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How to fix Hawaii’s COVID-19 citation nightmare

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The state judiciary system is swamped, and thousands of residents stand to gain criminal records for violating COVID-19 restrictions

Tens of thousands of Hawaii residents have received citations over the past 14 months for violating the governor’s ever-changing and often-confusing COVID-19 emergency orders, which means we soon could be having tens of thousands of Hawaii residents with criminal records.

That is an emergency in itself, according to State Public Defender James Tabe, who was the guest on Keli’i Akina’s latest “Hawaii Together” program on the ThinkTech Hawaii network. Tabe and other judicial and law enforcement officials have been trying to stave off the criminalization of so many Hawaii residents via the enactment of SB540, now awaiting an up or down decision from Gov. David Ige.

Last summer, at one point toward the end,” Tabe told Akina, “there were 60,000 criminal citations for violating an emergency order on Oahu alone,” Tabe said. “Now, for perspective, … in 2019, the island of Oahu only had 20,000 criminal cases. Just this one type of offense has tripled that figure. … It created a huge backlog at this point. At this point, out of control.”

Being criminal cases, the citations have swamped the state judiciary system. And having a criminal record can be devastating, especially considering the benign nature of many of the offenses that were cited.

“I think last year (2020) was the first time we had brand new alleged criminals, so to speak,” said Tabe.  When you’re being charged with a misdemeanor offense like the emergency order violation,” said Tabe, “if you’re found guilty, it’s a crime. It’ll go on your permanent criminal record. This is a big deal, because if you ever fill the job application or scholarships or just questions, ‘Have you ever been convicted of a crime,’ this is something where you have to check ‘yes’ on.”

According to its summary, the bill “Allows for lesser emergency period penalties to be adopted by the governor or a mayor. Allows for the emergency period infractions to be processed under the traffic adjudication process. Allows electronic copies of notices of infractions, infraction adjudication hearings, and notices of infraction judgments to be sent via electronic mail. Grants the district court concurrent jurisdiction over emergency period rule infractions committed by minors.”

Watch the entire interview below. A complete transcript is below.

5-24-21 State Public Defender James Tabe with Keli‘i Akina on “Hawaii Together”

Keli’i Akina: Aloha and welcome to “Hawaii Together” on the ThinkTech Hawaii Broadcast Network. I’m your host Keli’i Akina, and the President of the Grassroot Institute. 

As we now approach what may be a new normal following the pandemic crisis, we’ve got time to reflect on some of the problems that we faced as a society. One of the problems was that thousands of citations were issued for violations of the COVID emergency laws. Not only has that created a backlog of cases in the courts, it raises the question of whether all such violations should be considered criminal offenses. 

To say the least, there has been a great deal of confusion in the public. Even the United States Surgeon General ran afoul of the law by venturing into a public space.

Today, I’ve got with me someone who understands what’s going on. He is somebody who can give us some insight into the solutions that the Legislature has come up with in Bill SB540, and also his insights on what took place and where we should go. 

My friend today on the program is James Tabe. He’s our state’s public defender here in Hawaii. Been with the Public Defender’s Office since 1993. James Tabe, welcome to the program. Thank you for joining us today.

James Tabe: Thank you. Good afternoon, everybody.

Akina: Would just tell us what the public defender’s office does. What is your mission? How do you carry it out? Who do you do that with? What kind of resources are you working with?

Tabe: We’re state-funded. … On TV shows you hear [about] … you have the Miranda rights, you have a right to an attorney. Well, that’s who we are. If you are charged with a crime and can’t afford an attorney, one will be appointed for you. We are the ones that are going to be appointed for you if you can’t afford an attorney and are facing a crime that involves jail time or possible jail time. That’s basically what our office does, and we are quite busy.

Akina: How big is your office? At one time resources were a real problem for the Public Defender’s Office. How’s it look today?

Tabe: It’s always been a problem. We’ve always had to count our pennies, do our best with what we have. We have about 90 attorneys statewide, most on the island of Oahu. With the budget cuts, I believe we’ve lost five attorney positions and a couple of staff positions, but we’re making do. We do our best with what we have.

