks all Prospective Jurors to listen carefully and then gives preliminary jury instructions to them about the process of jury selection and the citizen’s duty to serve as a juror when called upon under the law. The Judge will point out that the rest of the Prospective Jurors, who are not seated in the jury box must also pay attention, as they may eventually be seated in the Jury Box themselves, if someone should be later excused from serving!


THE JUDGE WILL ASK QUESTIONS OF THE PROSPECTIVE JURORS

9:15 – Judge will ask the 12 seated Prospective Jurors questions about their qualifications to serve as jurors in this trial and at the same time give them more information about their jury service. If as a result of their answers the Judge determines that a Prospective Juror is not appropriate for service in this trial, then the Prospective Juror will be excused and another person will be seated. When the new person takes the seat vacated the Judge will ask the new person similar question. The inquiry will be to determine whether a Prospective Juror can be “fair and impartial” or whether there is any reason that they should excused “for cause,” that is, some good reason.

-The Judge will ask the Court Clerk to read the names of people who the lawyers have told the Judge may be called as witnesses in the case, in order to determine whether any of the Prospective Jurors knows or knows about any of these people or their friends and families.

-The Judge’s questions will usually take about 15-20 minutes.





THE LAWYERS WILL THEN ASK SIMILAR QUESTIONS OF THE PROSPECTIVE JURORS

9:30 – Judge will next inform the Prospective Jurors that each of the lawyers will now be permitted to ask similar questions of the Prospective Jurors.


The Prosecutor asks questions (limited to 20 minutes).

- Next, the Defense lawyer asks questions (limited to 20 minutes).

- During this questioning process if it should appear from a Prospective Juror’s answers to questions that they should be excused “for cause” then the Juror will be thanked and excused. Then the Clerk will call the name of another Prospective Juror and the Judge, and the lawyers will question the new person.

TAKE A 15 Minute BREAK FROM JURY SELECTION – Usually the Court will take a break every hour or so of 15 minutes because the Prospective Jurors are not used to this process and it is tiring.

-Judge instructs the Prospective Jurors not to talk about the case among themselves or with others, during the break.


THE JUDGE EXPLAINS THE PROCESS OF THE LAWYERS EXERCSING “PREEMPTORY CHALLENGES” TO EXCUSE JURORS

10:30 – The Judge will explain the process of Preemptory Challenges to the Prospective Jurors --- the right of each of the Prosecutor and Defense lawyers to excuse up to 3 of the Prospective Jurors, without having to give a reason for doing so. As each is Prospective Juror is excused, then the Court Clerk will call the name of another person who will take the seat vacated by the person who was excused. The parties alternate in exercising these Challenges. This process goes on until each side has the opportunity to exercise or waive its 3 peremptory challenges. They may waive any or all of their Preemptory Challenges if they wish, if the believe the jury composition is acceptable for the trial. They may waive a Challenge by saying “Your Honor, the Defense finds that the jury is highly qualified and acceptable and therefore waives its 2nd Preemptory Challenge.”


ALTERNATE JURORS ARE SEATED AND QUESTIONED

11:00 - Selection of 2 alternate jurors – After the Preemptory Challenges are exercised or waived by the parties, the Clerk of the Court calls 2 additional names from the Prospective Jurors and Prospective Jurors will take the 2 seats designated for Alternate Jurors. One or both of the Alternate Jurors will be asked to take the place of a Trial Juror in the event one or more Trial Juror becomes ill or cannot continue with their trial service for any reason.

-The Judge will ask the Alternate Jurors a few questions and then the Prosecutor and the Defense lawyer will have the opportunity to ask questions of these 2 new prospective jurors to determine if they can be fair and impartial and serve as jurors if they need to.


THE CLERK GIVES OATH TO TRIAL JURORS

11:20 – Next, the Judge will ask the Court Clerk to give the Trial Juror oath to the Prospective Jurors since it is these people who will be the Trial Jury for the trial of this case, and the jury selection process will be completed! The Clerk of the Court gives the oath: “Please rise and raise your right hands.” “Do you and each of you solemnly swear or affirm that in the case now pending before this Court, you will a true verdict give, according to the law and the evidence.” If you so swear, say “I do.” The Jury: “I do.”


