Oha Disparate Treatment of Native Hawaiians in Crim Justice 2010

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Oha Disparate Treatment of Native Hawaiians in Crim Justice 2010

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The Disparate Treatment of Native Hawaiians
in the Criminal Justice System

Empowering Hawaiians, Strengthening Hawai‘i | oha.org

Conceptual Theme for Report
Sky father, Wäkea mated with Ho‘ohökükalani, his daughter with Papahänaumoku. Their first child is born ‘alu‘alu (still
born) and is buried ma ka hikina (east side) of their kauhale (house). Soon thereafter, a new plant with a long stalk and a soft,
fluttering leaf sprouts from the earth where there child is buried. They name him Häloanakalaukapalili, for the long-stemmed
plant with its trembling leaves. This is believed to be the first kalo (taro) plant.
Wäkea and Ho‘ohökükalani soon have a second child, a son, born live. This keiki survives and is nourished by the kalo plant,
his kaikua‘ana, elder brother. He is named Häloa in memorial to his elder brother. Häloa is said to be the first Hawaiian person
and progenitor of our Hawaiian race. Thus, the close relationship between the kalo and Hawaiian people stems from this bond
of Häloanakalaukapalili and Häloa. It is believed that when we take care of the ‘äina (maternal progenitor or land) and the kalo,
our older sibling, he will always provide our sustenance.
The cultivation of kalo requires much care. Kalo grows in a lo‘i (patch) that contains fresh, cool, moving water and is tended and
cared for by people. This ensures fresh supply of water to flow freely and generate life in the lo‘i.
Thus, it was natural to conceptualize various stages of lo‘i kalo (taro patch) in this report.
Kalo grows strong and healthy with the right combinations of the earth’s nutrients, abundant water, energy from the sun, and
the gentle breezes of the wind. Similarly, to support pa‘ahao while imprisoned or re-entering into the community, connection
to one’s ‘äina, ‘ohana, and community are needed, not only to grow and develop, but to heal oneself, restore relationships, and
bring forth inner resiliency.
The photos in the beginning of the report, show planters placing the huli (stalk) into the muddy waters. The following photos
reflect the work of mälama, or to care for, the kalo as it continues to develop, grow, expand and transform. The photos towards
the end reflect abundant, vibrant, healthy kalo.
In the same way that planters work together to carefully plant and nurture kalo in the lo‘i, we must all work together to address
the unfairness placed on Native Hawaiians in the criminal justice system; and mälama pa‘ahao, to the best of our ability, to
ensure that positive individual transformation occurs that extends to future generations.

The Disparate Treatment of
Native Hawaiians in the Criminal Justice System

Copyright © 2010 OFFICE OF HAWAIIAN AFFAIRS.
All Rights Reserved. No part of this report may be
reproduced or transmitted in whole or in part in any
form without the express written permission
of the Office of Hawaiian Affairs.
For more information or to download
the full version of this report, visit oha.org

E ho‘okanaka.
.
be a person of worth

These were the very last words of Kamehameha,
the unifier of the Hawaiian islands, upon his
deathbed. To his beloved attendants, the King
uttered the famous, “E ‘oni wale nö ‘oukou i ku‘u
pono (‘a‘ole i pau).” With these words, he instructed
his attendants, “Continue to do what I have done.”
Then, turning to his grieving young son Liholiho,
the dying King spoke these words, “E ho‘okanaka.”
These words continue to be spoken today as an
encouragement to be brave and courageous as well
as to assert one’s Hawaiian identity.

E ho‘okanaka. Be a person of worth.

3 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Acknowledgements
E mahalo mua mäkou i nä kanaka like ‘ole a pau näna i kökua a i
käko‘o i këia papahana mai kïnohi ä hiki i ka pau‘ana nö ho‘i. We
would first like to thank the many individuals who have helped and
supported this project from its inception to its completion.
The foundation of the research study project was based on untiring
commitment, ceaseless dedication and rigorous collaboration of
individuals, community organizations and government agencies.
The study is a culmination of nearly three years of data collection,
analysis, and remarkable partnerships that forged together in
completing the project successfully.
The Office of Hawaiian Affairs (OHA) would like to extend our
warmest mahalo and aloha to Amanda Petteruti of the Justice Policy
Institute, Lana Sue Ka‘opua of the Myron B. Thompson School of
Social Work at the University of Hawai‘i at Mänoa, James Spencer
of the Department of Urban and Regional Planning at the University
of Hawai‘i at Mänoa, Kristin Henning of Georgetown University
Law School, Justin Levinson and Virginia Hench of the William S.
Richardson School of Law at the University of Hawai‘i at Mänoa
for their expertise in various subject matter and research skill in
completing this report.
OHA would like to mahalo Md. Saiful Momen, Margaret E. Ward,
Emmitt Ford, Jr., Laura Sook, Kasey Mordecai, and the staff at
the Georgetown University Law Library who made significant
contributions to this project.
This project would not have been possible without great deal of
cooperation from government agencies, stakeholders, and members
of the community. For that reason, OHA would like to also mahalo
Lianne Moriyama, Administrator of the Hawai‘i Criminal Justice
Data Center, Attorney General’s Office, Maxwell Otani, Director
of Hawai‘i Paroling Authority, Janice Yamada, Director of Adult
Client Services Branch, Representative Faye Hanohano and Will
Espero of the Hawai‘i State Legislature, and the Honolulu Police
Department.
OHA would like to extend its sincerest and utmost mahalo to all
participants who shared their life experiences with the criminal
justice system for this project. Their leo (voice) and mana‘o
(thoughts) are critical to understanding the human and social impact
of the criminal justice system. No words or phrase in English
nor Hawaiian can convey the unsurpassed appreciation and deep
gratitude for those participants courageously sharing the depths of
their lives with us and others.

5 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Ko‘u noho mihi ‘ana, a pa‘ahao ‘ia, ‘o ‘oe ku‘u lama,
kou nani ko‘u ko‘o.
Whilst humbly meditating, within these walls imprisoned,
thou art my light, my haven, thy glory my support.
Ke Aloha O Ka Haku composed by Queen Lili‘uokalani,
March 22, 1895

OHA greatly appreciates the Advisory Council members who unhesitantly provided guidance, support, and direction
throughout the project. These members include Noreen Mokuau of the Myron B. Thompson School of Social
Work at the University of Hawai‘i at Mänoa, Kat Brady of the Community Alliance on Prisons, Aunty Nalani
Olds, pa‘ahao advocate and service provider, David Kamiyama of Alu Like, Inc. and Dennis Kauahi of Queen
Lili‘uokalani Children’s Center.
OHA would like to thank the following people for their feedback, suggestions and expertise: Lorraine Robinson of
Ka Hale Ho‘äla Hou No Nä Wähine, RaeDeen Karasuda of Strategic Planning and Implementation Research and
Evaluation Division of Kamehameha Schools, James Bell and Michael Harris of Burns Institute, Marcia Waldorf of
Mental Health Transformation Working Group Criminal Justice Taskgroup, Wesley Mun and Kawika Patterson of
Department of Public Safety and David Hipp of the Department of Human Services, Office of Youth Services
Additionally, the Justice Policy Institute (JPI), would like to thank the Open Society Institute-New York and the
Public Welfare Foundation for their general support. JPI would also like to thank Sheila Bedi, Sarah Molinoff,
Robert Creighton, and Paul Ashton for their contributions to this report
OHA also appreciates Clyde W. Nämu‘o for the vision and initiation of this study, and recognizes Nalani Takushi
for coordinating and managing the project. OHA research staff who supported this study includes Kamana‘opono
Crabbe, John Alamodin, Ke‘ala Hook, Keola Chan, Malia Ka‘aihue, and Hau‘oli Akaka. OHA recognizes the multidisciplinary efforts coordinated through the final stage of the report to include Communications and Media Relations,
Demography, Information Coordinator, Public Policy and Resource Management. Lastly, the creative and beautiful
design of this report would not have been possible without the talents of John Matsuzaki, Arna Johnson, Charlie
Reppun, Paul Reppun and the Matsuzaki Family.
OHA would like to acknowledge and honor Queen Lili‘uokalani through the above song and verse of the Queen’s
classic composition entitled, Ke Aloha O Ka Haku which she composed during her imprisonment.

6 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Aloha mai käkou,
Over the years there have been a number of studies conducted concerning the disparate treatment of African
Americans in America’s criminal justice system. Though some individuals in our community believe that
Native Hawaiians experience similar treatment in the Hawai‘i criminal justice system, no comprehensive
study has been conducted to determine or deny that such treatment exists. The genesis for this study came
from a desire to know, once and for all, whether Hawaiians are or are not discriminated against in Hawai‘i’s
criminal justice system.
Currently, there are an overwhelming number of Native Hawaiian men and women incarcerated in prison
in Hawai‘i and on the continent. Incarceration affects not only an individual person, but everything and
everyone connected to them. Families are torn apart, children are left without their parents, and whole
communities are dismantled.
The magnitude and complexity of this problem caused considerable attention that led to a collaborative
research study that began three years ago. In this ground-breaking study, OHA asked: “Is there disparate
treatment of Native Hawaiians in the criminal justice system? If so, how and why?”
A collaborative research effort began with the University of Hawai‘i at Mänoa, Justice Policy Institute and
Georgetown University to employ both quantitative and qualitative research methods to gather valuable
information to better understand and address the concerns of our indigenous people. The results and
recommendations of this study are needed to initiate policy reform and systemic change for Hawai‘i. When
we advocate and focus on Native Hawaiians, we are, in short, advocating for the rest of humanity and thus,
it is our hope that this report will further reach to other indigenous people on the continent and the world.
It is clear that when a Native Hawaiian person enters the criminal justice system, they serve more time in
prison and more time on probation than other racial or ethnic groups. Native Hawaiians are also likely to
have their parole revoked and be returned to prison compared to other racial or ethnic groups. Coupled with
the experiences of pa‘ahao included in the pages of this report, it is clear that Native Hawaiians are caught
in a cycle of imprisonment that is perpetuated across generations.
Although the study is completed, our work at OHA has begun. In the past, OHA has supported community
programs to reduce recidivism rates and promote wellness, vocational training and substance abuse
treatment. These agencies and organizations include: TJ Mahoney Ka Hale Ho‘äla Hou No Nä Wähine,
Maui Economic Opportunity, Inc., Alu Like, Inc., Ho‘omau Ke Ola and many more. We anticipate in moving
and working with systems of law enforcement, and program development at the Women’s Community
Correctional Center.
Native Hawaiians are the indigenous people of Hawai‘i, whether you are Native Hawaiian or nonHawaiian, moving beyond Native political status, race or ethnicity, Hawai‘i needs to implement effective
and purposeful policies to address incarceration at its root core to building a vibrant, healthy nation.
Me ka ‘oia‘i‘o,

Clyde Nämu‘o
Chief Executive Officer
Office of Hawaiian Affairs

TABLE of CONTENTS
Executive Summary......................................................................................................................................................... 10
Introduction...................................................................................................................................................................16
About the project...........................................................................................................................................................18
The Demographics of Hawai‘i........................................................................................................................................21
History of imprisonment in Hawai‘i.............................................................................................................................22
Depopulation.................................................................................................................................................................23
Hawai‘i Government......................................................................................................................................................23
Känaka Maoli (indigenous people of Hawai‘i) and the ‘äina (land)...............................................................................24
The impact of the criminal justice system on Native Hawaiians............................................................................26
Arrest.............................................................................................................................................................................28
Charges.........................................................................................................................................................................29
Pretrial Detention.......................................................................................................................................................... 30
Sentencing....................................................................................................................................................................31
Admissions....................................................................................................................................................................31
Probation.......................................................................................................................................................................33
Incarceration.................................................................................................................................................................36
Parole and re-entry........................................................................................................................................................41
Punitive responses to drug use and the impact on Native Hawaiians..................................................................44
Why are Native Hawaiians disproportionately affected by criminal justice responses to drug use?...............................47
Shifting to a public health response..............................................................................................................................48
Disparate treatment within the criminal justice system.......................................................................................52
Disparate treatment of Native Hawaiians......................................................................................................................53
Other possible sources of disparate treatment.............................................................................................................. 59
Collateral consequences of criminal justice involvement on Native Hawaiians..............................................60
Breaking up the family..................................................................................................................................................61
Loss of the family home................................................................................................................................................. 61
Limited employment and vocational opportunities........................................................................................................61
Excessive fines..............................................................................................................................................................62
Loss of driver’s license...................................................................................................................................................62
Diminished educational opportunities........................................................................................................................... 63
Exclusion from civic and political participation............................................................................................................. 63
Social well-being and the criminal justice system................................................................................................64
Educational attainment................................................................................................................................................. 65
Employment...................................................................................................................................................................66
Incarcerated families.................................................................................................................................................... 67
Juvenile justice..............................................................................................................................................................68
The costs of incarceration..........................................................................................................................................70
Recommendations...........................................................................................................................................................72
Cultural Resilience and Protective Factors....................................................................................................................73
Targeting Racial Disparities..........................................................................................................................................76
Reducing contact with the criminal justice system for everyone...................................................................................78

9 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

I maika‘i ke kalo i ka ‘ohä

“The goodness of the taro is judged by the young plant it produces”
The ‘ohä are the keiki that sprouts out of the kalo corm. The regeneration of the
parent plant by its healthy offshoots can assure sustenance and abundance of
kalo in the lo‘i. This proverb reminds us that the goodness and wellbeing of our
families is dependent on the positive relationships and influence that parents
have with their children.

