 Friday, and welcome to a brand new episode of Perspectives on Global Justice, Think Tech Hawaii. This is your host Beatriz Cantelmo. Approximately 0.7% of the US population is behind bars. This makes the US the country that has the most incarcerated people of all developed countries in the world. All the states are shrinking their prison population. In part due to investments of community-based restorative programs, rather than continuing to use a punitive and outdated criminal justice system model. Where is Hawaii in this process? Data from the Department of Public Safety indicates that from 1978 to 2014, the Hawaiian prison population has increased 654%. Yes, you heard it right. Such increase is largely driven by heavier penalties from non-violent offenses. As of July of 2017, 999 of the people, up to 72% of the people in prison at O3C will classify at a community or minimum custody level. When we look at the total number of individuals who are under custody at O3C and their classification levels, these are the findings. Security would be 879 individuals, and minimum offenses would be 120 individuals, and that minimum security would be 394 individuals, and the maximum security, 3 individuals. One in three people incarcerated at O3C were homeless at the time of their arrest. That was a total of 465 people. And at the end of November of 2017, 14% of the population at O3C were women. 60% of O3C's population is between the ages of 80 and 39 years old. This is how much it costs to imprison a person in the state of Hawaii. $145 a day, or $4,350 per month, or $52,000 per year. The data from the Department of Public Safety, again, also indicates that the Hawaiians and part Hawaiians are significantly overrepresented in the prison population. 38% of the population are native Hawaiians and all part Hawaiians. And this number also represents 26% of the general Hawaiian population. So in all the rules, one in four native Hawaiians are in jail or prison. It is important to mention that one out of three incarcerated individuals at O3C were houseless at the time of their arrest. We have a long ways to go until we can become a state that transitions from a punitive model into a rehabilitative criminal justice system. And as criminal justice advocates plead for comprehensive review of Hawai'i states to justice system policies and practices from the Hawai'i state legislators and implement the much needed reforms that can address mass incarceration in the state of Hawai'i and overrepresentation of Native Hawaiian and Pacific Islander individuals in the Hawaiian criminal justice system under Hawai'i prison conditions, harsh mandatory minimum sentences, and discriminatory profiling by law enforcement in the state of Hawai'i, under unnecessary and excessive use of force and brutality used by law enforcement in the state of Hawai'i, under law enforcement corruption and misconduct issues in the state of Hawai'i, and racial and economic disparities that exist at every stage of the Hawaiian criminal justice system. In that, we also need to deal with Hawaiian school to prison pipeline educational and disciplinary policies to send our youth to our criminal justice system and severe solitary confinement use in the state of Hawai'i and overcharging and over sentencing disparities impacting Native Hawaiian and Pacific Islanders. Well, on that note, today we are very gifted with the presence of a very special guest, Atani Keriwacho. He is a criminal defense attorney and for the past 28 years, he has his practice in the state of Hawai'i for 12. And we are very fortunate to have you here, so thank you so much. Thank you Beatrice for inviting me to be here. Absolutely. So, well, not very gory details and data, but I wanted to make sure that we had someone of your calibre, not only in terms of criminal defense law experience, but also somebody who has been in the front line for almost three decades, you know, doing this walk. So to all of you who do not know about you, just tell us a little bit about your background. Where do you come from? Where did you grow up and how did you decide to become an attorney? Well, briefly, my dad was in the military and I lived all over the United States and actually I was a little boy here in Oahu and as I grew up, Hawai'i was always part of our life. And when my dad was stationed in Kansas, we had Hawaiian nights and food. So how does that work in Kansas and Hawaiian nights? Well, I was very interested in my dad. We put up the tiki lamps and got pineapples and make meals. It was really a lot of fun as a kid, but that always stayed with me. My mom always used to say, my lay will return. And so after I actually was a newspaper reporter after college for about six years. So what did you do as a reporter? Like, did you focus on a specific area? Well, I did a lot of criminal and political news as a newspaper reporter, both in Oregon and in Alaska. But at my heart, I'd always been interested in doing criminal defense because of the constitutional issues involved and also with helping people out. And so I decided to go to law school and left journalism and then have been happy ever since doing that. I practiced in Seattle King County. Right. So how long were you in King County? Did you start with private practice or did you start as a public defender? I actually was a public defender in Seattle