Island Crime Beat: Is POHAKU controversy over?

Does the battle over POHAKU end with the opinion of the special counsel hired by Kaua‘i County?

The opinion of special counsel addressed key concerns of whether the restorative justice program — officially known as Productive Optimism Helps All Kaua‘i — that ran from August 2011 to April 2012 until a controversy put it on hold.

The opinion looked at whether POHAKU was legally formed within the Office of the Prosecuting Attorney (OPA); whether First Deputy Prosecuting Attorney Jake Delaplane was acting legally in his role with the program; and whether contracting with Strategic Justice Partners (SJP), the Mainland misdemeanor management administer of the program was in violation of the procurement code.

The implementation of the program was the genuine concern of some County Council members. To participate, an applicant pays SJP a fee of $200 by credit card using an online form.

The opinion said the fee is acceptable as a legitimate cost for the course. In most cases, the fines and fees of the outcome in court would exceed POHAKU’s cost. The opinion stated there are options for people who cannot afford to pay for the program.

Another concern was that POHAKU did not contract via a request for proposals process to allow competitive bidding to Hawaiian or nonprofit organizations. If the procurement code was applicable then it would leave Kaua‘i County vulnerable to insurance compliance and legal issues.

The opinion of special counsel said current law shows no basis for action against OPA regarding the procurement issue. There is room for argument based on evolving case law, but the opinion said POHAKU does not involve public fund expenditures, SJP is a private vendor, and their contract does not fall under the procurement code.

SJP is in a position to provide the education curriculum, drug monitoring, community service management, victim restitution management and the red tape of working with defendants, volunteers and partners regarding insurance and oversight. It is not cost-effective or perhaps even possible for OPA to run such a program on its own.

The opinion recommended a memorandum of understanding be drawn up between OPA and SJP to clearly outline responsibilities and parameters of the agreement. This was the response about the appearance of Delaplane as a representative for SJP.

The state procurement code requires public employees to act as a fiduciary and trustee of public moneys and remain independent from a prospective bidder, offeror, contractor or business. The opinion states that Delaplane acted in good faith but recommended that no one in OPA should continue in such a role to avoid the appearance of impropriety.

POHAKU is said to be the first program of its kind to incorporate culturally based education while providing restorative justice to victims through relevant community service.

In creating the program, Kaua‘i County Prosecuting Attorney Shaylene Iseri-Carvalho said that a small community must take a positive approach to rehabilitation. Defendants on Kaua‘i live in a place where relations run thick and culture is more valued than in most places.

POHAKU makes it possible for an attempt to enlighten people before incarcerating them, she said.

Eligibility for POHAKU is determined case-by-case, but basically it is for non-violent offenses including: camping without a permit; closed area violation; contempt of court or failure to appear; property damage; trespass; disorderly conduct; driving with a suspended or revoked license; false certificates; fraudulent use of license; harassment; inattentive driving; leash law violation; leaving scene of accident with injury or damage to property; mutual affray; negotiating a worthless instrument; no vehicle insurance; prohibitions against alcohol; promoting a detrimental drug; and theft.

POHAKU means both “hope” and “stone” in different contexts of the Hawaiian language. It is the sense of strength, hard work, persistence and learning, and it is about positive change from rock bottom, taking responsibility and making amends to start turning a life around.

The incentive for the defendant is to dismiss a case that may somehow save them from losing a job by clearing a charge from their record. POHAKU aims to take it a step further by getting the defendant involved in the community.

It may reduce the backlog of hearings and the additional fund, but eligibility for the program requires administration and oversight. A positive outcome for the defendant and the community makes the expense worthwhile.

If the end result will be that POHAKU can continue running, then consider that the program needs assistance for equipment, food and volunteer worksite coordinators, not as task masters, but responsible organization representatives. Their main function would be to verify work hours, teach classes and lead participants through a cultural and life-affirming experience.

There doesn’t seem to be any opponents to POHAKU itself but there are those who are concerned about its implementation and operation. At the same time it is unknown if the program would have been possible through another process.

At the time POHAKU was introduced at community meetings, there were people and organizations who questioned the authenticity and effectiveness of mixing culture and corrections in a restorative justice program. There was praise for the initiative but most wanted to see how it looked in operation versus on paper.

The OPA reported at county budget hearings that the first 15 participants had high regards for POHAKU. There was one complaint about a training facility being too cold.

Perhaps the work now will be to incorporate more culture and community involvement to ensure the program outcomes meet the objectives. If not, it is still a community service program that replaces the canceled programs of the judiciary.

∫ Tom LaVenture can be reached at 245-3681 (ext. 224) or tlaventure@thegardenisland.com.