THE REMAINING PROSPECTIVE JURORS ARE EXCUSED

11:40 – The Judge will then thank and excuses all of the remaining Prospective Jurors who reported for service, but who were not selected to serve as Trial Jurors in this case.




THE JUDGE WILL GIVE THE TRIAL JURY ADDITIONAL, PRELIMINARY INSTRUCTIONS ABOUT THE TRIAL PROCESS

11:45 – Next, the Judge will give the Trial Jurors additional preliminary instructions about their service as jurors in this case, including their right to take notes (the Bailiff will provide each juror with a paper pad and pen to take notes on if they wish during the trial) and their right to submit questions in writing for the witnesses after the lawyers have finished asking their questions, to clarify the facts, during the trial. The Judge instructs the jurors on these matters.


THIS COMPLETES THE JURY SELECTION PROCESS
TAKE A BREAK – Lunch break is usually 1 hour and the jury is again instructed by the Judge not to talk about the case


THE COURT IS RECONVENED AND THE TRIAL BEGINS

1:00 – After the attorneys and the Defendant are present, the Clerk will notify the Judge. As the Judge enters the courtroom the Clerk will say: “All rise”. Everyone will stand up. The Judge will enter the courtroom, sit and say: “Let the record reflect that all those present before the break are again present (unless someone is not there then the Judge will note their absence, etc.). The Judge will then say: “Will the Bailiff please summon the Jury into the court room”. The Bailiff goes to the jury room and brings the Jury into the courtroom and they take their seats. When the Jury enters the court room the attorneys and the parties will stand until the Jury has entered the court room and has been seated”. The Judge will tell the Jury: “Please be seated”.


The trial is always conducted with a great deal of formality seriousness because of the serious nature and the respect of the parties for the trial process and the importance of the rights that are under consideration.


THE LAWYRS HAVE AN OPPORTUNITY TO PRESENT OPENING STATEMENTS TO THE JURY

1:00 – Judge asks the Prosecuting attorney if he wishes to present an Opening Statement to the Jury.


Then, the Defense attorney has the right to present an Opening Statement.


The Opening Statements of the lawyers are intended to give the Jury a brief overview of the anticipated facts that will be presented in the trial, in order to aid their understanding. This is not argument and the lawyers should not argue! If an attorney argues during Opening Statement, the other lawyer may object.


The lawyers will simply state the facts they expect that will be shown to the Jury during the trial. Each side will be limited to 20 minutes, depending upon the complexity of the case.


Example: “Ladies and Gentlemen the Defense plans to call 4 witnesses in this case. The first witness, Mrs. Wong will tell you that when she was arriving at her home in her car from work, she saw the Defendant walking…….The Defendant looked directly at Mrs. Wong and said “I have your money….etc.”


After the lawyers have given their Opening Statements the Judge will ask the Prosecutor to call his first witness to testify.



THE JUDGE ASKS THE PROSECUTION TO CALL ITS WITNESSES

1:45 – The Prosecuting attorney has the right to present its witnesses to call his first witness. The witness will be called as follows: “At this time your Honor the State calls Officer Charles Wong to testify”. Officer Wong enters the courtroom if he is not already and stands by the witness chair. The Court Clerk will administer the oath to Officer Wong: “Please stand and raise your right hand --- “Do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth and nothing but the truth?” Witnesses: “I do” Clerk: “Please be seated.”

-The Prosecutor then says: “Please state your name and address”……and then begins his direct examination of the witness, being careful not to ask any leading questions.

-Next, the Defense lawyer has the right to ask cross examination questions of the witness, asking leading questions if he wishes to test the memory, credibility and truthful ness of the witness or to bring out facts that he thinks will be favorable to the position of the Defendant, in order to show that he is not guilty or that there is a reasonable doubt about whether he is guilty.


THE JURORS WILL BE PERMITTED TO SUBMIT QUESTIONS IN WRITING TO THE JUDGE TO ASK OF THE WITNESS, BUT ONLY THE CLARIF THE FACTS OF THE CASE.