King County with the associate counsel for the accused and did that for about 17 years. And then I decided to make the spring and come back to come to Hawaii. I'd been coming back and forth quite some time by then and set up my own private practice on Maui. And so I've been in private practice in Hawaii for the last almost 12 years. Right. So you had almost 17 years under your belt as a criminal defense attorney that gave you a very strong foundation to actually... It was like, I'm going to do this transition and do private practice. And do you do private practice or do you take court-appointed cases? Well, I actually do both. Most of my practice is in state court in Maui, but I do other islands as well and also practice in federal court. And in both places, I take court... When the judges asked me, I'm happy to help out with doing court-appointed cases as well in state case and also in federal court. So, okay. So you've been a public defender for almost 17 years. You definitely paid your dues in terms of providing that social justice backbone into the system and decide to do your private practice. What is it about your decision to continue to also serve those who otherwise would not have had representation without a court-appointed case? What is it that's appealing to you? Why do you still do it? Well, I think the most important role of a criminal defense attorney is keeping the system on us, keeping the cops in check, keeping prosecutors from overcharging stuff. And also just a genuine, I think most criminal defense attorneys that I know have a genuine concern, a passion in their heart to want to help people. And the people we help is often, I get questions all the time, how can you do that at work? But actually, a lot of the times that I'm helping people out is, it could be my neighbor, it could be an acquaintance, it could be a person down the street. Just happened to get in trouble, either because of substance abuse issues or poor choices. Right. So let's talk a little bit about that because I know that our criminal defense law is not for the faint of the heart. There's a lot of judgment and there's a lot of the assumption that people are guilty, is charged, which what do you find in your practice? You know, are people really guilty as charged? Are there issues with overcharging and over-sentencing? Not just in the state of Hawaii, but like, you know, what was your experience also as a criminal defense attorney in the county of Seattle? I would say, I think that most of my peers would agree with me in saying that, you know, the police make mistakes and then that gets sent up to the prosecutor's office and it takes a life of its own. And someone can be falsely accused or falsely charged. And it takes a while for the defense attorney to be able to get that other side of the story to the prosecutor's office and see if we can't get the charges dismissed or the charges reduced. Most cases, there's something that happened. It just may not be what the police said or what the prosecutors think it is. And so a lot of the work that a criminal defense attorney is actually involved in negotiating the case with the prosecutors, seeing if we can, and then talking and helping the client out, seeing what the client wants, what they hope will happen in their case and then hopefully getting them either out of jail or back home and with their family with a minimum of consequences that they have to face. So let's talk a little bit about that because I think that a lot of people have this misconception that a criminal defense attorney will try to get somebody get out of jail, free card or that people don't have to be accountable. And just a couple of minutes ago, you were mentioning big social issues that we deal in any state in any society in the world such as mental health and substance abuse issues. And so when you talk about how do you really mitigate not only perhaps a crime that might have been allegedly a part of the case, but also making sure that there is some advocacy and considerations for that person to be in rehabilitative programs that will really not only address the core issues of what perhaps might have contributed to them to allegedly commit a crime in the first place, but also to be rehabilitated and be able to be integrated in society after they sub their sentence. Or if they go through a probationary period. OK. There's a lot of that. There's several ways of approaching that. Unfortunately in Hawaii, I would say close to over 90-some percent of my cases, there's a methamphetamine addiction, whether it's a property crime, a burglary, a theft, a car break-in. We see a lot of tourist cars being broken in and almost all of those cases, you know, they're driven by an addiction. Usually it's methamphetamine. We're starting to see heroin addiction in Hawaii now, in Oahu, and also in my federal cases. And it's starting to hit some of the outer islands. I had a couple of cases now coming into Maui, for example. One thing that Hawaii does very well at the state level is they have drug court programs in each of the islands. In fact, and they've just expanded it in Maui, for example. For example, if you have a fourth DUI or a third DUI, because the fourth DUI in the state of Hawaii is a felony and carries up to five years in state prison, but you can go to the drug court program. And for most