 Welcome back. This is our 22nd show in a series of shows entitled Rehabilitation Coming Soon, where we have been discussing the mass incarceration practices of the United States and the effect of those practices on the state of Hawaii. My name is Aaron Wills. I am a William S. Richardson Law School graduate and a research consultant for Abigail Quantum-Nicola Research Center, and I'm also a paralegal for retired Judge Mike Pounds for communication practice. Over the past four months, we have heard from numerous professionals in the community who are willing to discuss the criminal justice system and see the problem of mass incarceration from different perspectives. Today we'd like to hear the perspective from retired attorney Bob Merce. About five years ago, Bob Merce started representing terminally ill inmates seeking compassionate release. And last year, Bob helped organize a working group from the Department of Public Safety, the judiciary and the legislature that traveled to Norway to learn about their prison system in Norway. So, welcome, Bob, to the show, and thank you for coming on. Glad to be here. Thank you. All right, Bob. Well, we're going to jump right into our discussion. We have a lot to talk about today, and so I think, you know, usually when we talk about jails and we talk about prisons, you know, people get kind of confused because they kind of think that's the same word. Right. You know, they're like, oh, that's the same thing, right? But there's a big difference between jails and prisons. There sure is. Okay, so we're going to ask the expert here. Can you explain to us what is the difference between a jail and a prison and kind of explain maybe like it was one more expensive or kind of, you know, along the money lines of which one's going to cost the state more money to run? Okay, there is a huge difference. And even though people, as you say, often use the terms interchangeably, and actually I find myself slipping sometimes and not speaking very precisely, but they are very different. And here is the main difference. A jail is a very unique entity. Jails were typically designed years and years and years ago to hold people who had been arrested and could not be released because they either were a flight risk or were too dangerous to release. And initially those were the only two categories of people who were in the jails, but over time it expanded and we didn't let a lot of people out. So basically the jails hold people who have been arrested but have not gone to trial but have been arrested and are being held either because they can't make bail or because the court has determined that they're not entitled to bail. And that, those people, we call them pretrial detainees, comprise a large number of the people who are in our jail here in Hawaii. We also have people who are in the jail because they have been sentenced to one year or less of incarceration. So we have those people who committed misdemeanors, low-level offenses. If your sentence is less than a year, they don't put you in prison. You serve your time in jail. And so you have those low-level offenders along with the pretrial detainees. And then you have prisoners who have maybe been in for a longer period of time that are serving their last year of prison and they bring those people out because it's, you know, less restrictive confinement. And so we have some of those people as well. And you have people who are being held because they're on technical violations for violating probation or parole. So would it be technically right to say that, you know, a jail is more for short terms then? Absolutely, short term, one year or less. Whereas a prison, once you are taken from the jail, let's say you've made bail, but you go to trial, say you're out of jail, but you go to trial, you're convicted, then you will end up in the prison system. But if you are let out of jail on bail on a low-level offense, you go to trial, your sentence to 30 days, you would serve that in the jail because it's, again, short term. Prisoners are all serving one year or more up to life. Okay, so if you do have, like, a three-year sentence and you would be going to prison to serve that. Absolutely, yes. Okay. So you have to think differently about the two facilities. Right. One is very transient, that's the jail. Right. I mean, and usually the jails are located very close to the courthouses because people are going back and forth, either they're going to be arraigned or they're going to have, you know, a pretrial hearing of some kind. So they're going back and forth between the jail and your population. Some people bail out, you know, they get arrested, they end up in jail and, you know, within four or five hours a relative comes down and pays a $500 bail and they're out. Right. So anywhere from a couple of hours to a year. Right. Very transient. And, you know, there are statistical outliers. We've talked about this in other shows where there are those people who can't afford bail and it affects their representation from public defender standpoint and because they have to stay in the entire time. So there could be some people who actually have to stay there longer than a year, maybe waiting trial, having