-After the lawyers are finished asking questions of a witness, then the Judge will ask the Jury to raise their hand if anyone would like to write out a question to be asked of the Witness. If “yes”, then the written question is given to the Bailiff who then gives it to the Judge, who, together with the lawyers, will look at the question, allow the attorneys to state any objections they may have to the question (irrelevant, prejudicial, calls for speculation, calls for hearsay, etc.), and then the Judge will decide whether to sustain any objections to the question. If the Judge overrules any objection, then he will ask the question of the witness and then give the lawyers an opportunity to ask follow up questions based upon the juror question. The question must be to clarify the facts of the Witnesses testimony, not to make a statement by the Juror or argue with the Witness.

2:30 - The Prosecutor will call all of its witnesses and they will be questioned in a similar manner



NEXT TRIAL DAY


THE DEFENSE HAS THE RIGHT TO PRESENT WITNESSES OR EVIENCE

8:00 – After the Prosecutor finishes calling all of his witnesses, the Defense attorney has the right to call witnesses to testify to bring out facts that are favorable to the Defendant. He must ask direct (not cross examination) questions, and then the Prosecuting attorney may ask cross examination questions of each of the Defense witnesses.

-Before the trial is over, the Judge must speak directly with the Defendant, outside of the hearing of the Jury, and tell him that he has the right to testify or to remain silent and not testify and whatever he decides the Judge will instruct the jury not to consider whether he testified or not in deciding his case. The Defendant must tell the Judge that he understands his right and that it is his decision whether to testify, not the lawyer’s or anyone else. This is a very important rule in the US and is strictly enforced.

-The Defendant may testify if he wishes, but he has the right to remain silent and not testify if he wishes. If he decides not to testify the Judge is required to instruct the Jury that they may not consider the fact that the Defendant did not testify in the trial against him or consider that fact in any way in arriving at their verdict. If it were ever discovered that during Jury deliberations that they discussed the fact that the Defendant did not testify to explain his side of the story, or if the Prosecutor mentioned it during his argument, then, this would be reversible error and any conviction of the Defendant would be reversed.



PROSEUCTOR MAY PRESENT REBUTTAL WITNESSES; THE DEFENSE SUR-REBUTTAL WITNESSES

-After the Defense has presented its witnesses, the Prosecutor has the right to call more witnesses to “rebut” the testimony of any of the Defense witnesses it wishes to rebut. Then, if it wishes, the Defense may present “sur-rebuttal witnesses if it wishes. Sur-rebuttal witnesses are rare and rebuttal witnesses are not commonly presented, usually the Prosecutor has presented all of this best evidence and witnesses during his chase in chief.


THE JUDGE WILL GIVE EACH JUROR A SET OF THE WRITTEN JURY INSTRUCTIONS ON THE LAW, AND READS THEM TO THE JURY

-After the Defense lawyer has called all of his witnesses, then the Judge will ask the Bailiff to give each juror a complete set of the written jury instructions and then the Judge will then read all of these instructions to the jury. The attorneys and the Defendant will also be given a complete set of the written jury instructions.


THE PROSECUTION AND DEFENSE HAVE THE RIGHT TO PRESENT THEIR CLOSING ARGUMENTS


9:00 - Next, the Prosecutor will have the opportunity to present his Closing Argument to the jury. He may refer to the written jury instructions and compare the definition of the crimes with the facts that have been shown. He is limited to speaking only about the evidence and testimony that have been presented during the trial, nothing else! The attorneys may not argue about or refer to any outside sources or facts that were not presented during the trial in the courtroom. He will be given 20 minutes, depending upon the case.

-The Prosecutor may point out to the jury, for instance, the instructios that define the crimes charged against the Defendant, then identify each element of a crime and then show how, during the trial, he presented evidence to prove each of the elements of the crime beyond a reasonable doubt. He may also show that if the Defendant testified that he was not truthful or that he told a different story at a different time, etc. or other evidence to show the Defendant should not be believed by the Jury.

9:30 - Next, the Defense attorney will be given an opportunity to argue to the jury.

-The Defense lawyer may emphasize the fact that the law requires the Prosecutor to prove that the Defendant is guilty beyond a reasonable doubt; the Defendant does not have to prove anything! He may argue that this is very highest standard of proof in the law, and that the Prosecutor has failed to offer the necessary proof. He may argue that the jury promised that if the Prosecutor failed to prove the case, that they would vote not guilty and they now have a duty to do that. The lawyer can tie into his argument statements he may have made to the Jury during the jury questioning at the beginning of the trial.

