Special Report: Bias Against Native Hawaiians in Hawaii Criminal Justice System

By Ama Debrah, 2012 Summer Legal Program Intern

The disproportionate number of Native Hawaiians involved in Hawaii’s criminal justice system was at the heart of the Native Hawaiian Justice Task Force Summit, held on June 7-8 in the Hawaii State Capitol Auditorium.   The ACLU was there to find out more and consider how it could help to ensure that the government treats all individuals fairly and equally.

Spurred by an alarming report from the Office of Hawaiian Affairs (“OHA”) that found that the criminal justice system’s discriminatory treatment of Native Hawaiians is responsible for their disproportionate number in the criminal justice system, the task force sought to engage the community and learn more about the problem and possible solutions.[1]  Unfortunately, the criminal justice system’s discrimination against minorities and the resulting overrepresentation in the criminal justice system is not a new phenomenon.  Race and Ethnicity in America: Turning a Blind Eye to Injustice, a 2007 ACLU study, reported that minorities are “selectively targeted, and disproportionately arrested, charged, indicted and prosecuted.”[2]  Comparisons between Hawaii’s minority populations and those on the mainland demonstrate striking similarities.

  • A 2008 report from the Center on Juvenile and Criminal Justice found that at the end of 2005, 40% of all inmates in the nation were black even though blacks only comprised of about 12% the population.[3]  Similarly, in 2009, Native Hawaiians made up 36% of individuals admitted to prison and 39% of the incarcerated population while only representing 24% of Hawaii’s population.[4]
  • A 2012 report stated that black males on average receive sentences that are at least 10% longer than their white male counterparts[5].  Native Hawaiians also receive longer prison and probation sentences than most other ethnic groups.  On average, Native Hawaiians are incarcerated for 119 more days than Tongans, 73 more days than Native Americans, and 68 more days than Hispanics.[6]

Minority and Native Hawaiian youth are also disproportionately represented in the juvenile justice system.[7]  Again, this mirrors the experience of black and Native American youth on the mainland.  A 2012 state report released in Nebraska found that black and Native American youth are less likely to be referred to jail diversion programs, less likely to receive lesser penalties for their crimes, and more likely to be placed in juvenile detention facilities than whites, Asians, and Hispanics, although blacks and Native Americans only represent 8.2% of Nebraska’s youth population[8].

  • In 2008, Native Hawaiian youth made up 30% of arrests even though Native Hawaiians only represented 24% of the population[9].
  • Between 1995 and 1999, approximately 50.5% of all youth in juvenile facilities in Hawaii were of Native Hawaiian descent[10].
  • In 2003, Native Hawaiian youth had the highest rates of arrest in all offense categories[11].

Overrepresentation of Native Hawaiians in the criminal justice system may also be linked to education and the “school to prison pipeline.”  Youth entry into the criminal justice system often begins at school where zero tolerance policies and other institutional practices funnel kids directly into the criminal justice system, creating a school to prison pipeline that makes it difficult for youths to graduate.  Rather than isolation and punishment, the students who are most at risk of becoming part of the pipeline should receive additional educational and counseling services to divert them from further entering into the criminal justice system.  This conforms with the OHA report, which states that the social marginalization of Native Hawaiians in the educational system may contribute to students not graduating.[12]  Native Hawaiians reportedly complete high school at the same rates as other ethnicities based on statistics from 2008, but they are less likely to finish college.[13]  To keep students in school and out of prison, our educators must examine policies and practices to ensure that all youth are fully supported and able to reach their academic potential.