Executive Summary
This project, which began as a research idea at the Office of Hawaiian Affairs,
grew to a collaborative research project supported by the State of Hawai‘i, House Concurrent Resolution 27, passed
by the 25th Legislature on May 6, 2009. The resolution closely examines the impact of the criminal justice system on
Native Hawaiians with the purpose of effecting policy change at the legislative and administrative levels, educating
the media, and serving as a tool for communities to advocate for change within the criminal justice system.
As the U.S. Congress considers a bill which provides a process for Native Hawaiian self determination, there is an
opportunity to create a new vision for the state of Hawai‘i that takes into consideration current social challenges for
Native Hawaiians. One such consideration is the enormous increase of incarceration in Hawai‘i. This report includes
ground-breaking, current, research and analysis, including the voices of Native Hawaiians, about the criminal justice
system and the effect it has on their lives. It is with hope that decision makers will use the information to inform and
develop policy and practice that will influence in building a new nation.
For the last two centuries, the criminal justice system has negatively impacted Native Hawaiians in ways no other
ethnic group has experienced. The findings in this report are concerning as it tells the story of how an institution,
fueled by tax payers’ dollars, disparately affects a unique indigenous group of people, making them even more
vulnerable than ever to the loss of land, culture, and community. These racial disparities begin with the initial contact
of a punitive system that creates over-powering barriers in changing the course of their lives and are exponentially
increased as a person moves through the system.
To reduce the harmful effects of the criminal justice system on Native Hawaiians and all people, Hawai‘i must
take action, and seek alternative solutions to prison. Assistance and training is needed in law enforcement, holistic
interventions need to be implemented and evaluated, and a cultural shift in the way we imprison a person must change.
If not, we will exacerbate prison over-crowding, and continue to foster the incarceration of generations to come.
Key Findings
• Since 1977, the number of people incarcerated in
Hawai‘i has increased more than 900 percent, from
398 people in prison in that year to 4,304 people
sentenced to one year or more in prison in 2008.1
The incarceration rate increased 709 percent from
41 per 100,000 in 1980 to 332 per 100,000 in 2008.2
Comparatively, the U.S. incarceration rate increased
262 percent in the last three decades, from 139
people in prison per 100,000 in the country in 1980
to 504 per 100,000 in 2008.3 In total, more than 2.4
million men, women and children are incarcerated
in the U.S.: about one in every 100 adults.4
• The disproportionate impact of the criminal justice
system on Native Hawaiians accumulates at each
stage. Native Hawaiians make up 24 percent of the
general population of Hawai‘i, but 27 percent of all

arrests, 33 percent of people in pretrial detention,
29 percent of people sentenced to probation, 36
percent admitted to prison in 2009, 39 percent of the
incarcerated population, 39 percent of releases on
parole, and 41 percent of parole revocations.
• Given a determination of guilt, Native Hawaiians
are more likely to get a prison sentence than all
other groups. An analysis of data from the Hawai‘i
Criminal Justice Data Center, controlling for age,
gender, and type of charge, found that for any given
determination of guilt, Native Hawaiians are much
more likely to get a prison sentence than almost
all other groups, except for Native Americans.
Importantly, the other major group of defendants
after Native Hawaiians, Whites, are only about 67
percent (0.674), or two-thirds, as likely as Native
Hawaiians to be incarcerated if judged guilty.5

The disproportionate impact of the criminal justice system on Native Hawaiians
accumulates at each stage. Native Hawaiians are also more likely to receive a sentence
of incarceration over probation.
24%

General Population (2008)

25%

Sentencing related outcomes

Arrest (2008)

33%

Pretrial Detention (2009)
29%

Admissions to Probation (2000-2009)
Admissions to Incarceration (2009)

36%

Incarcerated (June 30, 2008)

39%

Releases on Parole (2009)

39%

Parole Revocations (2005-2009)

41%
0%

10%

20%

30%

40%

50%

Native Hawaiians as a percent of total

Sources: Hawai‘i State Department of Health, Office of Health Status Monitoring, special tabulation from the Hawai‘i Health Survey, January 22, 2010. http://
hawaii.gov/dbedt/info/economic/databook/2008-individual/01/; Hawai‘i Criminal Justice Data Center; Lydia Seumanu Fuatagavi and Paul Perrone, Crime in
Hawai‘i:A Review of Uniform Crime Reports (Honolulu, HI:Attorney General, State of Hawai‘i, 2009). http://hawaii.gov/ag/cpja/main/rs/Folder.2005-12-05.2910/
copy_of_cih2007/Crime%20in%20Hawaii%202007.pdf ; Hawai‘i Department of Public Safety, 2008 Annual Report (Honolulu, Hawai‘i, Department
of Public Safety, 2008). http://hawaii.gov/psd/administration/publications/annual-reports/department-of-public-safety/PSD-AnnualReport2008.pdf
Note: Admissions to incarceration or probation are the result of sentencing. Admissions to probation do not include instances where a period of incarceration
is a condition of probation.

• Native Hawaiians receive longer prison sentences
than most other racial or ethnic groups. Controlling
for severity of charge, age at arrest and gender of
the person charged, Native Hawaiians are sentenced
to 119 days more in prison than Tongans, 73 more
days than Native Americans, 68 days more than
Hispanics, and 11 days more than Whites.
• Native Hawaiians are sentenced to longer probation
terms than most other racial or ethnic groups.
A multivariate analysis controlling for severity of
the charge, age, gender and race shows that Native
Hawaiians also serve more time on probation than
other racial and ethnic groups, except for Hispanics.
On average, a Japanese person is sentenced to 14
fewer days of probation than a Native Hawaiian
person, and Whites are sentenced to nearly 21 fewer
days of probation than Native Hawaiians.6

• Native Hawaiians make up the highest percentage
of people incarcerated in out-of-state facilities.
In 2005, of the 6,092 people who were under the
custody of the Department of Public Safety, which
includes people in jails, 29 percent (1,780) were
in facilities operated by other states or private
companies on behalf of states. Of the people in outof-state facilities, 41 percent are Native Hawaiians.7
• Hawai‘i has the largest proportion of its population
of women in prison,8 with Native Hawaiian women
comprising a disproportionate number of women
in the prison. Native Hawaiian men and women are
both disproportionately represented in Hawai‘i’s
criminal justice system; however, the disparity is
greater for women. Forty-four percent of the women
incarcerated under the jurisdiction of the state of
Hawai‘i are Native Hawaiian. Comparatively, 19.8
percent of the general population of women in Hawai‘i
identify as Native Hawaiian or part Native Hawaiian.9

12 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

• Parole revocations contribute to the number of
Native Hawaiians in prison in Hawai‘i. Although
Hawai‘i released 644 people from prison to parole
in 2009, 249 people were also returned to prison
by revoking parole. Native Hawaiians had one
of the lowest ratios of release to revocations. For
every five Native Hawaiians released, two Native
Hawaiians had their parole revoked (2.5:1 ratio).
Japanese people have a slightly lower ratio (2.4:1)
and Chinese people having the highest, with eight
people being released for every one person returning
to prison on a parole revocation.10

• Native Hawaiians do not use drugs at drastically
different rates from other races or ethnicities, but
go to prison for drug offenses more often than
people of other races or ethnicities. According to
the 2004 Hawai‘i State Treatment Needs Assessment
Program dataset, Native Hawaiians do not use drugs
at widely dissimilar rates to other races or ethnicities,
although there is some variation. Irrespective of the
variation in drug use rates, the percent of Native
Hawaiians that report drug use does not match the
proportion of the total number of people admitted to
prison or jail for drug offenses.

Punitive responses to drug use
disproportionately impact Native Hawaiians

• Native Hawaiians are charged with the majority of
offenses related to methamphetamine, but report
using this drug at only slightly higher rates than
people of other races or ethnicities. The use of
methamphetamine in Hawai‘i, particularly by Native
Hawaiians, is a growing concern. Methamphetamine
accounts for the most charges of all drug offenses.
Although Native Hawaiians do report lifetime use
and current use of methamphetamine at slightly
higher rates than other groups, Native Hawaiians are
still charged with the majority of offenses related to
methamphetamine, by a wide margin. Data from
the Hawai‘i Criminal Justice Data Center shows
that Native Hawaiians make up between 16 and 38
percent of charges for all categories of drugs, but
account for the largest proportion of charges for
methamphetamine (38 percent).

Although the “war on drugs” is part of the larger criminal
justice picture, the effect it has on Native Hawaiian
communities is worthy of discussion in this report.
• Native Hawaiians bear a disproportionate burden
of punitive responses to drug use. Hawai‘i’s criminal
justice approach to drug use was a significant
contributor to the total number of people admitted to
prison or jail in 2009 (762 or about 13 percent), but
has even greater significance for Native Hawaiians.
Native Hawaiians made up the largest portion (32
percent) of the people admitted to prison for drug
offenses in 2009.11

What are the factors that contribute to
disparate treatment in the criminal justice system?
In many respects, racial disparities among Hawai‘i’s
prison population are the products of actions that occur
at different stages in the justice system, beginning with
the decision to make the initial arrest. Research suggests
that the effects of race may be direct or indirect and
may accumulate as an individual continues through the
system itself.12
• The discretionary nature of minimum sentence
setting and release determinations outside the
court are concerning for formerly incarcerated
Native Hawaiians. The real determination of
sentence appears to be not set by a judge, but by the
Hawai‘i Paroling Authority which people that come
into contact with the system see as arbitrary criteria.
Given the cumulative impact of the criminal justice
system on Native Hawaiians and the evidence that

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 13

Native Hawaiians cycle through the system more than
people of other racial and ethnic groups, sentencesetting and discretionary parole based on offense
history will likely contribute to the disproportionate
number of Native Hawaiians in the prison system in
Hawai‘i.
• Incarceration is particularly traumatic for Native
Hawaiians, especially when imprisonment is on
the continent. For Native Hawaiians, the impact
of trauma is particularly salient because of strong
connections to family, the land and community.
Imprisoning people from Hawai‘i contributes to
the growing prison population and exacerbates the
disproportionate impact of the system on Native
Hawaiians because they are cut off from supportive
communities and families that give them a reason
to exit prison as soon as possible. Even the absence
of familiar surroundings and changes in the weather
are traumatizing.
• A lack of programs and services in prison to
prepare a person for returning to their community
contribute to the number of people in prison.
Often, people in prison are required to participate
in specific programs and services in order to be
eligible for release. Without the completion of
those programs, a person can be denied parole.
However, programs and services frequently fill up,
leaving no available spots for everyone who needs to
participate. Not only are people in prison prevented
from earning the earliest release possible, they could
also potentially get to the end of their sentence and
be released without the services that might facilitate
re-entry and prevent return to prison. Complicating
a successful re-entry process is that some people are
returning from prison after serving their time on the
continental United States.
• Culturally inappropriate or unavailable re-entry
services are not as effective for helping Native
Hawaiians achieve successful life outcomes and
stay out of prison. Research shows that culturally
relevant and appropriate interventions and services
are the most effective for helping Native Hawaiians
participate fully in the community.13 For example,
traditional social work modalities typically rely on
self-determination, which is individualistic and is
Northern European or North American in orientation.
Pacific cultures, including Native Hawaiians, tend

It’s hard to fathom in your
mind what it’s like to be doing
stagnant time, sitting on your
bed for 24 hours, only standing
to do head count. Unless they
wear my shoes, they can’t
really comprehend what it’s
like, how it feels, then have
an ACO degrade me, that’s
not encouraging me to better
myself, especially if I come
from a very severe traumatic
background in life. Then you
feel like a dollar symbol with a
revolving door back to prison
(Former Pa‘ahao, Wahine)

to see themselves as part of a collective group or
community.14 In order to effectively provide services
for re-entry or some other wellness promotion
initiative, a provider must be aware of the totality of
community context, interdependence, and, also, the
role that oppression by other groups has played.15
The application of Western values to a culture that
does not share them makes it difficult to ensure
successful implementation of initiatives or services.