Akina: Well, James, there’s been a lot of news about the thousands of citations that were issued since the beginning of the pandemic for violations of the governor’s emergency orders, and I think we’re up to 19 or 20 of those orders right now. Can you tell us how bad administratively, has this situation been, and how’s it affected individuals in our state as well as the court system?

Tabe: When the governor issued his first order — it’s not just the governor’s order, by the way, it’s the mayor’s orders as well. A lot are sometimes conflicting, or it’s quite confusing. 

As you just mentioned, there’s 19 orders, and I don’t know how many mayor’s orders that each county had. Last summer, at one point toward the end of summer, there were 60,000 criminal citations for violating an emergency order — on Oahu alone.

Akina: It’s staggering.

Tabe: That’s just last summer. Now, for perspective, what is 60,000? In 2019, the island of Oahu only had 20,000 criminal cases. So just this one type of offense has tripled that figure. You can add that on to what our normal caseload is as well. That was back at the end of summer. I don’t know what the count is now. The pace has slowed down on each island fortunately, but, yes, it created a huge backlog at this point. At this point, it’s out of control. 

Police agencies were not giving warnings. They were just issuing what we call citations for all sorts of things. Everyone thinks it’s just masks or not wearing masks in public places or indoor places, but back then, it was you couldn’t go to the beach, couldn’t go to the park. [Then it’s OK] to go to the park, it’s OK to go into the water. There’s a lot of confusion on just that alone, so people we’re getting cited left and right on that.

I remember the lieutenant governor had a daily Facebook post back then, and he would tell us what’s OK. He wrote down, “Parks, OK. The ocean, OK. Beaches. …” and he wrote the three letters, “WTF,” because he didn’t even know whether it was OK or not at one point. 

Then there’s also curfew violations. At one point, we all had to stay home, and the only reason we could leave the house or the home was for essential activities: work, grocery shopping, food, etc.”, but that’s confusing too. If you left the house and you didn’t look like you’re going to and from work or to and from an essential activity, people were cited for that.

Akina: Right. In fact, sometimes you could be restricted from being in a certain place simply by the activity. Parks would be OK if you were actually exercising in that moment.

Tabe: If you’re moving.

Akina: Now, it spun out of control a bit and became a real challenge in terms of a tremendous number of citations being issued. Can you give some examples of how it really

got extreme?

Tabe: Well, I think people thought, “As long as we’re not loitering too much, it’s OK to go out to the beach,” because we had — back in May or this time of season, everyone’s taking graduation photos, and they did it on the beach. Well, we had one story I was told, that the police officer came up to them says, “You can’t be here,” and even took the camera and took a photo of them — and gave them a citation for being on the beach. Gave the adults, and unfortunately the graduate was 18, he would get a criminal citation as well to start off. It was horrible.

We had a family of four, decided just to stay in their car to drive around, get out of the house during that shutdown period. They went to Round Top, and they didn’t even get out of the car. The officer pulled up, talked to them, and gave the father and mother a citation. The dad had two little kids in the back of the car. I had an attorney, and I don’t want to name names, because I think he worked for a prosecuting agency. He was in the [unintelligible 00:07:29] He stepped off the sidewalk to tie his shoe, was in the park area or the beach area, got cited for tying his shoe.

Akina: Incredible. That’s incredible.

Tabe: People are just going fishing, they thought it was OK. People just didn’t know, because a lot of people don’t read the governor’s orders or mayor’s orders. Some people don’t really watch the news as intently. All these activities that people thought were OK, because it was just out of control at that point.

Akina: I think you told me a story about somebody who stopped to buy a coffee at a store.

Tabe: Yes, that’s true too.

Akina: Which is an essential activity, at least for me. What happened there?

Tabe: It is classified. Just think they’re going to go a restaurant or going to the store, went to get a cup of coffee. Plus ,you get your exercises to that point too, you just walk. They went, got their cup of coffee. It was a They finished their coffee, and then obviously threw it away responsibly. On the way back, they were cited for being out and about. Try to explain your story, [and] basically it’s a “Just tell it to the judge” kind of attitude. That’s what happened.

