Blue Hawaii
When liberal states get tough on crime.

By David Feige

When Bill Clinton famously signed the death warrant of a mentally retarded man named Ricky Ray Rector, he did so because he understood that like many criminal justice issues, the death penalty is the kind of notion that could make even dyed-in-the-wool blue-staters see red. From California's three-strikes laws to New York's Rockefeller drug laws, twisting criminal law into ever more draconian formulations has become a common trope of macho political posturing. And since most every politician understands that being on the left of a criminal justice issue is an easy way to render himself unelectable, almost every highly public measure, no matter how appalling, is approved with bipartisan support. Good thing we still have the courts.

In the criminal justice arena, to some extent, state and federal courts have actually done what they were designed to do-check and balance the excesses of the legislative and executive branches. And it is precisely because the court system has been the last bulwark against our rightward shift in criminal justice that the recent developments in Hawaii are so arresting.

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.

Ballot measures are nothing new, of course. In the last election, state voters were asked to weigh in on a total of 162 of them nationwide-from Alabama's constitutional amendment promoting shrimp and seafood (approved 63-37) to South Carolina's proposal to repeal the constitutional requirement that forced bars to pour drinks from minibottles (approved 59-41). But what was unusual about the Hawaiian proposals is that unlike most other states that occupied voters with bond issues, gay marriage, tort reform, or bear baiting, the Hawaiians moved criminal procedure decisively into the ballot-initiative arena: Every one of their four proposals involved criminal justice issues. More striking, three of these four amendments took direct aim at the Hawaii Supreme Court, seeking to reverse unpopular decisions not by redrafting legislation to comport with constitutional protections, but by eliminating the protections themselves.

Three earlier state supreme court rulings had set the stage for this unusual constitutional showdown. In one case, the Hawaii Supreme Court ruled that a defendant in a sexual abuse case should have been allowed to question his 13-year-old daughter about statements she made to her counselor recanting her story. In the second, the court ruled that sex offenders were entitled to hearings on whether their names and backgrounds should be made public. The third ruling held that in order to be convicted of a "continuing course of conduct" in a sexual assault case, the jury had to agree-unanimously-not only that three separate acts had occurred, but also upon which three specific acts actually occurred.

Each of these cases involved a core constitutional principle: The confidential communications case involves the right to confront and cross-examine witnesses; the sex offender registration case involves due process since Hawaii's sex offender registration statute failed to provide the defendant with an opportunity to argue that he shouldn't be included in the registry; and the "course of conduct" case was grounded in due process and the unanimity of jury verdicts. The court's interpretation of each of these clauses was not wildly radical, but it sure was unpopular, and it spawned a strong prosecutorial backlash.

The fourth constitutional amendment in Hawaii this election cycle also represents a dramatic shift in power from courts and citizens to prosecutors. Instead of a grand jury or a preliminary hearing in which a judge or jury is able to decide whether there is reasonable cause to believe a given defendant committed a felony, this new amendment will eventually permit what is known as "direct filing"-a procedure that gives prosecutors the ability to send a felony case to trial just by submitting a report to a judge. Police and prosecutors love direct filing since it offers them much greater control over charging decisions and hardly requires them to tip their hands about the substance of their case. Direct filing is like playing poker with someone who never has to show their cards-they play by merely declaring, every time a hand is called, whether they win or lose.

It should come as no surprise that in this time of ascendant attention to "morality," it is the rape and child-sex cases that represent the sharp edge of the constitution-piercing wedge. But it should be of tremendous concern that constitutional amendments designed to curtail fundamental rights are being passed in a fairly liberal state. As Hawaii's experience demonstrates, when the ease of state constitutional amendment is factored in, courts may well become too weak to police the prosecutors.

Taken together, Hawaii's four amendments are likely to radically change the administration of criminal justice on the islands and portend a potentially significant shift around the country, as police and prosecutors are again emboldened to attempt to curtail previously sacrosanct state constitutional protections. Sadly, if recent history has been any guide, those attempts are likely to succeed.

In a national climate in which simple statutory interpretation is routinely branded "activist," courts are already laboring under unprecedented political restraints. Ever since Republicans called for the impeachment of New York District Court Judge Harold Baer for reasonably and properly suppressing some cocaine evidence, even federal judges with life tenure have not been immune from the politicization of judging. This past election cycle hasn't helped. And when prosecutors and politicians begin to position the abolition of constitutional protections as "tough on crime" or "victim's rights" amendments, they are likely to win, leaving the judiciary more marginalized than ever. Between the demagoguery of constant court condemnation and a new cadre of prosecutors willing to take constitutional fights directly to the electorate, the core values the Founding Fathers fought for-and that judges have thus far helped to safeguard-could well wind up littered amid the constitutional detritus of shrimp shells and foiled bond issues.

Already the prosecutorial experience in Hawaii has spawned talk of further and even more frightening amendments. State Attorney General Mark Bennett is reportedly considering a proposal to try to amend the constitution to restore the so-called "walk and talk" searches that allowed plainclothes officers to wander up to people in airports, without any reasonable suspicion or profile, and attempt to gain evidence against them. The Hawaii Supreme Court prohibited that conduct in 1992. And in a recent near-miss, the legislature declined to place a measure on the ballot that would have allowed prosecutors to more freely use a defendant's criminal record at trial. But now that Hawaii's floodgates are open, that one may just be a matter of time. And once constitutional tinkering becomes the norm, well, who knows? That Fifth Amendment right against self-incrimination has always seemed a little bit overrated.

David Feige, a public defender in the Bronx and a Soros Media Justice Fellow, is the author of the book Indefensible, published in 2005.

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