Hawaiʻi Weighs Shorter Probation, Lighter Punishment For Drugs

Hawaiʻi has the longest average probation terms in the country — more than double the national average — something lawmakers appear poised to change this year as part of a broader slate of revisions to the state’s criminal code.

State and national research has shown that a large percentage of people don’t reoffend while on probation, and most people who do commit another crime while under court-ordered supervision do so within the first year.

However, lengthy probation terms increase the likelihood that someone will be incarcerated not for criminal conduct but for minor probation violations like missing meetings with their probation officer or possessing drugs and failing to comply with treatment.

About every 10 years, stakeholders from across Hawaiʻi’s criminal justice system — from prosecutors and law enforcement to victims advocates and defense attorneys — take an extensive look at the state’s penal code, which lists criminal offenses and their punishments. Historically, it’s been an opportunity to tackle some of the thorniest issues and push reforms through the Legislature. The chair of the House Judiciary Committee said he’s optimistic the bill containing those changes will pass.

Some of the recommended changes this year are minor, like the elimination of fees for court-ordered ankle monitors and reducing how long prosecutors can go after people for parking tickets. Others, like the decrease in probation terms and a move to make possession of trace amounts of drugs a misdemeanor instead of a felony, will impact hundreds, if not thousands, of Hawaiʻi residents each year, according to the public defender’s office.

“We are starting to reevaluate some practices that have been in place for an incredibly long time,” Hayley Cheng, first deputy with the Office of the Public Defender, said. The changes are an opportunity “to better address some of the concerns and maybe outdated practices that we were operating under.”

Reducing Probation For Non-Violent Felonies

Judges handed out more than 17,000 probation orders in Hawaiʻi between July 2024 and June 2025.

About 45% of people on felony probation in Hawaiʻi in 2015 and 2016 didn’t get in any trouble while under supervision, according to a 2019 study by the Hawaiʻi Interagency Council for Intermediate Sanctions. The study didn’t differentiate between people who committed new offenses and those who only violated their probation terms.

Out of 1,301 felony probationers, 533 — about 41% — were arrested or violated their probation within the first year. Another 160 people were arrested or violated probation in their second year on probation. By the third year, that number dropped to just 14 people.

Extended periods of probation are a waste of resources that are “at least, unnecessary, at worst, harmful, when we’re spending time supervising people who are at low risk to commit any serious offense,” said David Muhammad, executive director of the National Institute for Criminal Justice Reform.

Longer probation terms can also create problems for people who are just trying to meet all the restrictive requirements.

People are required to attend regular meetings with their probation officer and can be subject to random searches of their house or car. They can also be prohibited from leaving the court’s jurisdiction without permission, required to follow a curfew and even be restricted from leaving their house. The stringent requirements can make it hard for people to hold down a job or secure housing, both of which are often requirements of their probation.

Violating the terms of their probation can land people in jail, even without breaking the law.

“The longer I’m being supervised, the more likely it is you’re going to catch me up in doing something that’s a violation of the terms of my supervision,” Muhammad said. “It might be minor, but because that means I’m subject to reincarceration, the harms are significant.”

Advocates for criminal justice reform say probation times can be shorter without increasing recidivism. For Muhammad, it’s about being “smart on crime.”

“We shift our focus to have greater engagement with the small number of people who are assessed as high, or even very high. I really think that that becomes a win-win,” he said. “Unnecessary supervision that often can become harmful can go away, and then we can improve public safety by increasing and focusing on the individuals that need it.”

For members of the Advisory Committee on Penal Code Review, it was jarring to learn that Hawaiʻi has longer probation terms than any other state, including more conservative states, without better results. That factored into the committee’s recommendation that probation for certain low-level, non-violent felonies be reduced from four to three years.

The change would not apply to people on probation for assault, terroristic threatening, kidnapping, extortion or arson.

Even if Senate Bill 2721 passes, three years would still be on the long side nationally for low-level, non-violent felonies, Muhammad said. Public defenders like Cheng would like to see it shorter.

But other members of the penal code review committee opposed decreasing the length of probation for certain crimes. The Attorney General’s office was concerned about some of the offenses that would now get a shorter stint, including witness intimidation and retaliation, aggravated harassment by stalking, cruelty to animals and promoting pornography of a minor. Members of the Crime Victim Compensation Commission also argued that reducing probation terms would shift the burden of collecting restitution from the courts to the crime victim after probation expires.

Because a majority of the committee approved the changes, lawmakers said they are inclined to follow the recommendations.

“I wanted to move it out, for the most part, unamended because I wanted it to be reflective of this collaborative process,” said Rep. David Tarnas, chair of the House Judiciary Committee. Tarnas introduced the House version of the bill and supports the Advisory Committee on Penal Code Review’s recommendations. “It’s a compromise. It’s not everything.”

Less Punishment, More Rehabilitation For Addiction

Another proposed change to the state’s penal code would bring Hawai‘i in line with a national movement to reduce penalties for drug possession. New York effectively dismantled its’70s-era drug laws in 2009 by ending lengthy mandatory minimum prison sentences and increasing eligibility for diversion to treatment. Some states — including California in 2014 and Connecticut in 2015 — reclassified most drug offenses as misdemeanors rather than felonies.

It’s part of a “realization that drugs are a public health issue and that punishing people severely for it might not get you what you want, which presumably is people to stop using drugs,” Marta Nelson, who leads the sentencing reform initiative at the Vera Institute of Justice, said.

Hawai‘i’s proposed law would make possession of small amounts of drugs a misdemeanor, rather than a felony. The court would be required to order a substance abuse assessment and could require someone to get treatment. Incarceration wouldn’t kick in until the third offense, and even then, it would be six months — far less than the five years under the current law.

The change is targeted at people who are arrested with trace amounts of drugs in a pipe or a baggie and nothing more. The impact, Cheng said, would be sweeping for both individuals and the broader criminal justice system.

Right now, Cheng estimates the courts are bogged down with hundreds of felony minor drug possession cases that involve people who are struggling with addiction but don’t have enough drugs to indicate they’re selling them. Because possession of any amount of drugs like meth and heroin is currently a felony, defendants are less likely to be released pre-trial and more likely to be incarcerated, increasing the costs to taxpayers. Felonies are handled in Circuit Court, where they take more time to resolve and involve more litigation compared to misdemeanors in District Court.

The decrease makes a big difference for the individual, too. Felony convictions can hurt someone’s ability to get a job or secure housing, and cost them the right to vote.

“It really is a stain on your lifetime criminal record that has consequences that last a lifetime, and that’s incredibly different from a misdemeanor,” Cheng said.

Nelson thinks decreasing low-level drug possession from a felony to a misdemeanor will allow Hawaiʻi to take a more public health-centered approach.

“Severity doesn’t do it,” she said. “What does do it, in the case of drugs, is available treatment options.”

The changes to the penal code proposed in SB 2721 don’t expand treatment options, a chronic issue when it comes to tackling drug use and addiction in the state.

Still, advocates for criminal justice reform see the recommended changes as an indication that Hawaiʻi is taking steps to build a criminal justice system that is more rooted in research on best practices, more rehabilitative and more responsive to the needs of vulnerable communities.

“I think we’re heading in the right direction so that we are working to create a criminal justice system that is fair and restorative, not just punitive,” Tarnas said.

“These are major paradigm shifts,” he added. “And they don’t come easy.”

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This story was originally published by Honolulu Civil Beat and distributed through a partnership with The Associated Press.