Hawaii governor weighing whether to decriminalize emergency rule-breaking to a costly ticket

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HONOLULU (KHON2) — Penalizing emergency rule violators could be as easy as giving a parking ticket under a bill awaiting Hawaii Gov. David Ige.

But what happens to the tens of thousands of cases involving people who faced criminal charges in the pandemic?

Advocates say the measure would come in handy for any future emergency, while others say we should be getting tougher — not easier — on people willing to flout the rules.

Nearly 100,000 rule-violation counts were issued to about 50,000 people who were caught and ticketed — some arrested — for violating emergency rules since March 2020. It ranged from not wearing masks to violating quarantine or stay-at-home orders.

“They’re all misdemeanors,” said State Public Defender James Tabe, “and just to put in perspective, the year before, there were only 20,000 criminal petty misdemeanor cases. So you can see it just was out of control last year, or continues to be out of control.”

Lawmakers this session passed SB540 to reduce emergency order violations to a suggested $200 infraction, or a price set by the governor and counties, with no threat of a criminal record or going to jail.

“Similar to jaywalking, a seatbelt violation, a parking ticket,” Tabe explained, “so the process will be streamlined. The penalties will be just the fine. There’ll be no possibility of a criminal record or the possibility of going to jail.”

“We know a family of four, the mother and father just drove out to Roundtop because they were just tired of being cooped up, never got out the car,” Tabe said. “Both of them received citations. We had people just taking graduation photos back last May, it’s a very short time and they probably didn’t know the law exactly, because it was very confusing at that point. Is a beach okay? The water’s okay? The park’s okay? People didn’t know. Eighteen-year-old high -chool seniors were receiving citations. Someone I know had to tie his shoes, didn’t want to stay in the sidewalk, stepped into the park to tie his shoes, received a ticket. And we had the senior citizens went out fishing that they didn’t know any better and they were cited.”

KHON2 asked the governor on the day he dropped the mask mandate outdoors: Is he planning to sign the bill?

“We have started discussions with the counties,” Gov. David Ige said, “and I know the attorney general has been working with the courts in terms of the implementation of that measure, so they’ve at least had preliminary discussions about the fines and the level of fines.”

“I don’t think he should sign it. It appears to be nothing more than a money grab,” said Victor Bakke, a defense attorney who defended many against pandemic charges. “The purpose of this statute was to prevent people from spreading disease, and now they’re basically saying, well, now it’s just a fraction and just pay $200, and everything’s good. It doesn’t accomplish the purpose of the goal, which is to get people to comply with the law. So if you trivialize it too much, then there’s no respect for the law.”

Supporters of the measure say it will work and work better than dumping tens of thousands of criminal cases into an overburdened court system.

“Getting a citation, it’s effective, Tabe said. “There are no court appearances. It’s not going to shut down the court system.”

The bill is not retroactive to any of the thousands of pandemic cases still pending.

“The problem here is the prosecutors and the police and the governor are not on the same page, that’s the bottom line,” Bakke said. “And the legislature now is way behind the game. So this legislation is meaningless at this point. It won’t have any effect on the past cases at all those people will be treated under the law that existed at the time that they were cited.”

It could give prosecutors and defendants something to talk about, however.

“It should be an incentive to plea bargain all these cases down,” Tabe said, “but unfortunately, some people are so adamant that they know they’re not guilty and will still want to risk going to trial.”

Many who were charged over the past year were willful quarantine violators, people knowingly and sometimes repeatedly flouting the law and putting others at risk. The new law allows keeping the serious stuff as criminal offenses.

“It was all categorized the same offense at time, so hopefully this law will give the governor or the mayor’s — because this also applies to the mayor’s emergency orders — flexibility as to what type of offense they should be charged as,” Tabe said, “So the people that violated quarantine coming from the mainland, sure, they don’t need to get citations, you could actually charge them as a full misdemeanor, but it just gives the governor options.”

It is not just a tool for pandemics. It could be for any emergency

“If a hurricane comes in, we have to shut the islands down, we might have to have everyone stay home except for essential activities,” Tabe said. “Who knows what may happen? And God forbid another pandemic. At least they’ll have some flexibility where we won’t make ordinary citizens possible criminals.”

While many cases are still pending in court from the height of pandemic enforcement, prosecutors have tossed more than half the cases outright and tens of thousands more were dismissed.

“I’ve never seen a situation like this before in 30 years where the prosecutors were filing dismissals en masse,” Bakke said. “So you would get a notice that your client’s case was dismissed, but you couldn’t find it, and the reason why was because they had one defendant’s name, and then an attachment with about 30 or 40 other defendants.”

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