Proposed Constitutional Amendments

[pzarquon]

There are a lot of hotly contested races between candidates to vote on this November, but there will also be a few other important decisions Hawaii residents will be asked to make. There are four proposed constitutional amendments on the ballot this year. None will get quite the high-profile attention the same-sex marriage question did years ago, but they still involve important issues that each of us should familiarize ourselves with.

The four proposed amendments are:

HB2789 (HD1/SD1): Sexual Assault Crimes - Shall the Constitution of the State of Hawaii be amended to provide that the legislature may define what behavior constitutes a continuing course of conduct in sexual assault crimes?
SB2843 (SD1/HD2): Sex Offender Registry Information - Shall the Constitution of the State of Hawaii be amended to provide that the public has a right of access to registration information regarding persons convicted of certain offenses against children and persons convicted of certain sexual offenses...
SB2846 (SD1/HD2): Confidential Communications Between Crime Victims and Counselor or Health Professionals - Shall the Constitution of the State of Hawaii be amended to permit the legislature to provide by law for the inadmissibility of privileged confidential communications between an alleged crime victim and the alleged crime victim’s physician, psychologist, counselor or licensed mental health professional?
SB2851 (SD1): Felony Information Charging - Shall Hawaii’s constitutional provision regarding the initiation of criminal charges be amended to permit criminal charges for felonies to be initiated by a legal prosecuting officer through the filing of a signed, written information setting forth the charge in accordance with procedures and conditions to be provided by the state legislature?

You can get all the details from the state legislature (http://www.capitol.hawaii.gov/sessioncurrent/ConAm/default.asp), but more useful will probably be the single, combined factsheet (http://www.hawaii.gov/elections/facts/fsbo134d.pdf) (PDF) put together by the Office of Elections.

I'm curious what everyone things about any of these amendments. If the discussion on one or two specific questions becomes extensive, we can split off separate threads for them.

[Glen Miyashiro]

I don't like any of 'em. I worry about the erosion of due process rights, and I worry that most voters won't care because the whole idea of sex crimes is so viscerally offensive that any initiative portrayed as for the purpose of catching those slimeballs will get support. :(

[Linkmeister]

Great minds and all that. I read them this morning, and concluded I'm voting No on all of them.

Felony charges should continue to have to go through the grand jury process, not just be an administrative charge.

Confidential Communications as described would abrogate the right to confront your accuser.

Sex Offender Registry is fine, but not publicly available to the world via the internet. If you've got a legitimate concern, go look it up at a government office.

Sexual Assault Crimes seems to be aiming at too broad a categorization. It might end up with something like California's "three strikes" law, and that's been so mishandled that people get thrown in jail for twenty years for theft of DVDs.

[Glen Miyashiro]

Who introduced these bills in the Legislature, anyway? The copies in the database at the Leg web site have the "Introduced By" line left blank.

[Konaguy]

"# HB2789 (HD1/SD1): Sexual Assault Crimes - Shall the Constitution of the State of Hawaii be amended to provide that the legislature may define what behavior constitutes a continuing course of conduct in sexual assault crimes?"

I'm leaning to voting No on this one.The reason why is listed here
http://www.capitol.hawaii.gov/sessioncurrent/ConAm/hb2789.pdf

"# SB2843 (SD1/HD2): Sex Offender Registry Information - Shall the Constitution of the State of Hawaii be amended to provide that the public has a right of access to registration information regarding persons convicted of certain offenses against children and persons convicted of certain sexual offenses..."

You cut out the more important part. Currently to put any sex offender
on the public registry online requires a court hearing. This amendment would
eliminate that requirement.

Currently it will take years to have individual hearings on each of 1900 sex offenders statewide to put them on the online registry
http://pahoehoe.ehawaii.gov/sexoff/


"# SB2846 (SD1/HD2): Confidential Communications Between Crime Victims and Counselor or Health Professionals - Shall the Constitution of the State of Hawaii be amended to permit the legislature to provide by law for the inadmissibility of privileged confidential communications between an alleged crime victim and the alleged crime victim’s physician, psychologist, counselor or licensed mental health professional?"

I am learning towards voting yes to this amendment.

"# SB2851 (SD1): Felony Information Charging - Shall Hawaii’s constitutional provision regarding the initiation of criminal charges be amended to permit criminal charges for felonies to be initiated by a legal prosecuting officer through the filing of a signed, written information setting forth the charge in accordance with procedures and conditions to be provided by the state legislature."