There’s people — obviously, you mentioned in your introduction, the Surgeon General. I would imagine he was just driving around the island and said, “Oh, look” — I don’t know what he saw or what his party saw. He got out to look at the ocean, and all of a sudden, he gets cited for being on the beach at that time. People got off the bus, sometimes just going home from work or from an essential activity, and they will get stopped and cited. Obviously, more happened within the town limits, the Honolulu district area. That’s where I live, we didn’t have … I didn’t see that strict enforcement at all.

Akina: James, I know that you’re on the defender’s side, but what were police officers saying? What was their experience in having to enforce these regulations, which seem so difficult to understand by the public?

Tabe: Right. Back then, we didn’t know anything about this disease. It was almost a level of panic. We shut everything down at that point. I know the mayor wanted at that point — was very concerned about flattening the curve and all that. I just didn’t understand why we didn’t get warnings, because most of these individuals, I think, that I talked about, wouldn’t do it again if they got stopped.

Akina: There’s an entire category of individuals who may have been especially challenged during this period of time: the houseless, those who didn’t have residences. What was the experience with that?

Tabe: Well, first of all, the houseless and people that are just living on the street, the CDC recommended that they shouldn’t be charged, incited or made to be forced to be moved around. The governor’s orders actually indicated that they have this exemption. However, the houseless, the people on the street, the people living in the park, were cited constantly. One example: It was brought to my attention by a news organization. They asked me and they gave me a drop-down list to make a comment, but one individual received 18 citations for being in the park, curfew, no mask. It’s just varied.

Half of them were given on one day. It’s easy pickings. An officer would drive by and give them a ticket, another one probably drove by and gave them another ticket. I don’t know why. I don’t want to get into the politics of this, of what happened, but there was a point when they had zero — I think the police said they had a period of time they gave warnings, and then all of a sudden it became a zero-tolerance policy, and that’s what happened. I think it was just too easy, because all you have to do is take the ticket book out, write a citation like it’s a parking ticket, and then that was it. It was simple to do.

Akina: Now, wasn’t it the case during this time, and even still now, that many of the houseless individuals who are cited, simply don’t show up in court? Now what kind of problem does that create?

Tabe: Well, this is going to create a [unintelligible 00:12:37] and for a lot of people, when you don’t show up to court, because it’s the criminal citation, a warrant gets issued, or even sometimes a penal summons gets issued. If a warrant’s issued, then the police officer, if you get stopped again, they will actually physically get arrested. You get arrested, brought to court, and then you’ll have to appear before the judge, spend a night in jail maybe. If it’s a weekend, the weekend in jail. Then if you get released they say, “You got to show up to court next time,” or at that initial point, they may be able to deal — take care of your case at that point.

Yes, those people, then we get more arrests. Then all of a sudden, we move them out of their system, and they get more contact with other people, they get thrown into jail cells with more people. There’s social distancing issues, and we get all these kinds of problems where people didn’t show up to court. It created even more backlog, because not only was there the emergency order crime, there was not showing up to court crime as well that they had. Yes, it just made the problem worse.

Akina: Well, thanks for giving us all those examples. James. We’re going to take a quick break, and when we come back, I want to ask you about the difference between a misdemeanor and a basic citation. Because that factors heavily into the problems that have ensued, and maybe a solution that we can take a look at. My guest today is James Tabe, he’s the defender, the head of the office of public defender here in the State of Hawaii. We’re talking about some of the problems logistically that were created with the emergency orders during the lockdowns. We’ll be right back, don’t go away. This is ThinkTech Hawaii, “Hawaii Together.”

[Intermission]

Akina: Hello. Welcome back to “Hawaii Together” on the ThinkTech Hawaii broadcast network. Today I’m talking about a very important issue having to deal with the inadequacy of our existing laws to handle the citations that were issued under the lockdown orders to deal with the COVID virus. I realize that some of the stories that we’ve listened to sound ludicrous, so much so that they provoke laughter, but when we really think about it, these situations are rather heartbreaking and very troublesome, probably, for those who went through the situation, and I know that our office of, defender, the head of, that James Tabe has that sensitivity as well.

