“Don’t give me probation judge, just send me to prison.” Those were the words of a defendant at his sentencing hearing on Wednesday in 5th Circuit Court. The 23-year-old Lihu‘e man was essentially telling the court that the support system
“Don’t give me probation judge, just send me to prison.”
Those were the words of a defendant at his sentencing hearing on Wednesday in 5th Circuit Court. The 23-year-old Lihu‘e man was essentially telling the court that the support system for probation would eventually fail him and find him in noncompliance.
“I am going to end up serving the five years anyway,” said the defendant.
It was one of those moments in the dirge of a lengthy morning calendar when everyone looks up. It wasn’t just that the unexpected request broke the monotony; the defendant’s words resonated as those of someone who foresaw himself potentially making his situation worse if he were be sentenced according to the plea agreement.
He was speaking from experience. He said the risk of violating probation and then having to serve the maximum prison term without parole — was greater than serving the sentence outright without probation when he still has a good chance for early release
After coming to Kaua‘i from Alaska at age 18, the high school dropout said he has a good work ethic and stays employed. The low-wage jobs and a criminal record keep him homeless, however, which puts him at risk of violating probation.
His friends use drugs and the defendant said he could not expect to stay clean in that environment. He says this is also a community he depends upon out of necessity.
After completing drug treatment and other court ordered programs in the past, the man said he is not in a position to remain probation compliant without family on island and a place to live. There is no other way to separate himself from the drug subculture on the island, he said.
If the defendant were to accept probation and have it revoked, then it would make it more difficult to qualify for probation or early release again if he were to re-offend. If sentenced to five years in prison, he said he could expect to be paroled in less than 18 months.
The man said he preferred doing the time outright without the burden of probation, than to risk failing probation and getting the full five-year term.
“Why are you giving up on yourself?” said Judge Kathleen Watanabe.
Prison is designed as punishment, she said. The structure of probation offers drug treatment as long as the defendant is willing to face the problem seriously which means staying in compliance by attending classes and staying clean of drugs.
The defendant was not seeing the value of a great opportunity to turn his life around, she said. The violations that led to substantial noncompliance of probation include failing at drug rehabilitation.
“You’re missing a significant point,” Watanabe said. “If you go to prison then you haven’t addressed the drug issue.”
The structure of probation is designed to closely monitor the defendant to help them stay clean, she said. There are support mechanisms in place through nonprofit and volunteer groups.
The defendant’s most recent charges included resisting an order to stop, driving without a license, no motor vehicle insurance, and failure to appear in court. He was brought back to court in April for violating a five-year felony probation on a second-degree theft charge in early 2012. He tested positive for methamphetamine.
After the statements were made in court and a brief bench conference, State Deputy Public Defender Samuel Jajich said that it is clear that his client does not wish to have probation.
County Deputy Prosecuting Attorney Ramsey Ross said that given the defendant’s history of substance abuse, non-compliance with probation, and the statements in court, the state would ask for the open prison term.
“This is very rare,” Watanabe said.
She then sentenced the defendant to the five-year term he asked for with credit for time served.
Sometimes both sides can be right. Nonprofit offender support groups maintain that job training and housing is crucial to defendants when they are first released from jail.
It is up to the individual to make the choice to change their life and perhaps this defendant wants the faster route to freedom. In his own life experience, perhaps the defendant feared probation as a pie-in-the-sky path. Failure meant an even longer prison term and so he accepted the lesser of two evils — and the one that has no monitoring of drug use.
The courts can assess if this case is an anomaly or if it presents a genuine concern that probation needs a tweaking to ensure the outcomes match the intent of the program. The court may also find that the majority of probationers appreciate the incentives and programs they present to offenders to stay clean to regain control over their lives and regain the trust and support of their families.
The Month of May is also National Drug Court Month.
• Island Crime Beat is a column that reflects on the current events and issues regarding the police, courts and criminal justice system of Kaua‘i.