Changing this would eliminate putting witnesses in harms way or taking the police away from more critical needs in the community. Plus it would save taxpayers money in eliminating the need for a grand jury hearing.

[Glen Miyashiro]

"# SB2851 (SD1): Felony Information Charging - Shall Hawaii’s constitutional provision regarding the initiation of criminal charges be amended to permit criminal charges for felonies to be initiated by a legal prosecuting officer through the filing of a signed, written information setting forth the charge in accordance with procedures and conditions to be provided by the state legislature."

Changing this would eliminate putting witnesses in harms way or taking the police away from more critical needs in the community. Plus it would save taxpayers money in eliminating the need for a grand jury hearing.
Putting witnesses in harm's way? Not if the courtroom is adequately controlled, as it is supposed to be.

Taking police away from more critical needs? Saving taxpayers money? Sounds like you put a pretty low value on giving the accused a fair trial. Nope, if there is a need for officers on the street, and there is also a need for officers testifying in court, then the solution is to have a bigger police force so you can do both at the same time.

[pzarquon]

I'm so heartened to see responses on these already.

The "continuing course of conduct" one troubles me. It seems too open-ended a power to grant versus the supposed benefit. Requiring numbers and dates seems a burden to victims, especially children, but ultimately, the system as it is works well -- a jury deliberates the accusations and defense to each on their relative merits, and must decide unanimously which crimes they feel were committed. A "close enough" clause in our constitution like this opens the door to all sorts of things, including the possibility of a conviction despite failing the "reasonable doubt" principle.

Sex Offender Registry is fine, but not publicly available to the world via the internet.I'm still undecided on this proposal. If someone's criminal history is indeed a matter of public record, and freely available to someone who walks into a records office downtown, why shouldn't it be online as well? I have the same question about police logs, which the public can review but the police won't publish. (I'm sure there's a reason, I'm just not familiar with it.)

As Aaron notes, the separate hearing for online publication is key. In the long run, and IMHO, the difference between "public access on site" and "public access online" should be minimal. What matters is the "public access" part.

I used the online registry during its brief time online. I was stunned at the number of folks listed in my neighborhood. Still, skepticism was required, as not all people branded as "sex offenders" are imminent threats to a community. The difference between a 16-year-old girl who slept with a 14-year-old boy yet branded for life and a serial rapist or pedophile is probably why the hearing requirement was put in place.

Numbers three and four are, in a way, related. If you believe in the accused's right to confront/face his or her accuser, then "information charging" should be just as troublesome as doctor-patient privilege. So I'm stuck there, because I disagree with "information charging," but I value the principle doctor-patient (and lawyer-client) privilege.

While the accused's rights are important, so is not (re-)victimizing the (alleged) victim. I feel the built in protection of the "innocent until proven guilty" model more than compensates for the fact that a suspect is unable to force a victim's doctor or counselor to talk about things discussed or determined in private.

Besides, if a doctor or counselor can be compelled to testify against his or her patient or client... how will they be able to do their job effectively? Trust is paramount to their profession.

So where does that leave me right now? No on #1 and #4, yes on #2 and #3.

Fortunately, the standard to change the constitution is high, and blank votes count as "no" votes. Supporters of any of these amendments will need to make a very strong case to motivate the populace to make a choice at all, let alone one in their favor. Even if I want one or two passed, I think this is as it should be.

[Glen Miyashiro]

I used the online registry during its brief time online. I was stunned at the number of folks listed in my neighborhood. Still, skepticism was required, as not all people branded as "sex offenders" are imminent threats to a community. The difference between a 16-year-old girl who slept with a 14-year-old boy yet branded for life and a serial rapist or pedophile is probably why the hearing requirement was put in place.
Was information on the exact nature of the crime available, or did the entry simply indicate the statutory citation for the violation? As you alluded, violation of a particular law can encompass a wide range of possible circumstances. In my opinion, if the detailed facts of each crime are made public, then anyone accessing the registry could then clearly see the difference between that 16-year-old girl and that serial pedophile, and in that case I'd have no problem with putting it all on line.

[Konaguy]

HB2789 -No
SB2843 -Undecided [Even if it fails to pass the state can continue to
put sex offenders on the online registry IF the court hearing proves
favorable. This amendment as far as I can see is just a way to remove
the court hearings requirement.
SB2846 (SD1/HD2) -Yes
SB2851 (SD1) -Yes

[Konaguy]

Putting witnesses in harm's way? Not if the courtroom is adequately controlled, as it is supposed to be.