What I want to ask James now is this, and welcome back. Thanks for being here. These citations were actually what we call misdemeanors. I’d really appreciate it if you could explain what that means for the average person who gets a citation, and what the legal ramifications of that are.

Tabe: The term citations and violations that were being bandied about the past year or so, they’re a little bit misleading. Usually citations would mean, like, getting a parking ticket where [you would] just pay a fine. But these emergency order violations are actual misdemeanors, where they’re punishable by up to one year in jail. Before we get anyone worried, no one has received one year in jail, and I don’t think anyone received any jail time. They’ve practically all have just paid a fine, but it’s a crime. If you are cited for this, you potentially will get a criminal record if you’re found convicted of this.

For most people, and I think of the 60,000, I think last year was the first time we had brand new alleged criminals, so to speak. No one has ever been accused of a crime until last year. When you’re being charged with a misdemeanor offense like the emergency order violation, like I said, if you’re found guilty, it’s a crime. It’ll go on your permanent criminal record. This is a big deal, because if you ever fill out a job application or scholarships or just [the] question: “Have you ever been convicted of a crime?” This is something where you have to check “yes” on.

A criminal record also affects your professional life. It would affect my professional license. I think other professions have that. I believe that the military, it may have caused a problem with the military. I think that’s one of the reasons why the Surgeon General pled not guilty and was going to fight this case all the way through, because he could not have a misdemeanor on his record.

Akina: James, let me just add to that. I was recently renewing my TSA pre-status to fly and go quickly through airports, and reflected on this just this week when I saw numerous questions asking me whether I had a criminal record. This is serious. What are some of the real practical consequences for people who are charged with a misdemeanor?

Tabe: Basically, because it’s a misdemeanor, you can’t just mail in your ticket or mail in your fine or just resolve it quickly. You have to actually appear in court, and you might have to make multiple court appearances. Because once you appear in court,  because it’s a misdemeanor, you have a right to a jury trial. One of your court hearings is whether you want to give that right up, and to say, “No, I want a bench trial.” This is where my office gets involved. Because there’s a potential jail, you have a right to an attorney, and if you don’t resolve your case right away, you should get an attorney, because of the consequences. It has these unintended consequences of having a criminal conviction. 

If you can’t afford one, we get appointed, but if you can afford one, it’s going to cost you a lot more money than the actual fine here, because lawyers aren’t cheap. That’s the problem we have here with these cases, is that because of the seriousness of the offense, you have to treat it like — a misdemeanor is assaulting somebody or stealing over $250 at a store. It’s a criminal record. Court involvement is much more extensive than just the parking ticket as a citation, because it’s a crime. Most misdemeanors are usually — you get arrested on it. Here, it was easier just issuing citations that looked like parking tickets.

Akina: James, what kind of financial hardship has to be demonstrated in order to qualify for representation by the public defender?

Tabe: There’s no set dollar amount, so to speak. We do follow the Harvey guidelines. If you have a lot of debt or you have a large family or you’re out of work or your nest egg is low, we would take you on. We would help you. We try not to turn away from any people, because we know that a person, even working, both husband and wife working, still it’s very costly. An attorney, something like this may cost thousands in dollars at this point, just to fight something small like this.

Fortunately, most of the cases — not most, but a large number of cases, the prosecutors actually had some discretion to dismiss some cases. But you still had to appear in court. They offered the defendant, as you are now a criminal defendant, “Look, we’ll reduce it to a violation equivalent to jaywalking or some store where it’s noncriminal, and you agree to pay a fine.” Many people took that, did that option.

Other people weren’t given that option or adamant that, “I’m not going to plead guilty to anything that I didn’t do that was wrong.” So they proceeded on, and it required multiple court appearances, and it involved us too, to get involved to see if we could get the case dismissed or we’ll go to trial — do whatever we can at that point.

Akina: James, as a public defender, what’s your experience in dealing with these kinds of cases?