14 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

• In Hawai‘i, methamphetamine is the only drug
that carries mandatory sentences and Native
Hawaiians are more likely to be charged with
a methamphetamine-related offense.16 This
mandatory sentencing structure contributes to the
disproportionate representation of Native Hawaiians
in the prison system.
Collateral Consequences,
Criminal Justice Involvement and Native Hawaiians
Imprisonment and conviction carries with it a set
of collateral consequences that extend well beyond
the sentence imposed by the court. Many Hawaiians
coming out of the criminal justice system are denied the
opportunity to finish school; they lose or cannot obtain a
driver’s license; they cannot find stable employment; and
they are simply unable to support their families. These
collateral consequences push the limits of “punishment to
fit the crime” and effectively deprive a person convicted
of an offense of any second chance at effectively living in,
and contributing to, a community. Among the potential
collateral consequences of involvement in the criminal
justice system are the following:
• Incarcerated parents who lose their children may
never get them back and for many women in Hawai‘i
prisons, this is a common occurrence. Hawai‘i state
law allows family courts to terminate parental rights
when a child has been removed from a parent.17 In
addition, persons with a criminal history are barred
from becoming foster or adoptive parents, and simply
living with, or being married to, a person convicted of
a crime limits the individual family rights.8
• While Hawai‘i has laws designed to prevent
discrimination in the hiring of people convicted
of offenses there is little done to enforce the laws
and protect those who have been released from
prison to the community. Despite these laws,
employers frequently screen applicants based on
criminal history, through legal or illegal means and
discriminate, citing other reasons not to hire.19 In
addition, the state may refuse or revoke any license
to practice some type of employment, permit,
registration or certificate of a person convicted of
a felony if the conviction is directly related to the
trade for which the license is held.20

• A person convicted of a drug offense (which
includes alcohol) will lose his or her licenses for
a minimum of six months and up to three years,
depending on the number of previous offenses and
level of intoxication.21 This loss often has tremendous
ripple effect for individuals and families– including
the ability to get to and from work, to search for
employment or housing, visit relatives, obtain
child care and to keep appointments with parole
or probation officers as a term of community
supervision. The loss of a driver’s license is even
more problematic on islands or in jurisdictions with
no public transportation.
Social well-being and the criminal justice system
Involvement in the criminal justice system is a symptom
of the barriers and challenges of Native Hawaiians in
other social institutions and through a historical context.
Although educational attainment, employment status,
economic status, involvement in the juvenile justice, and
the impact of a family member’s incarceration are not
hard and fast indicators of involvement in the criminal
justice system, there is research that that these social
factors are related to incarceration.
• Surveys of incarcerated people have consistently
shown that people in prisons and jails have less
educational attainment than the general population
in the United States. Although Native Hawaiians in
Hawai‘i had completed high school at similar rates to
all other people in Hawai‘i in 2008, Native Hawaiians
are less likely to have earned a Bachelor’s degree.22
The higher the level of educational attainment, the
more access a person has to higher paid jobs and less
likely they will be incarcerated.
• People in prison generally also made less money
prior to their incarceration than the general
population. For any number of reasons that are
beyond the scope of this report, Native Hawaiian
families have the lowest mean income of all ethnic
groups in the state.23 Additionally, Native Hawaiians
in Hawai‘i had the highest percentage of people living
below the poverty line in 2000.24 Specifically, Native
Hawaiians have a poverty rate of 12.2 percent, while
non-Natives have a poverty rate of 8.6 percent.25

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 15

• The effects of imprisonment on children
and families are far reaching and can have
lasting negative consequences on families and
communities. For example, children whose parents
are in prison are also more likely to develop antisocial behaviors, be involved in gangs, delinquent
behaviors, or drug use than youth whose parents are
not in prison. Research done by National Council
on Crime and Delinquency found that children of
parents in prison are five to six times more likely to
become incarcerated than their peers.26 Given that
Native Hawaiians make up the largest percentage of
the state prison population, the impact on families is
widespread and affects many generations.

person is ready for community reintegration, they
are forgiven and return to the community without
the continued burden of the criminal justice system.
This idea is particularly important as it pertains to
the restrictions placed on formerly incarcerated
people regarding jobs, education and housing.
• The cultural value of kuleana, or responsibility
to the greater good, is another cultural strength
that is central to the process of helping Native
Hawaiians stay out of the criminal justice system
and reintegrating to communities after prison.

Recommendations

• Native Hawaiian culture draws strength from
community and family building, as well as
communication. For example, the process of
ho‘oponopono, which is a spiritual process of “setting
to right; to make right; to restore and maintain
good relationships among family and family-andsupernatural powers,” was once practiced daily. The
values associated with ho‘oponopono are love and
affection (aloha); unity, agreement and harmony
(lökahi); and family and community (‘ohana).29 It is
a sacred, culturally valuable process that draws on
family and community for support and healing.

Through interviews with Native Hawaiians, pa‘ahao
(formerly incarcerated or currently incarcerated people),
advocates, treatment providers, and corrections officials,
the following recommendations have been developed.
Additional recommendations from the work of experts
in the field of intentionally reducing racial disparities are
also included.

Racial disparities must be targeted intentionally in order
to reduce them. First steps include gaining stakeholder
support, making administrative or governmental
resolutions to address the problem, setting goals, and
collecting accurate and current data at various points
in the criminal justice system to determine where racial
disparities occur and to what degree.

The resiliency of Native Hawaiians and the strength
of culture, are the foundation for keeping Native
Hawaiians out of the criminal justice system.

At the same time, an overall reduction in the number
of people in prison will support efforts to reduce
racial disparities. Strategies may include: investing in
alternatives to incarceration such as, shifting resources
to furlough programs and re-entry strategies that
reduce recidivism to incarceration, investing in holistic
treatment programming in communities on all islands,
and refraining from placing people in prison on the
continent.

• Research shows that Native Hawaiian youth are
disproportionately represented in the juvenile
justice system in Hawai‘i. A study of 805 juvenile
cases in Hawai‘i between 1995 and 1999 found that
approximately 50.5 percent of the youth in juvenile
facilities in Hawai‘i are Native Hawaiian. 27 In 2003,
Native Hawaiian youth were the most frequently
arrested in all offense categories.28

• Building on cultural pride and positive identity
construction may assist and support Native
Hawaiians return to communities. For example, the
pu‘uhonua, or city of refuge or sanctuary, could be
applicable to the criminal justice system. When a

16 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Introduction

Almost every Native Hawaiian has a family who has been incarcerated.
(Native Hawaiian käne, Community Advocate)

he number of people involved in the United States’ criminal justice
system has increased steadily over the last 30 years. Since 1977, state
prison populations have grown more than 450 percent. Currently,
1.6 million people are incarcerated in state prisons and near another
million are locked up in local jails and federal prisons.30 The U.S. incarceration
rate increased 262 percent in the last three decades, from 139 people in prison
per 100,000 in the country in 1980 to 504 per 100,000 in 2008.31 In total, more
than 2.4 million men, women and children are incarcerated in the U.S.: about
one in every 100 adults.32
The rate of incarceration in Hawai‘i increased 709 percent between
1980 and 2008 from 41 per 100,000 to 332 per 100,000.

Rate of incarceration

(per 100,000 in the population)

600
504

500

1980
2008

400

332

300
200

139

100

0
U.S.

Hawai‘i

Source: Bureau of Justice Statistics, “Prisoners under State or Federal jurisdiction sentenced to more than
one year, Federal and State-by-State, 1977-2004: Statistical Tables,” December 2005. http://bjs.ojp.usdoj.
gov/content/data/corpop01.csv. Heather C. West, William J. Sabol, and Matthew Cooper, Prisoners in 2008
(Washington, D.C.: Bureau of Justice Statistics, 2009) http://bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf
Note: Hawaiian prisons and jails are a combined system. This graph includes only people sentenced to one
year or more.

In Hawai‘i, the growth has been even more rapid. Since 1977, the number of
people incarcerated in Hawai‘i has increased more than 900 percent, from 398
people in prison in that year to 4,304 people sentenced to one year or more
in prison in 2008.33 The incarceration rate increased 709 percent from 41 per
100,000 in 1980 to 332 per 100,000 in 2008.34
One way to understand the impact of the increase in the number of people in
prison in Hawai‘i is to think about the effect it has on families. Assuming that
the 918,000 people in Hawai‘i in 197735 consisted of families of three,36 then
one out of 768 families has a member in prison. If a similar assumption about
family size can be made regarding the 1.3 million people in Hawai‘i in 2008,37
then one out of 100 families has a member in prison.38
Native Hawaiians are overrepresented in every stage of Hawai‘i’s criminal
justice system, and the disproportionality increases as Native Hawaiians go
further into the system, also making it harder to leave and stay out of prison.
This concentrated impact on Native Hawaiians has a ripple effect for whole
communities; when one member of the community is in prison the entire

What is the definition
of “Native Hawaiian”?
The law that created the Office
of Hawaiian Affairs (Chapter
10, §10-2)40 defines Hawaiian and
Native Hawaiian as follows:
“‘Hawaiian’ means any descendant of the aboriginal peoples
inhabiting the Hawaiian Islands
which exercised sovereignty
and subsisted in the Hawaiian
Islands in 1778, and which peoples thereafter have continued to reside in Hawai‘i.”
Although it is not the definition
of Native Hawaiian used in this
report, the same statute,
further defines Native Hawaiian
in this way:
‘Native Hawaiian’ means any
descendant of not less than
one-half part of the races
inhabiting the Hawaiian Islands
previous to 1778, as defined by
the Hawaiian Homes Commission
Act, 1920, as amended; provided
that the term identically
refers to the descendants
of such blood quantum of
such aboriginal peoples which
exercised sovereignty and
subsisted in the Hawaiian
Islands in 1778 and which peoples
thereafter continued to reside
in Hawai‘i.”
The data from the agencies used
in this report is self-reported
data, either in the form of a
survey or a census, including
data from the Hawai‘i Criminal
Justice Data Center. Although
some evidence suggests that
the self-reporting method of
determining race and ethnicity
undercounts the number of
Native Hawaiians involved in the
criminal justice system,41 for the
purpose of this report we are
using only the numbers available
through the Hawai‘i Criminal
Justice Data Center or other
government resources.
In the few instances in which
the data available aggregates
Native Hawaiians with Pacific
Islanders, it is noted and where
possible an explanation is given.

