Pubdate: Mon, 05 Jan 2004 Source: Honolulu Star-Bulletin (HI) Copyright: 2004 Honolulu Star-Bulletin Contact: http://www.starbulletin.com/ Details: http://www.mapinc.org/media/196 DRUG-OFFENDER LAW NEEDS CLARIFICATION The state Supreme Court has ruled that a first-time drug offender may be denied probation if he has record of other crimes. FIRST-TIME drug offenders are to be put on probation and enrolled in drug-treatment programs, according to a law enacted by the 2002 Hawaii Legislature. The state Supreme Court has misread the new law, denying probation to defendants convicted of drug offenses for the first time but who had been convicted of other nonviolent crimes. Legislators now need to amend the law to clarify their intention. State House Judiciary Chairman Eric Hamakawa says legislators two years ago intended for first-time drug offenders to be eligible for probation and drug treatment, even if they previously had committed nonviolent felonies. The Legislature should revise the law to make that intention abundantly clear. The new law seems plain enough. It requires that first-time drug offenders, i.e. a person convicted for the first time for any offense under statutes dealing with illegal drug possession, be given probation and drug treatment, unless a conviction in the previous five years had been for a violent felony. However, Circuit Judge Marie Milks applied statutes dealing with repeat offenders in sentencing Faye Smith to a prison term of six months to five years for a first-time conviction of a drug offense. Smith, who pleaded guilty to the drug charge, had prior convictions for forgery and theft but she had not been convicted of a drug offense or a violent felony. Legislators should consider injecting some flexibility to judges in sentencing first-time drug offenders. Smith reasonably may have deserved to be denied probation even though she was a first-time drug offender. Milks cited Smith's long-term drug use and failed attempts at drug treatment. What some lawyers have regarded as contradictory laws -- affecting repeat offenders and first-time drug offenders -- has resulted in prosecutors' appeal of seven cases after judges granted probation to repeat offenders. Public defenders have appealed three cases in which first-time drug offenders had been denied probation. - --- MAP posted-by: Derek