10:00 – Then, finally, the Prosecutor will be given an opportunity to present a rebuttal argument, rebutting anything that the Defense attorney said in his argument. If the Prosecutor is limited to 20 minutes and he wants to offer a rebuttal argument he must use some of his allotted 20 minutes. Argue for 15 minutes and save 5 minutes for rebuttal, so he will have the last word with the Jury. Most attorneys consider this to be good trial practice.


THE ALTERNATE JURORS ARE EXCUSED

10:10 – After the lawyers have presented their closing arguments, if it has not been necessary to excuse a juror and replace that person with an alternate juror, then the 2 persons who served as alternate jurors will be thanked and excused by the Judge and they may leave the courtroom. Their done their duty.



THE CLERK WILL GIVE THE OATH TO THE BAILIFF

-Next the Court Clerk will administer to the Bailiff an Oath: “Please raise your right hand.” Clerk: “Do you solemnly swear that you will take this jury in charge; that you will not communicate with them, nor allow anyone to communicate with them, except by order of the Court; and that you will conduct them into Court again whenever so required by them or by the order of the Court?” The Bailiff: “I do.” The Bailiff is responsible to see to the comfort and security of the jury and will inform the Judge if the jury has any questions or problems. The Bailiff will also make certain that no one interferes with the jury deliberations or listens in or otherwise learns about what the jury is discussing. Jury deliberations must be kept entirely private.

-No one but the Bailiff may enter the Jury room during deliberations and he may only stay long enough to carry out his duty, then he must immediately leave.


THE JUDGE INSTRUCTS THE JURY TO WITHDRAW FROM THE COURTROOM AND BEGIN THEIR DELIBERATONS

11:00 – This is the end of the case and the Jury is instructed to withdraw from the courtroom into the jury deliberation room and begin their deliberations with their fellow jurors with a view to reaching a verdict, using the Verdict Form that they will be given. The Verdict Form has questions on it and a line for the Foreperson to sign and date the Verdict when the Jury has reached a verdict.


THE JURORS MUST SELECT A FOREPERSON

-The Judge will have instructed the Jury that one of its duties when it begins its deliberations is to first elect a Foreperson to organize and supervise their deliberations, in order that their deliberations will be efficiently conducted and that everyone who wishes to express themselves will be given an opportunity to do so.


THE JURY MAY CONSDER DOCUMENTARY OR PHYSICAL EVIDENCE

-Any documentary evidence that was presented and accepted into evidence during the trial, such as photos, or the drugs will be taken into the jury room by the bailiff and shown to the jury. The drugs will not be left in the jury room and will be given back to the Clerk of the Court whose job it is to keep custody of any physical evidence during the trial.




NO TIME LIMIT ON JURY DELIBERATIONS

-During jury deliberations the Jury may take as long as they wish. There is no time limit. The Jury may submit questions in writing if they wish to the judge, through the Bailiff. If they ask questions, the Judge will show the questions to the lawyers and then answer the question in writing.


VERDICT IS REACHED!

-After the Jury reaches a verdict it will fill out Verdict Form, the Foreperson will sign and date the Form where indicated, notify the Bailiff who will in turn notify the Judge. The Bailiff informs the Judge, the Clerk of the Court informs the lawyers and the Defendant, and they all will return to the courtroom to hear the Verdict. The Verdict is required by law to be rendered and published by being read out loud in an open, public courtroom. The public had the right to be present for the rendering of the Verdict.

-After everyone is gathered together, the Judge will re-convene the Court without the jury present, only the Judge, Clerk, lawyers and the Defendant and any members of the public who wish to watch are in the courtroom.





THE VERDICT IS GIVEN TO THE JUDGE AND THE CLERK PUBLISHES THE VERDICT BY READING IT IN OPEN COURT

-The Judge will then instruct the Bailiff to escort the Jury into the courtroom. The Jury enters the courtroom and takes their seats. Again the Clerk will call everyone to stand as the Jury enters and is seated. The lawyers and defendant stand when the Jury enters the courtroom. The Judge will ask the Foreperson of the Jury to identify himself or herself, and advise the Court if it has reached a Verdict. “At this time will the foreperson please identify himself or herself and inform the Court whether the Jury has reached a verdict.” Foreperson: “Yes, your Honor, the Jury has reached a verdict”. The Judge will then say: “Please hand the Verdict to the Bailiff who, without looking at it, will bring it to me”. The Bailiff brings the Verdict Form to the Judge, who will then open it and check it for errors. If there are no errors, then, the Judge will say: “At this time I will ask the Clerk of the Court to publish the Verdict by reading it out loud” “Will the Defendant please rise!” The Defendant and the lawyers stand to hear the reading of the verdict.