18 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

community suffers. Incarceration leaves one less person
to provide support to a family, serve as a parent, provide
child care, and to generally be part of the family. In
addition, a community loses a person who might
otherwise contribute to the community through taxes,
volunteering, or some other community involvement.
While incarceration and contact with the criminal justice
system is devastating for any family or community,
for Native Hawaiians, incarceration has particular
destabilizing effects, as Hawaiians come from close-knit
communities that often rely on each other for child care
and supports.39

About the project
This project is intended to closely examine the impact of
the criminal justice system on Native Hawaiians with the
purpose of effecting policy change at the legislative and
administrative levels, educating the media, and serving
as a tool for communities to advocate for change within
the criminal justice system. The project, which began as
a research idea in the Office of Hawaiian Affairs, grew
to a collaborative research project supported by Hawai‘i
House Concurrent Resolution 27, passed by the 25th
Legislature on May 6, 2009.42
The report reflects a Community-Based Participatory
Research (CBPR) model that was designed to be
sensitive to the experiences of Native Hawaiians who are
affected by the criminal justice system and includes an
advisory council to maintain a high level of sensitivity.
The advisory council members have many years of
experience working with people in prison or formerly
in prison and their families. The members are Native
Hawaiian clinicians and researchers who reflect a
balance of western and indigenous perspectives. They
also have an understanding of indigenous people within
the context of western institutions.
The advisory council provided guidance and direction in
culturally sensitive areas related to Native Hawaiians and
their worldviews. The advisory council participated in
monthly meetings, as well as one-on-one consultations
with researchers and coordinators, kept the contributors
to the project abreast of current, relevant topics, and
shared experience regarding legislative and community
movements.

This report, itself, presents information on how Native
Hawaiians are affected by the criminal justice system
and the reasons why they might be disproportionately
impacted by the system. The first section of this report is
primarily the analysis of data from the Hawai‘i Criminal
Justice Data Center by Dr. James Spencer and Saiful
Momen of the University of Hawai‘i at Mänoa. The data
set, in its entirety, has never been available to this degree
and it is instructive not only for the information that is
available, but also for the information that is not.
The next section is an exploration of the impact of punitive
response to drugs and drug use on the Native Hawaiian
community. Although these punitive responses are part of
the larger impact of the criminal justice system, they are
considered separately from other offenses and together
with information about treatment and recommendations
because of the concentrated and important impact on
Native Hawaiians. Research shows that addressing
drug use with a public health response instead of a
criminal justice response will dramatically reduce the
number of people in prison generally and the number
of Native Hawaiians in prison, specifically. This section
of the report includes data from the Hawai‘i Criminal
Justice Data Center, as well as excerpts and analysis of
interviews of formerly incarcerated people, treatment
providers, advocates, and corrections officials.
The qualitative information included in the subsequent
section of the report is the result of intensive and
purposeful interviewing by Dr. Lana Sue Ka‘opua and
Margaret E. Ward, of the University of Hawai‘i at Mänoa
The participants in the project speak to the realities of
coming into contact with the criminal justice system
and fill in the gaps that the data is silent on, in terms of
personal experience.
The remaining sections of this report include key issues
such as social well-being factors and indicators of
opportunities that might correlate with incarceration;
the collateral consequences of involvement in the
criminal justice system; information on more costeffective ways to reduce the number of people in
prison while protecting public safety in Hawai‘i; and
a comprehensive recommendations section that draws
from the experiences of the people interviewed for this
project as well as policy recommendations from experts
in the field.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 19

Quantitative Component
The quantitative component of this project determines the points of the criminal justice system at which Native
Hawaiians are affected, as well as the scope of the problem. Accurate, current data is critical to understanding
the problem and to making informed policy decisions.
This project uses data from the Hawai‘i Criminal Justice Data Center (HCJDC), a state agency that compiles
data from county police departments, state and local law enforcement agencies, courts, the Attorney General’s
Office, prisons, and all other public agencies concerned with crime, courts, and public security. Although the
primary function of the HCJDC is to do background checks, it is also an excellent source of information to better
understand the social and demographic patterns of those who engage the criminal justice system in Hawai‘i.
In particular, because much of the data that is supplied to the HCJDC from the various agencies includes selfreported information on race and ethnicity, the data compiled by the HCJDC is an important resource for
exploring the question of disproportionate representation of Native Hawaiians in the criminal justice system.
Through a strict confidentiality agreement between the Office of Hawaiian Affairs (OHA) and its researchers,
and HCJDC, the HCJDC provided complete records from its database for all cases that were found in the State
of Hawai‘i criminal justice system between 2000 and 2009. Because the data contain sensitive information, the
researchers secured a restricted, locked office space at the University of Hawai‘i Department of Urban and
Regional Planning (DURP) to conduct all analyses.

Procedures

HCJDC provided data separated into seven areas of criminal justice data, including personal, arrests, charges,
disposition, sentence, custody, and supervision information. Researchers used a statistical software package to
aggregate and clean the data so that files could be matched. Overall, the seven themes represent three distinct
levels of analysis: person (n=148,995), arrest (n=502,748), and charge (n=681,923). Since one person can be
arrested several times, and any single arrest can have multiple charges, the data are “nested” in several “oneto-many” relationships. For this reason, we were able to link information on custody supervision and sentence
to person, as well as disposition to charge. While matching the cases at each of these levels is not perfect,
the number of unmatched records was relatively small compared to the number of good matches, strongly
suggesting that these errors have minimal effect on the overall analysis and conclusions.
These data files were used to develop descriptive charts, tables and graphs, as well as to perform a number of
inferential statistical analyses. In general, where the dependent variables of interest were binary – or the analytic
question was whether an event happened or not – researchers used logistic regression techniques. An example
of such a question is “whether a Native Hawaiian is more likely than others to be convicted, controlling for other
explanatory factors.” Where the dependent variables of interest were metric – or the analytic question was how
much greater the degree of impact – researchers used ordinary least squares (linear) regression analysis. An
example of such a question is “how much longer is the average Native Hawaiian probation sentence than all
other ethnic groups’, controlling for other explanatory factors?” Many descriptive and multivariate models were
developed as part of the research project, and only those results most directly related to the question of whether
Native Hawaiians are disproportionately represented in the criminal justice system in Hawai‘i are presented.
Detailed information about research methods for the quantitative portion of this study is included in Appendix A.

I gave almost 20 years of my life to the State. I am afraid I am just going
to come back into prison.
(Former Pa‘ahao)

20 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Nä Kuana ‘Ike:
Perspectives of Pa‘ahao and their Allies
The qualitative aspect of this project focuses on the human impact of the criminal justice system (CJS) on Native
Hawaiians, who as a group are disproportionately represented among those arrested, entering the criminal justice
system, receiving consecutive and more severe sentences, and returning to prison for probation and parole violation
without a new sentence.
To understand the human impact on Native Hawaiians, researchers conducted in-depth interviews with 35 individuals,
a significant majority of whom are of Native Hawaiian ethnicity. All respondents had direct and extended experience
in the criminal justice system. Some participants served prison sentences and some were family members of people
who had served prison sentences. By recounting their experiences, participants shared perspectives often obscured
by their position in the criminal justice system and by their marginalized status in society at large. Also interviewed were
those who have worked in the criminal justice system as correctional officials, treatment providers, and community
advocates/volunteers.
Participants detail profound and myriad challenges in the face of individual circumstances, group marginalization,
and systemic realities. However, these same experiences also reflect cultural strengths and in most cases, dedication
to the prospect of well-being and equity in the criminal justice system.

Procedures for qualitative research

Researchers conducted semi-structured, in-depth individual or group interviews. Guided by the project’s community
advisory committee and informed by extant data on Native Hawaiian incarceration, researchers identified five overarching (research) questions:
1) W
hat are the social pathways leading to incarceration among Native Hawaiian men and women?
2) H
ow do Native Hawaiians experience the criminal justice system?
3) W
hat are barriers and facilitating influences to exiting the criminal justice system?
4) W
hat are promising programs and policies for successful prevention of return to the system?
5) W
hat might be the role of interventions grounded in Hawaiian cultural strengths?
These over-arching questions led to the formulation of interview questions. For example, to identify and describe social
pathways to incarceration, researchers asked former pa‘ahao (inmates) to talk about their first experience with the
criminal justice system, how old they were at the time, and what was happening to them in their lives.

Sample

Advisory committee members provided suggestions of stakeholder groups important to include in the study, as
well as the names of organizations and individuals to contact. Based on their recommendations to include diverse
perspectives, researchers stratified participants by stakeholder groups: (a) former pa‘ahao (inmates), (b) ‘ohana
(family members of former pa‘ahao), (c) persons employed or retired from the correctional system, (d) treatment
providers, and (e) community advocates and/or volunteers.
To promote study participation, researchers conducted informational sessions about the project. In most cases, those
approached consented to participate in an individual or group interview. Generally, participants were enrolled in the
project by eliciting from interviewees suggestions on others who might be important to interview. The sample included
35 participants with the following characteristics:
•
•
•
•
•

85 percent (29 people) reported Hawaiian ethnicity
54 percent (18 people) were käne (male).
About 57.1 percent (10 käne, 10 wähine or women) of those interviewed had experienced the system as pa‘ahao.
Of those experiencing the system as pa‘ahao, about 75 percent (10 käne, 5 wähine) reported Hawaiian ethnicity.
Also interviewed were: family members of former pa‘ahao, correctional officials (retired or currently employed) for
the Hawai‘i State Department of Public Safety, treatment providers, and community advocates.

Each person shared their unique experiences and perspectives on pathways leading to criminal justice system
involvement, barriers to pa‘ahao exiting the system, needs and recommendations for public policies and service
programs, as well as many other insights.
Detailed information about research methods for the qualitative portion of this study is included in Appendix B.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 21

The Demographics of Hawai‘i
According to Hawai‘i’s Department of Business, Economic Development and Tourism, 1,257,607 people lived
in Hawai‘i in 2008. Native Hawaiians made up 24 percent of the population.43 Whites made up the next largest
proportion of people in Hawai‘i at 20 percent; people who claim mixed heritage made up 20 percent; people with
Japanese ancestry made up 18 percent; and Filipinos and Chinese people made up 12 percent and 4 percent of the
population, respectively.
Race/Ethnicity
Unmixed (excluding Hawaiian)
White
Black
Japanese
Chinese
Filipino
Korean
Samoan/Tongan
Mixed (except Hawaiian)
Hawaiian/part Hawaiian

Percent of total population in 2008 (1,257,607)
56%
20%
1%
18%
4%
12%
1%
1%
20%
24%

SOURCE: Hawai‘i State Department of Health, Office of Health Status Monitoring, special tabulation
from the Hawai‘i Health Survey, January 22, 2010. http://hawaii.gov/dbedt/info/economic/databook/2008individual/01/
Note: “Other” category is negligible given the available disaggregation of data.

Given the demographic make-up of Hawai‘i, this report intentionally uses Whites, Japanese, Filipino, Chinese,
and all others as comparative racial and ethnic groups to Native Hawaiians. Those groups comprise the largest
proportions of the state population.
page-21
About two-thirds of Native Hawaiians live
in Honolulu County, and about two-thirds
of the total population, more than 880,000,44
also live in Honolulu County on the island
of O‘ahu. Native Hawaiians make up
approximately 23 percent of the population
in Honolulu. Although about 6 percent of
Native Hawaiians live in Kaua‘i County,
that county includes the island of Ni‘ihau,
on which the majority of full-blooded Native
Hawaiians reside.

Most Native Hawaiians in Hawai‘i live in Honolulu County.