continuations and stuff like that. Which is a big problem for everybody. Right. Because as you say, those people who are pretrial detainees who cannot make bail and have to stay in, sometimes that can be a very long time. Yes. Especially if it's a big, a high charge homicide. And let's say you have a public defender. You may have to hire expert witnesses, do forensic examinations. It can be, you know, you can wait a long time to get to trial and we have to pay for those people to be in jail all that time. It becomes very expensive. And so let's talk, you know, Jack Tanaki kind of brought this up a little bit last time and he called it at, I want to use the right word here. I don't think he said disaster level, but he said it was. Crisis level. Crisis level. He said that the OCCC, the current situation that it's in right now, giving, you know, the infrastructure and the overcrowding, it's at the crisis level. What are some of the things that are going wrong at OCCC right now? Okay. Well, OCCC is, I agree it's in a state of crisis. Okay. But I would say the whole, the same thing about all of our prisons is in a state of crisis. Right. But for OCCC, it's just, it's overcrowded. Right. Which is, you know, probably violating the constitutional rights of many of the people who are in there. It's old, it's decrepit, it is falling apart. If you go there, I took a tour recently with some members of the House Public Safety Committee and the Director of Public Safety took us into one area which he calls the Thunderdome. I mean, it's just this mass of men, you know, and the noise level is incredible and they're all just sort of wandering around in these cages. And, you know, it really is a complete, it's a horrible situation and there's over a thousand people there all crowded together, sometimes sleeping three in a cell and when they sleep three in a cell, the cells are only not built for three people. So one of them is going to be, you know, it's going to end up with his head right at the base of the toilet. I mean, it's a horrible, horrible situation. So, I mean, there's no question that the jail is a mess because we've ignored it for a couple generations. And, you know, I know a lot of the references made to this Thunderdome thing. You know, I have a friend that works in there and the reference of Thunderdome comes from the Mad Max movie. I don't know if you've ever seen, a lot of people haven't seen this movie. But the Thunderdome actually, and another reason why they use that term because that's where all the fights happen. And that's where all the discipline and that's where all the guards come in and if something's going to happen, it happens right there in that area. And it's not people like me who are using the term, I got it from the director of the Department of Public Safety. That's what they consider the place to be. And, you know, to their credit, they recognize that this whole situation is not appropriate. That's why they're willing to use those kind of terms to try to make the point to the rest of us that we've got to do something about that jail. But the something is a big question. Yes, so what are we going to do? Well, let's talk a little bit about our Hawaii prison population. What currently, how many prisoners do we have? What's the current statistics on that? Okay, in our prison population now, remember these are one year or more people. And most of them, you know, are not one year. Most of them are two, three, five, 10, 20 life. Right. So these are pretty long-term people. We have five, right. I'm part of a task force that the legislature set up during the last session to look into ways to improve our correctional system. And the task force said, you know, we really need to get on the same page with regard to statistics. So I had the good fortune to sit down with the statistician in the public safety and to go over some of the statistics. And so we have it now, I think, a very reliable set of statistics that we can all share and all use together. And the number for our prisoners at the present time is 5,806 on the day that I got the print out. Now that number fluctuates because people are coming in the prison every day and they're leaving every day. So but it's, you know, it's a little bit lower than it has been in the past. Historically, we've used the number 6,000 because it's hovered around 6,000 for many years. It's tapered off a little bit to about 5,800 now, which is good. But you know, here's the problem, I think. You look at the number of 5,800 prisoners and it means nothing to anybody. So how do we assess that number? How do we make sense of it? How do we breathe some life into it and try to understand it? I think one way is to compare it to the prison population of somewhere else. And I think I did some research on that and the country that I found that was closest to having the same number of prisoners as Hawaii is Sweden. The difference between us and them is that we have roughly the same number of prisoners, but they have over five times the population that we do. Nine million people in Sweden. Yes, we have 5,800. Sweden has 5,200, so they have a couple hundred less prisoners than we do, but their prison population is