Native Hawaiians are very likely to experience long lasting harm from incarceration, in that it is likely to break that individual’s ties with his/her family, land, and community.[14]  Native Hawaiians in mainland facilities are particularly susceptible.  These breaks make it difficult for inmates to atone for their crimes and reintegrate into the communities.  Sharla Manley, an attorney with the Native Hawaiian Legal Corporation, spoke about how private, for-profit prisons in Arizona deny Hawaiian inmates the right to practice their Native Hawaiian religion, call them derogatory names and confiscate their religious objects.  Once released, Native Hawaiians, particularly those held in Arizona, have trouble re-integrating back into society due to their effective banishment, culturally inappropriate re-entry services and resulting difficulty finding employment and basic necessities like a driver’s license.[15]

Presenters at the summit asked the task force to implement institutional changes to equalize the treatment of Native Hawaiians in the justice system.  One step towards reducing the disparities would be to eliminate mandatory minimum sentences and maintain judicial discretion.  As OHA noted in its report, mandatory minimum sentences contribute to the disproportionate number of Hawaiians in the justice system because the crimes requiring mandatory minimum sentences are charged primarily to Native Hawaiians and people of color.[16]  For instance, Native Hawaiians are charged with a disproportionate number of methamphetamine offenses (which require mandatory minimum sentences) even though they reportedly use the drug at only slightly higher rates than other groups.[17]  The OHA report recommended integrating the use of objective screening tools in the pre-trial decision-making process, increasing parole eligibility, and finding alternatives to incarceration[18] – all of which were included in legislation and are currently waiting for the Governor’s signature to be enacted into law.

Community proposals included creating a joint Department of Health/Department of Public Safety drug treatment center with facilities on each island and creating a probationary period towards the end of inmates’ sentences to ensure that they receive rehabilitation programs before release.  Presenters also called for skills training programs within prisons, incentives for businesses to employ ex-prisoners, and more funding for diversion and reintegration programs. Like Ka Hale Pomaika’i, Ho’omau Ke Ola, and POHAKU, rehabilitation programs that attempt to re-integrate ex-prisoners back into society while incorporating Hawaiian values and customs.

Summit presenters agreed that solving the problem of Native Hawaiian overincarceration must include institutional changes and a statewide effort to reintegrate Hawaiian cultural values and traditions into our communities.   We at the ACLU of Hawaii look forward to being a part of the process.

To read OHA’s report, click here:

http://www.oha.org/index.php?option=com_content&task=category&sectionid=4&id=149&Itemid=358

To learn more about the ACLU’s actions to fight prison overpopulation and protect prisoner’s rights, click here:

http://www.aclu.org/prisoners-rights

To read Race & Ethnicity in America: Turning a Blind Eye to Justice:

http://www.aclu.org/human-rights/race-ethnicity-america-turning-blind-eye-injustice

To learn about the April 2012 Nebraskan study on the juvenile court system, click here:

http://journalstar.com/news/local/education/report-minority-youth-overrepresented-in-justice-system/article_bfe6de86-7a6b-5fd2-827c-dbd7b3767bf2.html

To read the Center on Juvenile and Criminal Justice report, click here:

http://www.cjcj.org/files/racial_disproportionality.pdf


[1] Office of Hawaiian Affairs, The Disparate Treatment of Native Hawaiians in the Criminal Justice System, 10, (2010).

[2] American Civil Liberties Union, Race & Ethnicity in America: Turning a Blind Eye to Injustice, 17, (2007)

[3] Brett E. Garland, Cassia Spohn, & Eric J. Wodahl, Racial Disproportionality in the American Prison Population: Using the Blumstein Method to Address the Critical Race and Justice Issue of the 21st Century, in Justice Policy Journal, vol. 5, no. 2, 4, (2008)

[4] OHA, Disparate Treatment of Native Hawaiians in Justice System,at 31, 95.

[5] Sonja B. Starr and M. Marit Rehavi, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences, in Program in Law & Economics Working Paper Series, no. 12-002, (2012).

[6] OHA, Disparate Treatment of Native Hawaiians, at 11.

[7] Id. at 68.

[8] Anne Hobbs, Elizabeth Neeley, Candance Behrens, & Timbre Wulf-Ludden, Nebraska State Disproportionate Minority Contact Assessment, 1-2, 20, (2012).

[9] OHA, Disparate Treatment of Native Hawaiians in Justice System, at 68.

[10] Id, at 68.

[11] Id, at 68.

[12] Id. at 65.

[13] Id. at 14.

[14] Id. at 13.

[15] Id. at 57, 61.

[16] Id. at 47.

[17] Id. at 14.

[18] Id. at 73-81.