17%

(51,971)

Honolulu County

Hawai‘i County

(17,198)

12%

(35,337)

66%

(201,331)

Kaua‘i County
Maui County

22 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

History of
imprisonment in Hawai‘i

Aia nö ka pono – ‘o ka ho‘ohuli i ka lima i lalo,
‘a‘ole o ka ho‘ohuli i ka lima i luna
That is what it should be – to turn the hands palms down, not palms up

No one can work with the palms of his/her hands turned up. When a person is always busy, (s)he is said to keep his/her palms down.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 23

he imprisonment of Queen Lili‘uokalani in
January 1895, marked the culmination of
a hundred years of western imposition in
Hawai‘i. The rapid rise of capitalism and
business interests impressed Western governance, laws
and justice on the independent Hawaiian nation. More
specifically, the adoption of a Western system shifted
governance away from the Mö‘ï (King), which resulted
in severing the reciprocal relationship of mälama (to
take care of) between the ali‘i (Chief) and maka‘äinana
(commoner).45 The new systems of law also introduced
forms of punishment that comprised of law enforcement,
courts, prison and parole.46 The Queen’s wrongful
imprisonment is one manifestation of a long genealogy of
adverse affects of Western law on Native Hawaiians.47

Depopulation
The physical, social and political well-being of the
Hawaiian nation was severely affected in the colonizing
project as seen with the depopulation from an estimated
one million kanaka maoli in 1778, to forty thousand by
189048, the dispossession of land in the 1848 Mähele,49
and the illegal overthrow of the Hawaiian Kingdom
in 1893.50

Hawai‘i government
The Hawaiian nation was proclaimed in 1810 by
Kamehameha I, following the successful unification of
the eight major Hawaiian Islands. The 1840 Constitution
promulgated by Kauikeauoli, Kamehameha’s successor,
further codified the Hawaiian nation.51 Although the ali‘i
adopted a western governing process, they held fast to
their Hawaiian governing methods that were largely
informed by Hawaiian epistemologies.52
For example, Queen Lili‘uokalani’s first official political
act was to promulgate a new constitution to replace the
1887 Bayonet Constitution forced upon her predecessor
that removed the power of the sovereign and put it in
the legislature.53 The impetus for promulgating a new
constitution did not come from a self-serving need to
increase her power, instead it came from the outcries
of her constituents, the maka‘äinana.54 Many petitions
were drafted by the maka‘äinana in opposition of the
influx of foreigners coming to Hawai‘i and purchasing
their land.55

Traditionally, the ali‘i’s kuleana (responsibility) was
to take care of and protect the maka‘äinana; however,
the introduction of disease, foreign capitalist interest
and western law inhibited the ali‘i from performing
this primary kuleana significantly straining their
relationship.
The transitions of the new laws moved Hawai‘i away
from the kapu (sacred laws) system towards Christian
laws and ideals.56 The new laws shifted and affected the
daily lives of the maka‘äinana by punishing common
behaviors such as sexual activity, ‘awa and hula.57
Beginning around 1850, Hawai‘i entered another
transition that moved towards a legal system. The
transition of the new legal system transferred the power
from the Ali‘i and the gods to a legislative form of
government.58 The legislature was made up largely by
American businessmen who were driven by capitalism
and their personal political interests rather than the
welfare of the nation.59
The legislative majority staunchly supported sugar
industry which; further disempowered the Hawaiian
people as their land was used for business and economic
gain.60 In order to establish and support a thriving sugar
plantation system, the missionaries placed American laws
and legal systems to protect private property, education,
religious values and the conceptions of marriage.61
It was after these transitions that Queen Lili‘uokalani
was arrested for treason on January 16, 1895, and
imprisoned in her palace.62 A group of Western
businessmen, supported by the United States overthrew
the Hawai‘i government in 1893 and proclaimed a
provisional government.63 Queen Lili‘uokalani made
several attempts to negotiate with the United States to
return Hawai‘i’s sovereignty. In September of that year,
Queen Lili‘uokalani was released from imprisonment.64
Native Hawaiians were not always disproportionately
represented in the criminal justice system in Hawai‘i.
Other immigrant groups, including Japanese, Chinese,
Portuguese, and Norwegian people, who were imported
to labor on plantations in Hawai‘i were generally viewed
as a threat and feared by White colonists.65 Based on a
sample population of the island of Hawai‘i, beginning of
the late 18th century until 1945, most of these groups were
disproportionately represented as defendants compared
to the general population.66 By contrast, the sample

24 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

population of the island of Hawai‘i showed that Native
Hawaiians were disproportionately, underrepresented
compared to the general population in the criminal
justice system until mid-1900s.67
RaeDeen Keahiolalo-Karasuda in The Colonial Carceral
and Prison Politics connects neocolonialism and
neocolonial violence to disproportionate punishment
of kanaka maoli in the criminal justice system.
Keahiolalo-Karasuda discusses the brutal colonial
punishment in Hawai‘i related to Chief Kamanawa, the
Cookes’ boarding school, and the overthrow of Queen
Liliuokalani. The idea of colonial carceral, affects
todays kanaka maoli who are imprisioned by removing
them from their ‘ohana, and communities, and at the
same time, weakening their ability to self-govern.68

Ka¯naka Maoli (indigenous people
of Hawai‘i) and the ‘a¯ina (land)

When you work the ‘aina you learn
about who you are.
(Community Advocate)
To have a more complete understanding of the impact
of incarceration on the Native Hawaiian people, and
in order to develop recommendations that will work to
reduce racial disparities in the justice system, there must
be an understanding of the historical trauma associated
with the loss of land, language and religion through
contact with Western civilization.69 Historical trauma
manifests itself in a variety of ways, but most notably
for this report, it includes substance abuse.70
For many indigenous people, including Native
Hawaiians, the land is central to culture and well-being.
Noa Emmett Aluli and Davianna Pomaika‘i McGregor,
respected activists and preservationists of Hawaiian
culture, write that Native Hawaiian people relate to the
land as they would “an ancestor or dear friend.” The land
is not possessed or owned and neither are resources that
come from it, but Native Hawaiians are stewards with a
great deal of respect for the land.71 It is not simply the
physical removal from the land that is traumatic, but it is
the spiritual loss of the land that is damaging.

The long history of land alienation begins with the arrival
of Spanish explorers, and continues through the arrival of
Captain Cook, missionaries, sugar planters, immigrant
workers, and the growth of the tourist industry and private
businesses. Although there have been several recent efforts
to give lands back to Native Hawaiians in the form of the
Hawaiian Homes Commission Act and the Hawaiian
Home Lands Recovery Act, both, both generally employ
a process that returns the land to Native Hawaiians instead
of returning Native Hawaiians to the land.72
Arguably, however, one of the most offensive and
traumatic ways of alienating a Native Hawaiian person
from the land is physically removing them from it and
placing them behind bars, especially if those bars are
on the continental United States. Prison prevents Native
Hawaiians from practicing traditional Hawaiian religion
and is a spiritual severance from an important part of
everyday life, thus perpetuating a cycle of cultural
trauma. Cultural trauma is the result of a history of
marginalization by a dominant group.

Bouncing Hawaiians out of their
homeland and into prisons on the
continent severs those ties to
their land [and] their family.
(Community Advocate)
At the same time, it is worth noting that community
efforts to promote sovereignty have occasionally resulted
in criminal justice responses that exacerbate the impact
of land loss. William J. Rodgers, Jr. of the University
of Washington, argues that the sovereignty movement is
inherently an affront to the systems of law and, thus, the
agents of the law are more likely to react more punitively
to what might seem like small transgressions.73
Although the sovereignty movement and the political
implications it has for the involvement of Native Hawaiians
in the justice system is not central to the argument presented
in this report, perhaps it is worth considering that more
recent stereotypes of Native Hawaiians related to the
sovereignty movement, including militancy and defiance,
contribute to the involvement of Native Hawaiians in the
criminal justice system.

Nä Pulapula a Häloa
The descendants (sprouts, cuttings) of Häloa

Note, pulapula refers to offspring, descendants and ho‘opulapula
may also mean to regenerate, rehabilitate

26 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

The impact of
the criminal justice system on Native Hawaiians

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 27

General Population (2008)

25%

Sentencing related outcomes

Arrest (2008)

33%

Pretrial Detention (2009)
29%

Admissions to Probation (2000-2009)
Admissions to Incarceration (2009)

36%

Incarcerated (June 30, 2008)

39%

Releases on Parole (2009)

39%

Parole Revocations (2005-2009)

41%
0%

10%

20%

30%

40%

50%

Native Hawaiians as a percent of total
Sources: Hawai‘i State Department of Health, Office of Health Status Monitoring, special tabulation from the Hawai‘i Health Survey, January 22, 2010. http://
hawaii.gov/dbedt/info/economic/databook/2008-individual/01/; Hawai‘i Criminal Justice Data Center; Lydia Seumanu Fuatagavi and Paul Perrone, Crime in
Hawai‘i: A Review of Uniform Crime Reports (Honolulu, HI: Attorney General, State of Hawai‘i, 2009). http://hawaii.gov/ag/cpja/main/rs/Folder.2005-12-05.2910/
copy_of_cih2007/Crime%20in%20Hawaii%202007.pdf .; Hawai‘i Department of Public Safety, 2008 Annual Report (Honolulu, Hawai‘i, Department of Public
Safety, 2008). http://hawaii.gov/psd/administration/publications/annual-reports/department-of-public-safety/PSD-AnnualReport2008.pdf
Note: Admissions to incarceration or probation are the result of sentencing. Admissions to probation do not include instances where a period of incarceration is
a condition of probation.

he disparate impact of these laws and their
enforcement on Native Hawaiians is apparent
at every stage of the criminal justice system,
starting from arrest and continuing through
parole. The impact is cumulative, starting with a
relatively small disproportionality at arrest, but revealing
itself to be more distinct at sentencing and incarceration.
Disproportionate representation at the pretrial detention
stage is the catalyst for increasing disparities throughout
the system. Pretrial detention relates to an increased
likelihood of incarceration; an increase in incarceration
adds more time spent away from community and family,
which then makes transition back to the community from
prison more difficult, thus potentially increasing the
likelihood of returning to prison. The cycle repeats itself
and notably, negative cyclical effects are concentrated
on Native Hawaiian communities.
Crucial first steps in efforts to reduce the
overrepresentation of Native Hawaiians in the criminal
justice system involve obtaining accurate and current

data and then using the data to identify who is being
affected and when in the criminal justice process
(e.g. arrest, charging, sentencing, incarceration, etc.).
Subsequent steps include determining how those policies
create those effects. We use this strategy in this section
of the report with data gathered from national, state,
and jurisdictional sources. Some of the data included
in this section is a comprehensive, multi-agency dataset
compiled by the Hawai‘i Criminal Justice Data Center.

This is anecdotal, but you
are going to find more police
surveillance in Nänakuli than you
will in Hawai‘i Kai.
(Community Advocate)

28 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Arrests are the primary entry point to
the criminal justice system and set off a
chain of events that can propel a person
further into the system. According to the
Federal Bureau of Investigation, 52,818
arrests were made in Hawai‘i in 2008. The
majority of these arrests are for offenses
classified as “other,” but of the remaining
offenses, 2.5 percent were for violent
offenses, 8.5 for property offenses, and
3.8 for drug offenses.74 The FBI does not
disaggregate data to capture the number
of Native Hawaiians arrested.
However, data from Hawai‘i’s Attorney
General show that Native Hawaiians
are arrested at a greater frequency
than Hawai‘i’s other ethnic groups,
often second only to Whites in specific
offense categories.75 Native Hawaiians
are disproportionately represented in the
arrest phase as they make up 24 percent of
the general population, but 25 percent of
arrests. Whites, too, are disproportionately
arrested compared to their membership
in the general population (37 percent
of arrests versus 20 percent of general
population). However, given that Hawai‘i
is a popular tourist destination, it is possible
that visitors account for a portion of these
arrests. In fact, according to data from the
Hawai‘i Criminal Justice Data Center, 69
percent of White people who were arrested
between 2000 and 2008 were born outside
Hawai‘i. Comparatively, only 6 percent
of Native Hawaiians arrested in the same
time period were born outside Hawai‘i.76

page-28-pIe

Native Hawaiians account for 25 percent of all arrests in Hawai‘i in 2008,
although they are approximately 24 percent of the general population.
White
Chinese

20%

Japanese

(9,789)

37%

filipino

(17,865)

Native Hawaiian
Other

25%

(12,165)

(638)

11%

(5,172)

(2,598)

Source: Lydia Seumanu Fuatagavi and Paul Perrone, Crime in Hawai‘i: A Review of Uniform
Crime Reports (Honolulu, HI: Attorney General, State of Hawai‘i, 2009). http://hawaii.gov/ag/
cpja/main/rs/Folder.2005-12-05.2910/copy_of_cih2007/Crime%20in%20Hawaii%202007.pdf
page-28 bar

In 2009, Native Hawaiians, like people of other races and
ethnicities, were most likely to be arrested for “other” offenses,
which include DUI, offenses, probation and parole violations.
100%
90%
80%

PerCeNt Of arrests

Arrest

70%

73%

74%

72%

73%

5%
11%
11%

5%
9%
12%

5%
11%
10%

4%
12%
12%

5%
11%
12%

4%
8%

4%
11%

15%

12%

WHIte

CHINese

JaPaNese

fILIPINO

HaWaIIaN

OtHer

tOtaL

60%
50%
40%
30%
20%
10%
0%

Violent

Property

Drug

Other

More recent data from the Hawai‘i Attorney General
shows that people across racial and ethnic groups,
including Native Hawaiians, are most likely to be
arrested for “other” offenses, including probation and
parole violations, driving while under the influence,
gambling, and a variety of other incidents that do not
fit into the other categories. Twelve percent of Native
Hawaiians who were arrested in 2009, were arrested for
violent offenses, which is comparable to the percent of
all arrests for violent offenses in that year .77

In addition, the majority of arrests (81 percent) for all
offenses occur in Honolulu County,78 the most populous
county and the county that sends the greatest number of
people to prison.79
By examining the median age of first arrest, it is possible
to see whether the range of ages at which people are
arrested are skewed one way or another. The median
age of first arrest for Native Hawaiian women is three
years younger than the median age of first arrest for

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 29

The median age of first arrest for Native Hawaiian men and women is three years younger and five years
younger, respectively, than for White men and women.
Race/Ethnicity
Tongan
Black
Native American
Micronesian
Filipino
Samoan
Hispanic
Other
Hawaiian
Japanese
Unknown
White
Korean
Chinese

Median Age of Women
23.27
26.22
28.05
28.44
28.7
29.04
31.25
31.58
31.65
31.82
32.93
34.91
38.13
43.18

Race/Ethnicity
Tongan
Samoan
Other
Micronesian
Unknown
Hispanic
Hawaiian
Black
Filipino
Korean
Japanese
White
Chinese
Native American

Median Age of Men
24.92
27.81
28.32
28.59
29.57
30.19
30.59
31.2
32.25
34.15
34.99
35.73
36.1
38.26

SOURCE: Hawai‘i Criminal Justice Data Center, 2000-2008 Note: The median value is the middle value in a set of values.