Taking police away from more critical needs? Saving taxpayers money? Sounds like you put a pretty low value on giving the accused a fair trial. Nope, if there is a need for officers on the street, and there is also a need for officers testifying in court, then the solution is to have a bigger police force so you can do both at the same time.

http://www.capitol.hawaii.gov/sessioncurrent/ConAm/sb2851.pdf

I guess you didn't read the Pro's for this amendment.It pretty much
summs up why I'll be voting yes for information charging. Also
it sounds like you favor big government...yes we do need more police
but it is ludicrious to add more because just because a police officer
is stuck all day in a grand jury proceeding.

[pzarquon]

I guess you didn't read the Pro's for this amendment.That's quite an assumption, considering so far everyone here seems to have done their homework. Did you read the Con's for the amendment? That may sum up why someone else might vote "No."

Reading the prepackaged summaries is one thing. Learning about someone else's view and why they specifically hold that position is considerably more constructive, or at least entertaining.

I'm not for big government, but I'm sure as hell am not for law enforcement or prosecutors being able to "phone it in," either, as it were. Justice under our constitution is hard work, but it should be. If there aren't enough cops on the street, there are more reasonable ways to fix it than changing our judicial system.

Was information on the exact nature of the crime available, or did the entry simply indicate the statutory citation for the violation?I'm pretty sure it was just the statutory citation. I could do the math from the date of the offense and the individual's birthdate to see if we're looking at something that happened when they were 30 or 14, but even that wasn't enough to gauge the relative seriousness of the crime.

[Glen Miyashiro]

I guess you didn't read the Pro's for this amendment.It pretty much summs up why I'll be voting yes for information charging. Also it sounds like you favor big government...yes we do need more police but it is ludicrious to add more because just because a police officer is stuck all day in a grand jury proceeding.
Aaron, I guess I did read them. I read them, both the pros and the cons, a while ago when the constitutional amendments flyer showed up in my mailbox. I didn't agree then and I don't agree now.

I favor government of an appropriate size for the level of service that we the public expect of it. If you want a lot of government services, then guess what? You need a lot of government.

And I don't think it's ludicrous for a police officer to execute the law, which is what grand jury proceedings are all about. If grand jury proceedings take too much time and are rescheduled too often, then you have to look at other issues such as the tangled logistics mess in scheduling that the courts have to deal with (another rant altogether).

[Konaguy]

I favor government of an appropriate size for the level of service that we the public expect of it. If you want a lot of government services, then guess what? You need a lot of government.


Thats where we do not agree. I don't want my tax dollars wasted
on a police officer that is stuck in court for hours at end for a grand jury
proceeding. We need to streamline government, not expand it.

[Glen Miyashiro]

Thats where we do not agree. I don't want my tax dollars wasted on a police officer that is stuck in court for hours at end for a grand jury proceeding. We need to streamline government not expand it.
Yup, we definitely disagree. You think grand juries are a waste of a cop's time; I don't. I do agree that where possible government should be streamlined, but not at the expense of quality service.

Of course, the reverse of my initial statement is also true: if you don't want a lot of government, then you have to be willing to accept a lower level of government services. I think that's the angle you're coming from. And that's legitimate too; occasionally I think government does way more, and spends way more, than it should. [cough] Honolulu neighborhood boards [cough] vision teams [cough cough]

[pzarquon]

Well, the "Con" argument makes a pretty good case against this change saving any money, or time. People involved or invoked in the "direct file" can still be called as witnesses during the trial -- court appearances will not neccessarily be reduced. Witnesses and officers unable to be present can already still be heard via hearsay testimony. And "direct file" may reduce early pleas and increase pre-trial motions and full trials -- i.e., it could actually be more expensive and time consuming:"It is important to note that in large states with the highest number of cases have not chosen to use 'direct file' because they determined that it would not save money or time and would not benefit their justice systems."
In the mean time, we give up a fundamental element of our system's checks-and-balances, the opportunity to question witnesses or clarify information before proceeding.

Apart from the relief offered citizen witnesses (who, if they're willing to be a party to the prosecution, should step up and participate fully, IMHO), the only "benefit" of this is to make life easier for prosecutors and maybe the police. And that's nowhere near a fair trade off.