people, it takes about 18 months to complete a drug court program. And when they graduate, the case can be dismissed. Or if they win an approbation violation, then their probation is terminated. But the goal is intensive treatment to help that person get back to a situation where they can live a normal life and be free of doing the substance abuse addiction, whether it's methamphetamine, cocaine, alcohol, or whatever. So I think our state has done a really good job of making that model available to a lot of our clients who want to get help for a substance abuse addiction. Otherwise, if we're not going down that track, then we're going down either to the track in which we're trying to get clients charges dismissed or they're being reduced. And that takes a lot of work in terms of being to interview and the client, talking to witnesses, because witnesses make mistakes. You know, they think they may have seen someone done something, but they may have identified the wrong person or it got exaggerated as to what happened. And so a big role of the criminal defense attorney is to get the client's story that helps that client to the prosecutor. You rarely see anybody getting a just get out of jail free card in a case being dismissed without a defense attorney doing a lot of work to get help at that person's story there. For example, we recently had a trial in Maui that was attempted murder. We finally got not guilty, but we had to get it from a jury because the prosecutors were not willing to compromise on the case or reduce the charges or dismiss it. And the person ended up staying in jail for over a year until we got there. We're going to take a quick break on the right back. OK, sounds good. Hi, my name is Bill Shaw, our post of Asian Review coming to you from Honolulu, Hawaii, right here in the center of the Pacific Ocean. Asian Review is the oldest of the 35 or so shows broadcast by Think Tech Hawaii. We've been in production since 2009. Our goal is to provide you, the viewer, with information, breaking information about events in Asia, Asia being anything from Hawaii west of Pakistan, from the Russian Far East south to Australia and New Zealand. We hope to see you every Monday afternoon at 5 p.m. I'm Jay Fidel, Think Tech. Think Tech loves energy. I'm the host of Mina, Marco and me, which is Mina Morita, former chair of the PUC, former legislator and energy dynamics, a consulting organization in energy. Marco Mangostorf is the CEO of Provision Solar in Hilo. Every two weeks, we talk about energy, everything about energy. Come around and watch us. We're on at noon on Mondays every two weeks on Think Tech. Aloha. Aloha. Welcome back to Perspectives on Global Justice. Think Tech Hawaii, this is your host, Beatrice Kudamal, and now we are back with... Thank you, Beatrice. I'm your defensive attorney, Keri Wachu. So, as you were saying... Yes, I wanted to mention something. One of the issues that we have a major problem in the state of Hawaii, it's pretrial detention. We have an inordinate number of people that are being held in custody. And you mentioned in your opening statement about the number of people being in jail. And it's driven by economics, in the large part, and also some of it is what's being charged. There are things in work which could help alleviate jail crowding. I have clients that have to share a jail cell with three or four other people for a cell that's only built for two people or three and they're sleeping on the floor. It doesn't need to be this way. And they just started in Maui, for example, in the juvenile department, allowing some of the teenagers who come into the system to go home to their family with electronic monitoring. That's a bracelet a person wears on their ankle. In federal court, that's done quite extensively with cases that qualify. So, someone isn't taking up a jail space at $145 a day, as you mentioned earlier. Especially if that person is not really at high risk to society. Correct. And I'd like to see that expanded into the misdemeanor and into the circuit court in Hawaii. And I think there's been talk about doing it. There was a committee that was meeting in Oahu about bail reform. There's many aspects to that. One of them that they could do to help alleviate jail crowding is initiate, for example, the electronic monitoring I just mentioned for adults. Those are people ages 18, they're a senior citizen. Another area that I think should be addressed is the bail bond system. In Hawaii, we have a two-court system. We have the state courts and we have the federal national court system. At the federal court level, there's no bail bond. So, if you get in trouble by the police and they say, hey, in order to get out of jail, you have to post $20,000 bail or post 10% with a bail bondsman. In federal court, what you do is you sign. They don't use the bail bond system. There's a hearing with the magistrate or the US District Court judge. And you can sign an unsecured bond and you're released from custody to go home to your thing. In Hawaii, if you don't have that 10% with a private bail bonding company, you stay in jail. Whether it's a trespass case or a minor theft case or something major or something even major. And I think a lot of attorneys that practice criminal defense, that's not fair because if you're rich, you get out of jail. But if you're poor and can't