smaller than ours, but we have six times as many people as they do. They have a population of about 9.8 million people. We have 1.4 million people. So that tells you something right off the bat. And there's a lot of studies on the reason why. And again, this is the United States mass incarceration practices. You go down to three strike laws, mandatory minimums. All of these type of laws that are on the books that have contributed to why our incarceration rate is so high and why we are compared. I mean, if you look at it, we might be one of the smallest states and we have, what, 400 or three to 400 more prisoners than a Sweden, a country of 90 million. Yeah, I mean, that should be a statistic that would motivate, I would hope, the people of Hawaii to say, what's wrong? We got something wrong, but let's take the next step, not just say we have something wrong, let's do something about it. Because that is a terrible statistic and a shameful statistic in my view. Another way of looking at that 5,800 though is that that is today and it's a snapshot in time that captures where we are at the moment. But it wasn't always that way. If we look back in time from 1997 to the present time, Hawaii's prison population has increased 1,359 percent. And 1977 was not that long ago. Back in 1997, we had 398 prisoners in our total prison population, 398. And now we have 5,800. That's an increase of, let's say, 1,359 percent. And if you look at it in terms of incarceration rate, it's an increase of 887 percent. So again, we hit a point in time right around 1997, 1980, where we decided we're going to put more people in prison, we're going to keep them longer. And this is what has happened. It's just ballooned out of, you know, it's just irrational at this point. That is very interesting and it's unfortunate that we have reached these levels, especially, I mean, you have to talk about an increase like that. That's just astronomical to have a 1,359 percent increase in your prison population for one state. Yeah, for one state. Well, when we come back, we will continue talking and we'll kind of move it into the native Hawaiian prison population. And we'll continue to talk with Bob Merse. My name is Aaron Wills, and this is Rehabilitation Coming Soon. Aloha. My name is John Wahee, and I actually had a small part to do with what's happening today, served actually in public office. But if you don't already know that, here's a chance to learn more about what's happening in our state by joining me for a talk story with John Wahee every other Monday. Thank you, and I look forward to your seeing us in the future. Aloha, I'm Kaui Lucas, host of Hawaii Is My Mainland every Friday here on Think Tech Hawaii. I also have a blog of the same name at kauilukas.com where you can see all of my past shows. Join me this Friday and every Friday at 3 p.m. Aloha. Welcome back. I'm Aaron Wills. This is Rehabilitation Coming Soon, and we are sitting here with our guest, Bob Merse. Well, Bob, let's just talk a little bit about Hawaii's incarceration rate. What do you know about the incarceration rate and where are we at as far as Hawaii? Well, incarceration rate, to explain it first, is we talked about our prison population compared to Sweden, but Sweden's got six times as many people as we do, and so that makes comparisons with other jurisdictions very difficult, because we don't have the same number of prisoners as they do. We don't have the same number of population. But what social scientists do is they develop something called the incarceration rate where they divide the prison population by the general population multiplied by 100,000, and that tells you how many prisoners we have in our society per 100,000 people in the general population. So if you make that calculation for Hawaii, we have about 405 prisoners for every 100,000... Oh, I forgot to turn my phone off. I apologize. No problem. We have 405 prisoners per 100,000 population. So we incarcerate 405 per 100,000, and we can compare that number very easily with other jurisdictions. And for example, France, our number is 405 in Hawaii. France, they incarcerate just 99 people per 100,000. Belgium, 98 people per 100,000 compared to our 405. Austria, 97. Switzerland, 84. Germany, 76. Norway, 70. And Sweden, just 53 people per 100,000 compared to our 405 per 100,000. So if you go anywhere you go in the world, whether you go to Europe or Asia or Africa, our incarceration rate is just sort of off the charts because we are locking up more of our people than almost any other place in the world. You know, and I just wanted to point out, you know, the statistic here reads that if Hawaii were a country, it would rank in the top 20 incarcerators in the world. We would. And that's true. But I also want to, you know, just make it very well-aware. This is a United States problem. And if you were to look at all the other states, they would rank above every other country as well. It would just be the states are the highest incarcerators in the world. I haven't been able to find what I consider to be really, really reliable statistics comparing the state of Hawaii to other states. But the statistics that I have seen all show that we do really well compared