[Mocha]

Thank you for all the informative pros & cons for the amendments. I always wonder the how/why of the amendments...then you need a new amendment cuz people didn't really want the previous ones...or decided that they weren't working. :confused:

[charles]

I work for Honolulu Prosecutor Peter Carlisle so I am obviously biased in this issue, but I am happy to see that there is a discussion out here. Here are some "pro" links that I believe explains our stance to vote "Yes" on all four amendments if you haven't already seen them.

The first is from the Attorney General's website:

http://hawaii.gov/ag/amendments_2004.htm

The second is a piece from the Honolulu Advertiser sunday paper that was co-authored by Former Governor Ben Cayetano's Attorney General Margery Bronster and Current Attorney General Mark Bennett. It's also notable that former Attorney General Earl Anzai supported Information Charging in the last election where it was passed before it was overturned on a technicality by the Supreme Court.

http://the.honoluluadvertiser.com/article/2004/Oct/24/op/op05p.html

[Linkmeister]

Charles, welcome, and thanks for admitting your bias up front.

I'll read the arguments for information charging, but it's gonna be a hard sell. ;)

[pzarquon]

Hey, Charles, thanks for stopping in. Of course prosecutors and law enforcement back a lot of these measures... and it's good to see there's consensus on that side of the aisle.

But a lot of these proposals are opposed by other groups (whose causes - if not always whose methods - I support). And I see now the Honolulu Advertiser has recommended "No" votes across the board (http://the.honoluluadvertiser.com/article/2004/Oct/24/op/op01p.html). I guess with my two-to-two votes (mailed Saturday), I'm being a moderate. :)

I think there's a good case to be made on both sides of each of these questions. Like you, above all, I'm glad there's discussion. I hate to think of important issues like these being dismissed or ignored just because they're not simple black-and-white calls.

[charles]

I agree, and what's very important to note, and I think it was mentioned before, is that a "Blank" vote is a "No" vote. Some voters may mistakingly think they can abstain on the issue, but in fact they are taking a stand, whether intentionally or not, by leaving it blank.

It is also important to note that for Honolulu residents, there are four City Charter amendments that shouldn't be confused with the constitutional amendments.

[Konaguy]

There was a article in the Hilo Tribune about the constitutional
amendment relating to sex offenders.

Here is the link [It requires registration]
http://www.hawaiitribune-herald.com/articles/2004/10/26/local_news/local02.txt

Sexual predator information

Tuesday, October 26, 2004 6:46 AM HST

Should the state constitution be amended to release data on offenders?

By CHRIS LOOS
Tribune-Herald staff writer
Editor's note: This is the second of four articles on the four constitutional amendments that will be put before Hawaii voters in the Nov. 2 general election.

Hawaii voters must decide whether the fear of living next door to a sexual predator warrants amending the Hawaii Constitution.

The proposed amendment would give state officials the power to release personal information about convicted sex offenders without a court hearing.

The way it works now, the convicted sex offender has the right to go to court to try to persuade a judge that he is no longer a danger to society. If the judge disagrees, his name, photo, address and car license plates go on a state Web site.


I think it was balanced article.It has made me think about voting "no" on the amendment

[Glen Miyashiro]

Slate.com (http://slate.msn.com/id/2110110/) has taken notice of the success of our four recently passed constitutional amendments.

[pzarquon]

I like the headline. "Blue Hawaii: When liberal states get tough on crime."Despite the campaigning of a distinctly un-Hawaiian Dick Cheney, Hawaii remained a solidly blue state this past election, voting for John Kerry 55-45 and returning its incumbent Democratic senator to the Senate by a 76-21 margin. At the same time, those same blue Hawaiians did something profoundly scary: They ratified each of four constitutional amendments pushed by prosecutors that relate to important criminal justice issues. And that is a trend that should be sounding alarm bells at ACLU offices across the country. I have to admit, I was surprised all four passed, despite the complexity of the issues involved, and the high "blanks count as no votes" standard. (And the Advertiser took a stand against the set!) I think the people basically got it into their heads that prosecutors wanted the changes, and the people were in a pro-prosecutor mood.

As we return to this topic, it's worth noting that one of the four amendments is being challenged (http://the.honoluluadvertiser.com/article/2004/Nov/23/ln/ln12p.html). It's not the one that was a "rerun" (information charging) because it was successful challenged last time... but similarly, the complaint here is largely procedural.