afford it, you're stuck in custody. Right. And not only that, in addition to being stalker in jail or prison, there is also so much of that cast also that's reabsorbed by the community and taxpayers. Right. This person could have perhaps continued to do a walk or start addressing mental health or substance abuse issues or other issues that they could have gained the more transferable skills that would really help. Well, there's another cost, too. And that is families are separated. For example, jail crowding is so bad on some of the outer islands, and Maui I'm quite familiar with, is that some of our clients are being shipped to Oahu. The state then pays to house them at the Federal Detention Center, which is by the airport, or at OCCC. And in some cases, the clients are sent to Halawa State Prison, which is not even meant for pretrial detainees. It's meant for people that have been sentenced to more than a year in prison to go there. And then there's another cost and a difference. So that means families who are particularly families who are on the outer islands are being separated from their loved ones because it's expensive to fly over to Oahu to see them. And if you're a teenager and you get in trouble, for example, the only detention center for a young person, between 12 and 18, is at Kapolei, which is on Oahu. So I'm hopeful that by using electronic monitoring, we'll see less of our youth being shipped to Oahu, which means they're away from their mom, their uncles, their auntie, and we'd be able to stay on island to be closer to family. Right. So yeah, we touched base on the reality of what we are faced with as a criminal justice system here. Why? And it boils down to a lot of times money, the privilege of money that will open doors and opportunities for different ways. And I guess the question I have for you, and I know this is really hard sometimes to touch base on it because nobody really wants to address this issue. But when you are a public defender in King County, Seattle, for example, versus now that you are a private criminal defense attorney, when you think in terms, not maybe in terms of case law, because I imagine you might have continued the same way. But when you're thinking in terms of resources that you have available to be that advocate on behalf of a client about what the situation is and what the options that the client has, do you think that there is a big difference between when you do criminal law as a public defender versus as a private criminal defense attorney? It depends on the office and the individual. I have seen their public defenders do terrific work. And I've seen some really excellent work done by public defenders that went 1,000% for their clients. And they don't have to worry about paying the office bills and stuff like that and dedicate their whole life to it. I've also seen the situation where that hasn't happened. I think this is a private attorney. One of the things I really enjoy being in private attorney myself is as soon as someone comes in the door, whether it's a Saturday or Sunday or a week day, if they need to get in touch with me, I'm going to call them back, talk to them. They need to get down to jail, see them at the jail. And public defenders can do that, too. But it depends on the office and where I practice public defense in Seattle King County. That was one of the top public defense firms that I've ever experienced or seen. And it was really well run. I think there's a lot of, I think in Hawaii, we have a good public defender system as well. But like all public defender systems, they get overwhelmed with caseload. In fact, one of the national dialogues going on right now in some of the cases that are going on is, is it fair to the clients to have a public defender that might have to do 200 felonies a year when really they should only be doing 120 cases a year? Because there's only so much that any individual can do. But if the state isn't willing to pay for a good public defender system, then what's going to happen is the system breaks down. We have people with really good hearts that want to do a good job simply getting overloaded, simply not being able to get down there. And I was a private attorney, I have more control over my caseload. So hopefully I'm not in that situation myself. But and so it really depends on the situation and the persons involved. But I would like to see the state of Hawaii put more money into the public defender system and help them really increase the quality of service they provide. Right, and provide them all that support also for public defenders so that they can really continue to do what their hearts believe in. But really with the infrastructure, the foundation, it will help them thrive. And it will help their clients as opposed to just soak their life out of them and just hear it. So 200 felony cases a year deal with it. So do you see a difference in terms of criminal defense between federal and state criminal cases? There's a huge difference, not so much in how attorneys practice, but in the type of law. For example, in federal court, it's a national legal system. And what it has is they don't have parole, for example, in the federal system. In the state case, for example, if my client gets sentenced to 10 years at a lava or a state prison, you have a second hearing to go to, which is with the parole