Tabe: Most of the time, because of the risk of being found guilty, even though, let’s say you’re not guilty, if you got a fine, a verdict, and avoid the record, a lot of people would say, “I’ve been going to court,” even though the court is by Zoom or virtually done, “I’ll just pay the $100 fine or $50 fine,” whatever it may have been. We’re able to get it reduced or get it dismissed, explain the circumstances.

Sometimes we have to go to trial. Usually, a judge trial, because people didn’t want to spend two, three days at a jury trial. We did have one jury trial on the island of Maui. A person was charged with violating an emergency order and being at a park when it’s closed. The taxpayer spent two, three days getting 12 jurors, spending two, three days in court. The jury came back not guilty, because the person didn’t want to take this plea bargain of a $75 fine of a noncriminal offense.

As a public defender’s office, that’s where we got involved. We had all these other cases to deal with as well. We just had to have these extra cases, which I really think we should not have. We shouldn’t have had, but we did. It did create more of a burden for us.

Akina: At some point, it became clear that the citations were creating a problem for the whole system in terms of its impact on the judiciary. We’ve only got a few minutes left, but tell us, when did it become evident that this was a problem, and how big was that problem?

Tabe: It became evident right away, I thought. We actually got together back in October because there’s no solution. We didn’t think. Then we thought, “If we just had — the government had — the power to impose a different sanction, like an infraction. Like a speeding ticket or a seatbelt violation or jaywalking, noncriminal offense. That’s what the judiciary, the attorney general, prosecuting agencies, our office, police departments, we all agreed upon this. The attorney general drafted the Bill SB540, which made it so that this type of offense can be treated as an infraction, a noncriminal matter.

Basically, if you want to contest the case, you just write out a statement just like — I don’t know — if anyone’s got a parking ticket or a speeding ticket. The judge believes you, they’ll dismiss it. If he doesn’t and you don’t agree, you can ask for a trial at that point, but it’ll be quick and simple. It streamlines everything, and the best thing about it is that the risk of having a criminal conviction is taken away. The worst you can get is pay a fine.

Akina: Currently SB540 is sitting on the governor’s desk.

Tabe: Right.

Akina: Some people are a little afraid of that. Especially in terms of whether it could result in a lot of very expensive tickets. What are your thoughts on that?

Tabe: Well it’s a lot better than with the system we have now, because if we didn’t have SP540 or it doesn’t pass, we’re going to be stuck at the same position. If you violate a mask violation, you’re going to get charged with a misdemeanor now. Now, if it’s a mask violation, you will be charged with an infraction. The deal with it, if you think you’re guilty, you’ll end up paying the same fine probably, but without all the extra hoops that you have to go through to get there, and without the fear of getting a criminal conviction at that point. 

There was a lot of fear that, “Oh, my goodness, they’re going to issue more tickets,” but I would think they would issue the same amount of tickets, or now, I would imagine, hopefully with this pandemic we’ll see the end of the light, we will see much fewer violations at this point.

Akina: Would people who felt they had been cited unfairly still have a way to appeal?

Tabe: Yes. Basically, you can write a written statement saying, “Look, I explained to the judge.” If the judge agrees with you, you can actually have a trial. You can actually have the officer come in It’s like a little trial you’ll have. You can contest this case. It’s not a done deal. It’s like any other offense. You have a right to a trial, and you will get one if you’re adamant. Risking a trial would mean probably paying the same amount of fine as you did if you had plead guilty. I think it’s beneficial for everyone, at this point, especially for the person who is alleged to have committed a violation.

Akina: That’s great. James, thank you very much for being with us today. You’ve explained a lot and I appreciate your insight.

Tabe: No, thank you for having me. I appreciate it. Any time.

Akina: To everybody, my guest today has been James Tabe who’s a Hawaii State Public Defender. We appreciate his hard work and look forward to seeing this whole situation resolved soon. I’m Keli’i Akina with the ThinkTech Hawaii Broadcast Network. This is “Hawaii Together.” We’ll see you next time. Aloha.

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