to other states. It's just that we do so badly compared to other countries and states like Louisiana are totally off the bell-shaped curve. Oh, yeah. They incarcerate more people than anybody in the world. And so when you go to Louisiana, think of it. I mean, this is the place. This is the highest incarceration rate of any jurisdiction in the entire world. Yeah. And that's why it's alarming, you know. And that's why when Hawaii itself, the state itself, is the top 20 incarcerator in the world if taken alone and we left out the other 49 states. You include them in the United States. The bigger picture it shows that state after state after state over incarcerating. And call yourself the aloha state if you want, but look at the reality. I mean, we could become the aloha state, but I have reservations about whether we should be calling ourselves that until we do something about the situation because it definitely says that we are not taking care of our people very well. Well, you know, a bigger issue is, you know, and, you know, keeping it with the aloha is the Native Hawaiian population. And I think that, you know, I've written a paper about this, about the over-incarceration of Native Hawaiians. You know, it has, there's been a task force on it led by Judge Brajak, who was on the show. And we've talked about this numerous times. So just can you explain, like, where we're at with the Native Hawaiian prison population in Hawaii? Well, unfortunately, Aaron, we're at the same place we've always been, and that is indeed the problem. As you say, in 2012, well, in 2010, the Office of Hawaiian Affairs had a big study that showed that Hawaiians were overrepresented in the criminal justice system at every stage of the criminal justice system. Right. And we set up a task, the legislature set up a task force to say what can we do about the problems, and the task force made a report, and basically, as far as I know, and as far as I've been able to tell, nobody's ever accepted a single one of the 38 or 40 recommendations that they have made, and that was not the first study. In the introduction to Judge Broderick's study, he says that Alaliki and others have done studies in the 90s and in the 80s and have come to the same conclusions and said we're over, Hawaiians are overrepresented, we need to do something about it, and it's been a whole generation or two that we haven't addressed that situation. So, today... You know, I was just going to say, what makes us a little bit more upsetting is that Judge Broderick and Oha spent all this money on this task force, and these guys did a really good job. They did. They went to work on this. They did. They came up with 38 recommendations. And one thing that Judge Broderick didn't want to talk about on air, but I'm free to say, because it's public knowledge. Pretty much zero of those recommendations have been implemented. Right. Absolutely zero. So, I'm wondering, I mean, is anybody listening? Why are these reports being done? I mean, you have professionals from the top of the curve. You're talking Judge Broderick was leading the Native Hawaiian task force on this. And, you know, they came up with recommendations and no one's listening. No one's listening. And no one's listening for decades and decades as these reports have come in and have consistently always said the same thing. You've got to do something about this, but we haven't. And so, in answer to your original question, the numbers are just the same now as they have been since, as far as I can remember, back in the 70s, when we only had 300 people in our criminal justice system, 34 percent, I mean, 38 percent of Hawai'i's prison population is Hawaiian or part Hawaiian. This has unchanged over decades. Hawai'i's in part Hawai'i's continue to be significantly overrepresented in the prison population. They are about, as I say, 38.4 percent of the prison population, only 26 percent of the general population. So that, again, should shame us into doing something about that situation because Hawai'i's indigenous people are incarcerated at a grossly higher rate than others. But we haven't done it. And when they kind of delve into this sticksity even further, you kind of see an overrepresentation of certain areas of where Hawai'i's are from, such as maybe Waianae. Waimanalo. Waimanalo, absolutely. Kalihi. Yes. When I came to Hawai'i in 1969, I worked for the poverty program. And we all knew that it was Kalihi and Waianae. And those are the programs that had progressive neighborhoods and all the programs. And those didn't really change the situation that much. But since those days in the 70s, we have essentially ignored the problem. But yeah, you're right. They come from Npapakalea. Yeah, Npapakalea. That's right. Okay, so let's talk about severity of offense. I think this is kind of interesting because as we all know, I mean, marijuana is starting to make the change now to be recreational. I think about five or six years will probably make the change. But we have a lot of people in jail for marijuana. Right. And so depending on severity of offense, if you're in jail for marijuana or if you're in jail for murder, what does statistics say about severity of offense for