Justice system proposals merit legislators' consideration

THE ISSUE Prosecutors and police chiefs want the Legislature to change statutes regarding law enforcement.

HAWAII'S prosecutors and police chiefs are recommending that the Legislature make several changes aimed at improving law enforcement. Some of the proposals will be controversial, but the Law Enforcement Coalition's overall package is acceptable.

The most contentious issue will be whether to make Hawaii's law consistent with a 35-year-old federal statute and laws in most other states to utilize wiretaps to gather evidence against suspected drug dealers. Federal agencies can acquire warrants for electronic eavesdropping if they can show probable cause that a crime has been, is being or is about to be committed, and that the use of wiretaps will produce evidence of the crime.

Hawaii law requires that the privacy rights of a person targeted for a wiretap be represented by a "devil's advocate" in closed-door sessions with the judge who will decide whether to issue the warrant. As a result, wiretap warrants "are virtually never used" by state agencies, according to Attorney General Mark Bennett. He says no other state or jurisdiction has such a requirement.

The issue should not be confused with the controversy about the National Security Agency wiretapping American citizens without acquiring warrants for a secret surveillance court. Under the Hawaii proposal, local authorities still would be required to obtain warrants before planting wiretaps. Legislators should approve the change.

Most of the other proposals by the coalition also deserve approval, at least in part:

» Hawaii voters in the 2004 election approved a constitutional amendment allowing jurors to convict a defendant of continuous sexual assault during a specific time period even if they cannot agree on which acts count toward the minimum of three. The intent of the change was to allow for tougher sentencing in child sexual-assault crimes. In September, the state Supreme Court ruled that the Legislature had not followed correct procedures, so the amendment needs to be presented to voters again.

» The coalition proposed a mandatory sentence of 30 years to life for habitual violent felons. We oppose mandatory minimum sentences, but judges should have the discretion of imposing up to life imprisonment in such cases.

» Judges or juries would be allowed to use evidence of prior convictions of crimes involving dishonesty to evaluate a defendant's credibility, according to another proposal. Under present law, such evidence is disallowed unless the defense submits evidence about the defendant's character. Proponents must provide strong reasons for a change in the law.

» In overturning the manslaughter conviction of a Kaneohe woman for her newborn son's death resulting from her addiction to crystal methamphetamine, the Supreme Court ruled in November that a fetus is not a person under Hawaii's criminal code. The coalition proposes that a viable fetus be considered a person in cases of an assault of a pregnant woman by another person, such as the Scott Peterson case in California.