-The Clerk of the Court reads the entire Verdict Form out loud into the record.


THE LAWYERS MAY REQUEST THE JURY BE “POLLED”

-The Judge will then ask the lawyers if that is all for the jury. If one of the lawyers asks that the Jury be “polled” then the judge will tell the jury “Ladies and Gentlemen, when you hear your name read if you voted for the verdict as it has just been read, say “yes”, if not say “no”. The Clerk will read the names of the Jurors and their answers will be recorded. All of the Jurors should say “yes”, if not; then, the Judge will ask the Jury to return to the jury room and the judge will meet with the lawyers to determine what the problem is and what to do about it. There are several options, depending upon the problem.


THE JUDGE WILL THANK AND EXCUSE THE JURY

-If there is no problem with the Verdict, then the Judge will take a moment to thank and compliment the Jury for their service, tell them they are released form their oath and they may talk about the case if they wish, and read about it in the newspapers if there is any reporting, asking that they respect the privacy of their fellow jurors and not discuss what the jurors said to each other during their deliberations. Actually, there is no legal restriction, it is just believed to be good practice to request this courtesy for the Jurors, as the deliberations may have been heated and intensely argued between the jurors.

-The Jury then leaves the courtroom, their duty has been fulfilled, and they will not be subject to being called for jury service for another year.


THE JUDGE WILL REVIEW THE DEFENDANT’S BAIL STATUS AND SET SENTENCING OR RELEASE THE DEFENDANT, DEPENDING UPON THE VERDICT

-The Judge will then ask about the Defendant’s bail status (the amount of the bail) if he has been found Guilty and probably raise the amount of his bail. He will set a sentencing date and order the preparation of a Presentence Investigation and Report to be prepared by the Probation Department and given to the Judge and the lawyers for reference at the time of sentencing. The jury will not participate in the sentencing. The sentence on the Defendant will be imposed by the Judge, taking into consideration various factors required by the law.



THE DEFENDANT HAS THE RIGHT TO APPEAL IF CONVICTED

-The Defendant may appeal his conviction to a higher court with in 30 days of the entry of the Judgment of Guilty.

-If the Defendant is found Not Guilty, then the Defendant is ordered released by the Judge if he is in custody and that is the end of the case. The charges may never be brought against the Defendant again.


NOTES:

After every break the Clerk will bring the lawyers, Defendant and the jury into the courtroom and then send someone to tell the judge that they are ready. When the judge enters the courtroom, the Clerk will say “All please rise. This court is reconvened.” When the Judge enters the courtroom everyone in the courtroom stands up out of respect for the office of the Judge. After the Judge comes into the courtroom and sits, then the Clerk will say “Please be seated,” and every one will sit down.


The law requires that every thing that is said by the lawyers, the parties, witnesses, jurors and any other person who participated in the trial be recorded. In the past the recording was accomplished by a Court Reporter who recorded what was said by taking short hand transcription. Later, machines were used which were operated by the Court Reporter. Currently, modern courts often use video recording machines which record the proceedings and then later a Court Reporter may transcribe them into a booklet for convenient use by the appellate courts. It is the duty of the trial Judge to ensure that everything that is said or none during the trial, and the presence of the persons who participated in the trial are noted on the record. The record is kept permanently and becomes part of the history of the jurisdiction. In this case State of Hawaii vs. Villados is part of the history of Hawaii. Mr. Villado was convicted and sentenced by Judge Raffetto to 5 years in prison, where he is still serving his sentence. Hopefully, he will reform and not commit other crimes in the future.

3. A Defendant in a criminal trial has a right under the law to be personally present at every stage of the trial process and it is the duty of the trial Judge to ensure that he understands this right and has the opportunity to be present if he should wish to do so.