Hawai'i offenders? And here's the thing that we need to do. This is a stunning statistic. And the one I think that is the most important one that came to light from this sort of overview that we did, that only about one-quarter of the total jail and prison population combined, doesn't matter whether you're talking in jail or prison, one-quarter are charged with a class A or B felony or serving time for an A or B felony. Those are the high felonies. These are the serious crimes, the armed robberies, rapes and murders. Only one-fourth of the total jail and prison population are either accused or serving time for those. Three-quarters are in for a class C or lower felony, and class C felony can be something as much as just having a drug residue and a pipe. And so the question comes, again, this 5,800, let's just take the prison population, of this 5,800, three-quarters of them are accused and convicted and serving time for really low-level offenses. So do we really need to have all these big prisons? Do we really need to have all these people in the mainland? Do we really need to spend the million dollars, millions and millions of dollars for people who are committed misdemeanors? I mean, you could be arrested for a class C felony. If I'm a shoplifter and I'm reaching up to steal some sunglasses and you grab me like this and I put my hand on yours, oh, I committed a class C felony. I go away for, you know, over a year. Not because I stole, was going to steal something, but because I touched you. That can be a class C felony. You know, and I, Warden Patterson, you know, he came on the show and he kind of addressed this. This is more of a structural issue, I think, than anything else because what we have is a cookie-cutter system. Because of the 25% that we would consider what we'd say high-risk, okay? That 25%, we have to treat everybody like that. And so we have to make the prison systems in order to keep those 25% in line. And so he was saying, for example, you have murder, you know, a person who's done multiple murders. Well, you have to build a prison system to make sure that he's in his cell and everybody's safe. The unfortunate problem is that the other 75% who aren't like these people have to suffer because they have to do the same system. It's just a cookie-cutter system. And so I think that's the biggest problem, is that we don't have a separate system to deal with low-level offenders and put them in a different place than people we consider extremely high-risk murderers, and we mix them in together. It makes no sense. It doesn't make any sense. It doesn't. And other jurisdictions are starting to move away. And as we think about designing a jail or a new prison because they're talking about a new prison for Maui, we need to think about these things. And we need to design prisons that really reflect what we in the community want. I'll give you a very quick example. I was just reading about a new jail that they built in Denver. And as they were looking through their statistics, they said, jeez, we got a significant number of people who are coming in here. And they're charged with low-level offenses. They basically make a phone call to the relatives who come down and bail them out. They're in here, you know, five, six hours at most, maybe eight hours occasionally. But they're non-threatening, non-dangerous, low-level offenses, shoplifting, homelessness, you know, stuff like, you know, sleeping in the park. We can, you know, so what they did was when they designed their jail, they knew they were going to have this high level of people who could bail out. So they made it, the ground floor where you come in is like an airport waiting room. It has seats, it has televisions, it has a coffee machine. They got a couple of cells for, you know, somebody and maybe a problem. But basically, if you're arrested for these low-level offenses, you can come in there, you can sit there, you can read a book, you can watch television, you can wait for somebody to come down and bail you out for, you know, the bails are $500, $1,000. You get bailed out within eight hours and you never end up in the housing unit of the jail and they never have to, you know, we don't have to go through all these problems. So we just have to think this through and we have to look at what other places are doing some really, really great things. Well, you know, I couldn't agree with you more on everything you've said on the show and on previous shows we've had you on, Bob. So thank you for taking the time. Are we out of time already? Yeah, we're out of time already. So I just wanted to, you know, share it with everybody. Thank you. You know, as far as overcrowding is concerned, the data shows that five of Hawaii's nine correctional centers are overcapacity and three of the five are 150% or more overcapacity. So it's a huge problem and it has to be addressed. So thank you for watching the show. Join us next week for another show of Rehabilitation coming soon as we continue our discussion of the criminal justice system and the effect of mass incarceration on the state of Hawaii. My name is Aaron Wills and this is Bob Merse. Stay tuned. Coming up next is Sustainable Hawaii with Kirsten Turner.