White women and for Native Hawaiian men, five
years younger than White men. The difference is more
pronounced compared to the median age of arrest of
Chinese men and women: the median age of first arrest
for Native Hawaiian men is eight years younger and for
women, it is 12 years younger. Contact with the criminal
justice system at a younger age, even if the difference is
only a few years, may increase the chances that a person
is likely to come into contact with the criminal justice
system again in the future.80

Charges
After a person is arrested, the police issue an arrest
report to the prosecutor’s office with a suggestion of
appropriate charges. The prosecutor’s office decides
whether to file charges and, if so, for what offenses and
the severity of the charge (felony or misdemeanor). A
person can have multiple charges filed against him or her
for a single arrest.
Prosecutors have some discretion in determining what
charges are filed against a person; this decision can affect
a host of other criminal justice outcomes. Depending on
the law and practice of the jurisdiction, the severity of the
charge dictates the court process and the potential term
of imprisonment. The more severe the charge, the more

You are cultivating worse
offenders, by taking a young
19-year-old boy and giving him
five years with the hardcore guys.
(Community Advocate)
likely a person will receive a prison sentence, which,
then triggers a host of negative consequences related
to life outcomes, family well-being, and community
engagement.
Charges also serve as a benchmark for entry into the
system. Charges filed will have more variability across
racial and ethnic groups because the charge often reflects
circumstances related to the offense and the environment
in which the offense occurred. Although there is discretion
used throughout the system, once a charge is filed, it is
an institutional marker and, theoretically, there should be
more consistency in the way people with similar charges
are treated throughout the system. In other words, people
of different racial and ethnic groups with similar charges
and similar offense histories should receive similar
sentences. As this report shows, that is not necessarily
the case.

30 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

In 2008, about half of charges for all races and ethnicities result in a sentence of incarceration.
100%

Percent of all of charges

90%
80%

9%
6%

10%

12%

70%
60%

7%
4%
1%

23%

27%

5%
9%
12%
5%

6%
6%

3%
8%

3%
3%

11%

17%

23%

20%

58%

55%

57%

White

Native
Hawaiian

Other

3%
3%

24%

50%
40%
30%
20%

43%

52%

43%

10%
0%
Chinese

Filipino

Japanese

Incarceration
Community Service
Probation Only
Probation and Fine

Incarceration and Probation
Community Service and Probation
Community Service and Fine

Source: Hawai‘i Criminal Justice Data Center, 2008
Note: In Hawai‘i, a condition of probation may include up to a year of incarceration for a felony offense and up to six months for a misdemeanor offense.

According to 2008 data from the Hawai‘i Criminal
Justice Data Center, more than half (55 percent) of
charges filed result in a sentence of incarceration, with or
without another type of sentence such as probation, fine,
or community service; this percentage closely reflects
the sentencing outcome of charges across races and
ethnicities, including Native Hawaiians. Although this
graph does not include information about offenses and
it does not show overly dissimilar patterns of sentencing
outcomes from other races and ethnicities, it is important
to consider the frequency with which charges result in
incarceration and the impact it has on those individuals,
their families, and their communities.

She has children –you want to bail
her out. But it is not like you have
an extra $500 to try to help.
(‘Ohana of pa‘ahao)

Pretrial Detention
In Hawai‘i, the jail system is operated by the state.
Traditionally, jails hold people who either are serving a
sentence of less than a year or who are being held pretrial
because they have been determined to be a danger to
public safety or themselves or there is a concern that
they will not return for trial. Prisons, on the other hand,
are meant to hold people who receive a sentence for
more than a year and are usually designed for long-term
incarceration. Hawai‘i has four jails, called Community
Correctional Centers, one for each county.81 Because
jails are included in the total correctional count, it is
difficult to tell how many people are housed in these jails
on any given day.
People held pretrial, that is, those who have not been
convicted of a current offense, generally make up about
60 percent of traditional jail populations nationwide.82
According to data from the Hawai‘i Criminal Justice
Data Center, approximately 4,423 people were admitted
to jail pretrial during 2009,83 which is about 74 percent
of all admissions to prison or jail. People held pretrial
may be there because they were not released on their

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 31

Native Hawaiians made up one-third of admissions to pretrial detention
in 2009, but are 24 percent of the general population.
35%

33%

30%
25%

24%

25%

25%
23%

Percent

20%
20%

18%

15%

11% 12%

10%
5%

4%
1%

0%
Native
Hawaiian

White

Japanese

Pretrial Admissions

Filipino

Chinese

Other

General Population

Source: Hawai‘i Criminal Justice Data Center, 2009 and Hawai‘i State Department of Health, Office of Health Status Monitoring, special tabulation from the
Hawai‘i Health Survey, January 22, 2010. http://hawaii.gov/dbedt/info/economic/databook/2008-individual/01/;

own recognizance, not granted bail, or they could not
afford bail if it was granted.
Pretrial detention can have a variety of negative effects
on a person, including loss of a job, interruption
of education, and disconnection from family and
community. In addition, pretrial detention is associated
with a higher likelihood of being found guilty84 and
receiving a sentence of incarceration over probation,85
thus forcing a person further into the criminal justice
system.
Native Hawaiians are disproportionately held pretrial
compared to the percent of Native Hawaiians in the
general population or the percent of people arrested who
are Native Hawaiian.86 In 2009, Native Hawaiians made
up 33 percent of admissions to pretrial detention,87 while
comprising only 24 percent of the general population.88

Sentencing
An analysis of data from the Hawai‘i Criminal Justice
Data Center, controlling for age, gender and type of
charge, found that for any given determination of guilt,
Native Hawaiians are much more likely to get a prison
sentence than almost all other groups, except for Native

Americans. In particular, charged Japanese are roughly
50 percent (0.498) as likely as Native Hawaiians to be
sentenced to prison, while Filipinos are only about 63
percent (0.634) as likely as Native Hawaiians to get
this severe punishment. Importantly, the other major
group of defendants in Hawai‘i, Whites, are only about
67 percent (0.674) as likely as Native Hawaiians to be
incarcerated if judged guilty. In real terms, this means
that for White defendants, two of three found guilty are
incarcerated. For Native Hawaiian defendants, three of
those three are incarcerated. While not quite as powerful
of a model to explain the disproportionality of Native
Hawaiians, the variables used in the model (age at arrest,
gender, and charge) explain roughly 20 percent of the
disproportionate results.
This analysis is particularly important because it is a
reflection of the potential that subjectivity and discretion
in the judicial system plays in the determination of guilt,
and then, also regarding the type of punishment.

Admissions
Prison populations can be measured in two ways: who
is being admitted to prison, which could be a reflection
of sentences handed down in a given time period, and

32 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

For any given charge, Native Hawaiians are more likely to be sentenced to prision
than any other racial or ethnic group other than Native Americans.
120%
120%
100%

100%

97%
81%

80%

70%

67%

63%

60%

50%

49%

47%

41%

40%

39%

20%

n
ga
To
n

sia
ne

cro

ine
Ch

n
Ko

rea

se
ne

no
ipi
Fil

ite
Wh

r
he
Ot

ic
an
sp
Hi

an
mo
Sa

ac
Bl

aii
aw

eH
tiv

tiv

ric

Source: Hawai‘i Criminal Justice Data Center, 2000-2008. The analysis and raw coefficients on which this chart was generated are available in Appendix C.
Note: This is not to say that 100 percent of Native Hawaiians receive incarceration sentences, but only to illustrate the rates of other groups’ incarceration
compared to the rate at which Native Hawaiians are incarcerated.

In 2009, Native Hawaiians were overrepresented in admissions to custody
by 12.3 percentage points; more than any other race or ethnicity.
40.0%
35.0%

36.3%

30.0%

Percent

25.0%

24%

20.0%

23.4%

21.9% 23%

20%

18%

15.0%

12.2% 12%

10.0%

5.3%

5.0%

0%
Native
Hawaiian

White

Percent of admissions custody

Japanese

Filipino

Chinese

Other

Percent of General Population

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 33
page-33a

who is in prison, which counts all people in the prison
a single day whether they have been there for two days
or 20 years. Studying admissions gives a picture of the
actions to confine a person to the criminal justice system
in a given year and may also capture repeated entries
into the system. Recommendations related to courts and
sentencing can come out of admissions data.
According to data from the Hawai‘i Criminal Justice Data
Center, in 2009 there were 6,005 admissions to prison or
jail in Hawai‘i. That number includes admissions from
the state court agency, as well as counties. The number
also includes admissions for new offenses and technical
violations while a person is on parole or probation.
Racial disparities are evident in admissions as well:
Native Hawaiians made up 36.3 percent of admissions
to custody in 2009, but were 24 percent of the general
population.
The increase in overrepresentation of Native Hawaiians
by three percentage points from detention to admissions
to incarceration is notable because they are the only
group that experienced such a significant increase in
overrepresentation from pretrial detention. The reasons
for this are more fully explored in a subsequent section,
but could include the disproportionate representation
of Native Hawaiians in entries or returns to prison for
probation or parole violations, repeated entries and
reentries to facilities, and the increased likelihood that
Native Hawaiians are held pretrial.

Probation
In 2009, 19,097 people were on probation in Hawai‘i. The
rate of people on probation in Hawai‘i (1,890 people per
100,000) was slightly higher than the national average
(1,845 per 100,000). Hawai‘i has the 18th highest rate
of people on probation in the U.S.89 According to Adult
Client Services Branch of the First Circuit Court, in 2009,
approximately 27 percent of the people on probation
were Native Hawaiian or Pacific Islander.90 Considering
the other data used in this report, Pacific Islanders make
up a small number of this proportion, thus changing the
total proportion very little.
Although it is difficult to tell exactly how many Native
Hawaiians are on probation in any given year, data from
the Hawai‘i Criminal Justice Data Center show that,
in 2008, of the 1,826 charges filed that resulted in a
sentence of probation, 486 (27 percent) were filed against

Of all the charges that resulted in a sentence of probation in
2008, 27 percent were charges filed against Native Hawaiians.

1%
(27)

11%
(206)

33%

Chinese
Filipino

Japanese

(112)

(598)

White
Native Hawaiian

22%

Other

(397)

27%
(486)

Source: Hawai‘i Criminal Justice Data Center, 2008
Note: Includes sentences that include probation only, community service and
probation, and probation and fine. This graph does not include people who
were sentenced to incarceration and probation because they would serve time
in incarceration before being released to probation.
page-33B

Native Hawaiians make up the largest proportion of people
returned to prison for probation violations in 2009.