board, six months after sentencing, where you can ask the person to get out of jail less than the 10 years, maybe less than even half that time. So you get a second bite at the apple of trying to get a person resentenced and get back home to community. In the federal system, you don't have that luxury. If your person is, for example, is convicted of methamphetamine and it's 50 grams or more, the mandatory minimum in the states and the federal system is 10 years to life. And if you have prior drug conviction, it's gonna be 20 years to life. And you don't get good time. You don't get parole. You're gonna serve almost every day of that 10 years that you're sentenced to. So it's a far harsher system. And now with the Trump administration and the culture of being harsher on drugs, I think the situation is in your wolves. Well, it is because Jeff Sessions, the U.S. Attorney General is putting a push out, put an order out to all the U.S. attorneys throughout the nation to try and charge the most they can, don't negotiate cases and try and sentence people to ridiculous amounts of time as much as they can get. And it's just terrible because it completely brought to a halt the sentencing reform discussions that were going on in Congress and have basically come to a stop at this point. And I think it's really hard to not think about what is behind the policies that we have already in place and that's been supplemented by this new administration and not to think about the profit margin that it is to actually incarcerate people. So there is private jail system. There is a business behind that. And I think it takes a big commitment, I think as a nation, not only as constituents but also government to decide we need to do that shift so that we can actually invest in the human being so that that person can have the tools under the foundation to be able to fulfill another life legacy as opposed to being in jail for most of their lives and especially if they are real thing dads. So, could it be you to continue to believe in justice and in restorative criminal justice in the system? So when you wake up in the morning, what drives you to say, I'm gonna go and I'm gonna walk 40 hour days even though I've earned my belt and I've been doing this for 30 years, what gets you going? I just, seriously, it might sound a little corny but I honestly like to see justice done where someone is set free and they get to go home to their family. That is real, I think most criminal defense attorneys would be pleased with that and also particularly if you can go to court and get a case dismissed right off the bat. If everything is conducive to that too, right? And so I can't believe that we are so close to our end but I have one last question for you. Actually two questions very quickly. If you had a magic wand and you could change anything in the federal, under the state and in a criminal justice system in Hawaii, what would that be? And if you could share one part of wisdom or a few to perhaps a new person who's in law school who may be considering criminal defense as practice or even with people who are already in the trenches and they're like, I'm gonna switch to a patent or family law because this is just too hard. What would that be? In the federal system I would advocate for getting rid of the mandatory minimum sentence on drug cases because it is harsh. It is really harsh. I see folks that basically have an addiction but they're not criminals being going away for 10 or more years and that's wrong. So that would be in the state system. I'd like to see a lot more funding into mental health programs and in the substance abuse addiction issues to help our clients out because mental health is a huge, unfortunately the criminal justice system is also a backup for the mentally health people who don't get treatment and they wind up in jail and then through the criminal justice system get something. So I'd like to see the legislature put more money into rehabilitation programs like in mental health and also in drug substance abuse programs for sure. And then your other question was? The power of wisdom to a new law student or a attorney who's considering criminal defense a law or somebody who might be in the trenches and burned out. Well, remember that you're keeping the system honest no matter how hard it may look or how tough it may get on certain days. The criminal defense attorney is the only person in our constitution system that helps keep the police in check from overcharging, overstepping their authority and helps keep prosecutors at bay because otherwise they'd run a muck over our clients. Well, I have so much gratitude and respect for you as a professional and also as my mentor. And as my boss, I have learned so much from you in this 17 months journey, it's not easy, but I think for me who have a streak in social justice, I cannot see a better way to put into practice everything that our hearts believe in to be able to be and help facilitate the changes we wish to see in the criminal justice system one person at a time, one prosecutor at a time, one police department at a time. Well, we are out of time. I hope that you'll come back many times to continue this dialogue. Thank you so much. Thank you Beatrice. And this concludes our episode of Perspective to Global Justice in Tecabai and I see you in two weeks and we hope.