1%
(7)

20%
(168)

13%
(109)

Chinese

5%
(44)

Filipino
Japanese
White

21%
40%

(172)

Native Hawaiian
Other

(339)

Source: Hawai‘i Criminal Justice Data Center, 2009

Native Hawaiians. Although, a measurement of charges
that result in a sentence of probation is not the ideal
way of determining the number of Native Hawaiians
on probation at any given time, it does provide some
indication of the likelihood that charges filed against
Native Hawaiians will result in a sentence of probation.
At the same time, Native Hawaiians made up the largest
percentage of people going to prison for probation
violations. In 2009, 40 percent of the people sent to
prison for a probation violation were Native Hawaiian.91
It is difficult to ascertain whether this percentage is

34 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

All other racial and ethnic groups, except for Hispanics, receive shorter probation sentences than Native Hawaiians.
Hisapnic,**66.27
Chinese, -0.12
Korean, -4.5
Japanese,* -14.1
Filipino,** -14.58
Other,**-15.93
Native American, -18.18
White,**-20.94
Unknown, -22.89
Black,**-24.72
Micronesian, -35.46
Samoan,**-39.78
Tongan,**-71.1

-80

-60

-40

-20

Native Hawaiians are comparison point.
Source: Hawai‘i Criminal Justice Data Center, 2000-2008
Note: ** indicates significance at the .05 level. * indicates significance at the .10 level.
Days are calculated assuming a 30-day month. The analysis and raw coefficients on which this chart was generated are available in Appendix D.

disproportionate to the number of Native Hawaiians
on probation since the number of Native Hawaiians on
probation could not be collected at this time; however, it
is disproportionate to the general population and to the
percent of charges that were filed for Native Hawaiians
that resulted in probation. Even comparing Native
Hawaiians who have their probation revoked to the
percent of people on probation who are Native Hawaiian
or Pacific Islander yields a distinct disproportionality:
40 percent compared with 27 percent.
A multivariate analysis controlling for severity of
the charge, age, gender, and race shows that Native
Hawaiians also serve more time on probation than
other racial and ethnic groups, except for Hispanics. On
average, a Japanese person is sentenced to 14 fewer days
of probation than a Native Hawaiian person and Whites
are sentenced to nearly 21 fewer days of probation
than Native Hawaiians. The analysis conducted using
data from the Hawai‘i Criminal Justice Data Center
also shows that those factors included in the model
accounted for 70 percent of differences in sentence. This
finding can have spill-over effects into other parts of the
criminal justice system, because as Native Hawaiians

spend more time on probation, there is more time for
them to potentially be sent to prison or jail for violating
the terms of probation.
Most admissions to prison from probation are not for new
offenses, but from failure to meet the terms of probation.92
The rules of probation and how they are enforced vary
across jurisdictions and even among probation officers,
and can include failing to report to a probation officer,
moving without notice, or testing positive on a drug test.
Research shows that sentences to prison from community
supervision, which includes probation and parole, can
be the result of a subjective assessment on the part of a
probation officer or the culmination of disadvantages that
make it difficult to comply with the terms of community
supervision.93 For example, it may be difficult for a person
who must report to a community supervision office during
the day and leave a job for that meeting, especially when
maintaining employment might be a term of community
supervision. Supportive systems which help people
succeed while on probation, rather than waiting for them
to violate the terms of probation may reduce the chances
that a person is sent to prison whether for a new sentence
or a technical violation.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 35

Project HOPE
(Hawai‘i’s Opportunity Probation with Enforcement)
Project HOPE (Hawai‘i’’s Opportunity Probation with Enforcement), founded by Judge Steven Alm as a pilot
project in 2004, has shown promise in achieving its stated goals of reducing drug use, new offenses, and
incarceration. In an evaluation of HOPE, probation officers identified 493 people on probation to participate in
the study. In a random assignment, 330 individuals were placed into HOPE and 163 individuals served a traditional
probation sentence. The results of the evaluation, published in December 2009, show reductions in positive drug
tests, fewer missed appointments, and a lower likelihood that HOPE participants would be arrested in subsequent
months.
Project HOPE achieves its objectives by first issuing clear and direct expectations for participation and then
subsequently applying swift and certain sanctions for non-compliance – generally, jail time – with the terms of
participation in Project HOPE. Treatment is not forced upon participants unless a participant either requests a
referral to treatment or continuously tests positive for drugs. People participating in HOPE only appear before the
court if they violate the terms of the Project.
Sixty-five percent of the people participating in Project HOPE are Asian/Polynesian, which includes Native
Hawaiian people. Project HOPE potentially provides an alternative to incarceration and an additional access
point to treatment without using incarceration to access treatment. However, more research needs to be done
to evaluate whether outcomes for Native Hawaiians are equal to those of the population as a whole, and if
not, to examine what aspects of the program might disadvantage people in this group (for instance, difficulty in
getting to urinalysis sites due to lack of public transportation). Since Project HOPE is still relatively new, long term
effects on behavior are not available. While the program appears to have been successful for people while they
are enrolled in terms of reduced drug use and low re-arrest rates, research has yet to be conducted as to what
happens after participants complete the program. In addition, more research should be done to determine
whether responses other than incarceration might be as effective, but also have lower costs in terms of dollars
and the impact that it has on a person whose life is further disrupted by time spent in jail.
Sources: Angela Harkin and Mark Kleinman, Managing Drug Involved Probationers with Swift and Certain Sanctions: Evaluating
Hawai‘i’s HOPE (Washington, DC: National Institute of Justice, 2009). www.ncjrs.gov/pdffiles1/nij/grants/229023.pdf
Pew Center on the States, The Impact of Hawai‘i’s HOPE Program on Drug Use, Crime and Recidivism (Philadelphia, PA: Pew
Charitable Trusts, January 2010). www.pewcenteronthestates.org/uploadedFiles/PSPP_HOPE_Brief_web.pdf?n=8765

I could easily just fall right down. It’s like I am a tree-climber with no
equipment sometimes. Every day is a struggle.
(Former Pa‘ahao)

36 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Although 24 percent of the general population in Hawai‘i is Native Hawaiian, 39 percent of the people
under the custody of the Hawai‘i Department of Public Safety are Native Hawaiian.
45%
39%

40%
35%

Percent

30%
25%

24%

20% 23%

22% 21%

18%

20%
15%

12% 12%

10%
5%

4% 1%

0%
Native
Hawaiian

White

Japanese

General Population

Filipino

Chinese

Other

Custody Population

Source: Hawai‘i State Department of Health, Office of Health Status Monitoring, special tabulation from the Hawai‘i Health Survey, January 22, 2010. http://
hawaii.gov/dbedt/info/economic/databook/2008-individual/01/ and Hawai‘i Department of Public Safety, 2008 Annual Report (Honolulu, Hawai‘i, Department
of Public Safety, 2008). http://hawaii.gov/psd/administration/publications/annual-reports/department-of-public-safety/PSD-AnnualReport2008.pdf

Incarceration
An assessment of the disproportionate incarceration
of Native Hawaiians is central to understanding the
overall impact of the criminal justice system on Native
Hawaiians because incarceration is particularly damaging
and expensive in the long term. Incarceration removes
people from their families, communities, jobs, and
education. It has been found to disrupt life outcomes,94
and with a conviction or criminal record, it triggers an
array of collateral consequences that make it difficult
to transition back to the community.95 Given particular
considerations of Hawaiian cultural values related
to family, community and connectedness, Hawai‘i
incarcerates a high proportion of women. Hawai‘i also
holds approximately 50 percent of the people sentenced
to a year or more on the continental United States (1,940
out of 3,831).96 Including people held by the federal
government increases the percentage to 60 percent.97
The effects of incarceration
are even more significant as
it severs and disconnects the
family unit.
On December 31, 2008,
Hawai‘i, due to its combined

prison and jail system, incarcerated 5,955 people,
an increase of 17.8 percent since 2000.98 Hawai‘i’s
incarceration rate of 332 people in prison per 100,000
in the general population is lower than the national
average of 504 per 100,000, but higher than 16 other
states, including other Western states, like Washington,
New Mexico, and Utah.99 Notably, women in Hawai‘i
are more impacted by incarceration than in any other
state. In Hawai‘i, women make up a larger proportion
(13 percent) of the prison system than any other state in
the country.100
People describing themselves as Native Hawaiian made
up approximately 24 percent of the state’s population
in 2008.101 However, Native Hawaiians constitute a
disproportionate percent of the state’s corrections system,
representing nearly 40 percent of all people under the
custody of the Hawai‘i Department of Public Safety
(PSD) in 2008, both in prisons within the state and in
contracted facilities in
other states.102 Native
Hawaiians are the only
racial or ethnic group
that experiences such a
severe disproportionate
impact,
and
this
disproportionality
is
(Former Pa‘ahao)

When I got to Halawa there was
a lot of brothers I hadn’t seen for
the longest time. This is where
they were.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 37

Native Hawaiians are incarcerated at nearly twice the rate of Whites in Hawai‘i in 2008.
Comparatively, indigenous communities, on average, in the United States are only slightly overrepresented.
HAWAI‘I

UNITED STATES
NEW MEXICO
WASHINGTON STATE
ARIZONA
SOUTH DAKOTA
IDAHO

Ratio Native Hawaiian
to Whites

Whites

Native Hawaiians
(per 100,000)

(per 100,000)

770
American Indians/
Alaskan Natives (per 100,000)
576
215
393
571
1276
804

473
Whites

(per 100,000)

487
89
173
275
176
379

1.62
Ratio American Indians/Alaskan
Native to Whites
1.18
2.41
2.27
2.07
7.25
2.12

Source: Heather C. West, William J. Sabol, and Matthew Cooper, Prisoners in 2008 (Washington, D.C.: Bureau of Justice Statistics, 2009) http://bjs.ojp.usdoj.gov/
content/pub/pdf/p08.pdf, Todd D. Minton Jails in Indian Country, 2008 (Washington, D.C.: Bureau of Justice Statistics, 2009). http://bjs.ojp.usdoj.gov/content/
pub/pdf/jic08.pdf; Department of Business, Economic Development, and Tourism, The State of Hawai‘i Data Book 2007 (Honolulu, Department of Business
Economic Development and Tourism, 2008). Hawai‘i Department of Public Safety, 2008 Annual Report (Honolulu, Hawai‘i, Department of Public Safety, 2009).
http://hawaii.gov/psd/administration/publications/annual-reports/department-of-public-safety/PSD-AnnualReport2008.pdf, New Mexico Corrections Department,
“2008 Annual Report,” News and Publications, 2008, http://corrections.state.nm.us/news/2007-2008%20Annual%20Report.pdf
State of Washington Department of Corrections, “Statistical Brochure - Fiscal Year 2008,” Measures and Statistics, 2008, www.doc.wa.gov/aboutdoc/
budget/docs/statistics/DOCStatisticalBrochure-Jul08.pdf. Bill Lamoreaux, email message to (me), June 7, 2010, (Arizona Department of Corrections,
media@azcorrections.gov). South Dakota Department of Corrections, “Annual Report, FY 2008: Adult Inmates,” Publications, 2008, http://doc.sd.gov/
about/publications/documents/FY2008AnnualReportFinal.pdf. Idaho Department of Correction, “Standard Report for May 2008,” Population Statistics,
2008, www.idoc.idaho.gov/facts/monthly_stats/StandReportMay08.pdf.
Notes: The U.S. rate of incarceration for American Indians and Alaskan Natives includes federal, state, local jail, and tribal jail facilities. Rates for individual
states include only state-run facilities. Calculation of all U.S. rates for American Indians and Alaskan Natives uses a population estimate of 3,083,434 from
the U.S. Census cited in Jails in Indian Country, 2008.

even greater than that seen in pretrial detention and
admissions to prison.
National comparisons
The disproportionate impact of the criminal justice
system and incarceration frequently falls on people of
color across the U.S., including Native Hawaiians and
other indigenous groups. Native Hawaiians and other
indigenous groups, like American Indians and Alaskan
Natives are overrepresented in prisons. But on average,
indigenous people in the United States are slightly
less overrepresented in the prison system than Native
Hawaiians in Hawai‘i; Native Hawaiians are incarcerated
at over one and a half times the rate of Whites (1.62).
However, a state by state comparison of incarceration
rates of American Indians and Alaskan Natives compared
to Whites shows that in some states, especially those
with higher indigenous populations, indigenous people
are more overrepresented. The disproportionate impact
of incarceration on indigenous communities in the

United States appears to be an endemic problem, not
only affecting Native Hawaiians. The states included in
the accompanying table were chosen because they have
significant numbers of indigenous people in the general
population and also had disaggregated data available.
National repositories of data on prison populations do
not disaggregate data to include Native Hawaiians as
a group, so it is difficult to tell the disproportionate
impact of the national criminal justice system on
Native Hawaiians. However, the impact of the Hawai‘i
criminal justice system on this group is clear, compared
to incarceration rates for other races and ethnicities
across the country. The degree of disproportionality for
Native Hawaiians is not as severe as it is for African
Americans, for example, but more severe than for
Hispanics. African Americans made up 12 percent of the
U.S. general population, but 37 percent of the people
in prison, a disproportionality of 25 percentage points.
Native Hawaiians in Hawai‘i made up 24 percent of the
general population and 39 percent of people in prison,

38 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

The disproportionate representation of Native Hawaiians in prison is not as severe
as it is for Blacks, nationally, but is more pronounced than that for Hispanics.
100%

100%
90%

90%

Percent of U.S. Population

74%

80%

Percent Incarcerated in the U.S.

70%

Percent Incarcerated in Hawai‘i

70%

60%

50%
37%

40%

41%

50%

30%
20%

Percent of Hawai‘i Population

22%
15%

12%

10%

39%

40%
30%
8%

24%

20%
10%

0%
Black

White

Hispanic

American
Indian/Alaska
Native

0%
Native Hawaiian

Source: Hawai‘i Department of Public Safety, 2008 Annual Report (Honolulu, Hawai‘i, Department of Public Safety, 2009). http://hawaii.gov/
psd/administration/publications/annual-reports/department-of-public-safety/PSD-AnnualReport2008.pdf, Heather C. West, William J. Sabol,
and Matthew Cooper, Prisoners in 2008 (Washington, D.C.: Bureau of Justice Statistics, 2009) http://bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf,
Todd Minton, Jails in Indian Country, 2008 (Washington, DC: Bureau of Justice Statistics, 2009)., U.S. Census, “American Community Survey
Factfinder: 2006-2008,” January 24, 2010., Department of Business, Economic Development, and Tourism, The State of Hawai‘i Data Book 2007
(Honolulu, Department of Business Economic Development and Tourism, 2008).
Note: Data for American Indians/Alaska Natives are from 2006 and do not include tribal jails. Additionally, national data includes only people
sentenced to federal and state prisons.

a 15 percentage point disproportionality, which is 10
percentage points lower than the African American
disproportionality, but 8 percentage points higher than the
Hispanic disporportionality of 7 percent.103 However, the
opposite is true for Whites. Whites made up 74 percent
of the U.S. general population, but only 41 percent of the
people in prison.
Given the 709 percent increase in the incarceration rate
in Hawai‘i over the last 30 years compared to the 262
percent increase in the national incarceration rate, it is
worth considering that the increase in the incarceration
rate of Native Hawaiians over the same time frame is
greater than that for any other racial or ethnic group in
the United States.104

severity of charge, age at arrest, and gender of the person
charged, Native Hawaiians are sentenced to 119 days

Most families can’t fly up to
Arizona to see their dad. They
can’t afford it, but we have
roughly half of the Hawai‘i
prison population there.

Sentence length
Contributing to the disproportionate number of Native
Hawaiians in prison compared to the general population
is the length of the prison sentence. Controlling for

(Community Advocate)

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 39

Women in prison
While Native Hawaiian men and women are both disproportionately represented in Hawai‘i’s criminal justice
system, the disparity is greater for women. Forty-four percent of the women incarcerated under the jurisdiction
of the state of Hawai‘i are Native Hawaiian. Comparatively, 19.8 percent of the general population of women in
Hawai‘i identify as Native Hawaiian.

Native Hawaiian women make up a larger proportion of the total number of women under the custody
of the Hawai‘i Department of Public Safety than Native Hawaiian men.
50%
45%
40%
35%
30%
25%
20%
15%
10%
5%
0%

44%
37%
27%
22%

Native
Hawaiian

White

Males
Females

28%
20%

Asian/Pacific
islander

4% 3%

6% 4%

Black

Other

2% 2%
Not reported

Source: Office of Hawaiian Affairs, “Databook 2006: Public Safety,” March 2006. www.oha.org/pdf/databook/2006/DataBook2006PublicSafety.pdf.

Scholars, including Meda Chesney-Lind from the University of Hawai‘i and Patricia VanVoorhis of the University of
Cincinnati, theorize that the prison system has a unique impact on women that leads to more women returning to
prison, resulting in continuing increases in the number of women in prison. The prison system is primarily designed
for men, not taking into account the unique mental and physical health needs of women. Risk assessments
determining classification status of women, which, in turn, determines custody level and closeness to release, do
not take into account research that generally finds women to be less likely to engage in illegal behavior upon
release than men. Also, scholars theorize that prison systems generally operate to supervise and monitor women
more closely, which results in more disciplinary actions for more minor offenses than men.
Research shows that women of color and native women bear the disproportionate burden of incarceration
compared to White women. Women of color contend with the cultural stereotypes related to drug use, poverty,
gender, and race that limit access to opportunities that improve life outcomes overall.
As will be discussed in a subsequent section of this report, the imprisonment of women has important
repercussions for families, particularly Native Hawaiian families, which contribute to a cycle of contact with the
criminal justice system.
Sources:
U.S. Census Bureau, “Hawai‘i, S0201. Selected Population Profile, Native Hawaiian alone or in any combination, 2006-2008
American Community Survey,” December 31, 2009.
Patricia Van Voorhis, Technical Assistance Provided to Review the System for Classifying Incarcerated and Re-entering Women
Offenders (National Institute of Corrections, 2008).
Natasha A. Frost, Judith Greene, and Kevin Pranis, Hard Hit: The Growth in the Imprisonment of Women, 1977 – 2004 (New York,
NY: Institute on Women and Criminal Justice, 2006). http://66.29.139.159/institute/hardhit/HardHitReport4.pdf.

40 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Native Hawaiians are sentenced to more days in prison than most other racial or ethnic
groups in Hawai‘i, when controlling for gender, age and severity of charge.
Tongan,*-119.91
Native American,** -73.86
Hispanic,** -68.58
Micronesian, -42.45
Other, -18.54
White, -11.28
Unknown, -10.83
Filipino, -9.3
Japanese, 20.88
Korean,* 53.19
Black,** 117.15
Samoan,** 121.23
Chinese, ** 195.12
-150

-100

-50

100

150

200

250

Native Hawaiians are comparison point.
Note: ** indicates significance at the .05 level. * indicates significance at the .10 level.
Days are calculated assuming a 30-day month. The analysis and raw coefficients on which this chart was generated are available in Appendix E.

more in prison than Tongans, 73 more days than Native
Americans, and 68 days more than Hispanics, all of which
are statistically significant.105 Whites get 11 fewer days in
prison than Native Hawaiians. Although not statistically
significant, this finding still serves as a strong indicator
of a disproportionately long incarceration for Native
Hawaiians when compared to Whites. This model using
data from the Hawai‘i Criminal Justice Data Center also
shows that the included factors explain 43 percent of
differences in sentences. The remaining 43 percent of
differences could include offense background, which
was not available for analysis in this study.

Hawai‘i is their home. When you
take them away like that, you
mess them up even more.
(Former Pa‘ahao)

In addition to Native Hawaiians receiving longer
sentences than other racial and ethnic groups, they are also
more likely to receive consecutive sentences compared
to any other racial or ethnic group. Whites receive the
next highest number of consecutive sentences. Between
2000 and 2008, Native Hawaiians received 48 percent
more consecutive sentences than Whites during the
same time period.106 Consecutive sentences are served
one after the other, as opposed to concurrent sentences
that are served at the same time. Consecutive sentences
increase the burden of punishment as it keeps people in
prison longer.
Incarceration on the continent
The Hawai‘i the Department of Public Safety (PSD)
contracts with prisons in other states to hold people
under its custody. Native Hawaiians make up the
highest percentage of people incarcerated in out-of-state
facilities. In 2005, of the 6,092 people who were under
the custody of PSD, which includes people in jails,
29 percent (1,780) were in facilities operated by other

page-41

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 41

In 2005, Native Hawaiians were most
overrepresented in out-of-state prison facilities.
120%
100%

22%

60%

38%

41%

27%

25%

23%

21%

General Population

In State Facilities

Out-of-State Facilities

20%

Other
Native Hawaiian
Asian/Other Pacific
Islander

32%

Black
White

Source: Office of Hawaiian Affairs, “Databook 2006: Public Safety,” March 2006. www.oha.org/pdf/databook/2006/DataBook2006PublicSafety.pdf
and Department of Business, Economic Development, and Tourism, The State of Hawai‘i Data Book 2008 (Honolulu, Department of Business Economic
Development and Tourism, 2008). http://hawaii.gov/dbedt/info/economic/databook/db2007/section01.pdf

states or private companies on behalf of states. Of the
people in out-of-state facilities, 41 percent are Native
Hawaiian.107
After allegations of sexual abuse in a women’s facility in
Kentucky, Hawai‘i returned approximately 168 women to
prisons in Hawai‘i in September of 2009,108 but no new
policies prevent women from being sent to the continent in
the future and, as of July 2010, one woman, who is Native
Hawaiian, still remains in a facility on the continent.
As of spring 2010, approximately 1,954 men were still
being held in two private, for-profit facilities in Arizona,
Saguaro and Red Rock. Concerns about conditions in the
facility were reinforced after the murders of two men, one
in February 2010109 and another in June 2010.110
The impact of incarceration on the continent, as it
contributes to trauma and the perpetuation of the cycle of
involvement in the criminal justice system, is considered
in a subsequent section.

Parole and re-entry
Parole can be considered a good strategy to safely release
people into the community and provide services with
supports that ensure that a person does not return to prison.

Hawai‘i includes in its parole handbook that parole is not
supposed to be solely for the purpose of supervision, but
also for providing guidance to find a job, housing, and
other social supports.111 In addition, a recent commitment
by the Interagency Council on Intermediate Sanctions to
reduce the rate of recidivism of people on parole by 30
percent has, thus far succeeded in reducing the re-arrest,
revocation, or technical violation rate by 21.7 percentage
points from 72.9 percent in 1999 to 51.2 percentage points
in 2006.112 The Hawai‘i Paroling Authority is meeting this
goal by using evidence-based assessments and treatment
approaches, which include training parole officers and
staff to address the needs of clients related to reducing the
chances of committing another offense by “meeting people
where they are” and providing them sufficient support to
be successful.
Nonetheless, parole revocations, whether for violations
of the terms of parole (i.e. failing to appear for a meeting
with a parole officer or failure to maintain employment) or
for a new offense, add many people to the prison system.
According to federal statistics, slightly more than half of
admissions to Hawaiian prisons are for parole violations.113
New convictions while on parole are relatively infrequent,
but most of those convictions are for property offenses.114

42 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

For every five Native Hawaiians released on
parole in 2009, two had their parole revoked.

Native Hawaiian
Chinese
Filipino
Japanese
White
Other
TOTAL

Releases

Revocations

251
16
66
31
134
146
644

102
2
24
13
49
59
249

Ratio of Releases
to Revocations

2.5
8.0
2.8
2.4
2.7
2.5
2.6

Source: Hawai‘i Criminal Justice Data Center, 2009.
Note: Revocations include only violations of the terms of parole and not
new offenses.

Although Hawai‘i released 644 people from prison to
parole in 2009, 249 people were also returned to prison by
revoking parole. Native Hawaiians had one of the lowest
ratios of release to revocations. For every five Native
Hawaiians released, two Native Hawaiians had their parole
revoked (2.5:1 ratio), with Japanese people having a slightly
lower ratio and Chinese people having the highest, with
eight people being released for every one person returning
to prison on a parole revocation.
Other research is mixed on the relationship between race
and ethnicity and the chances that a person will return to
prison after release in Hawai‘i. A 2001 study showed that
Whites were more likely to have their parole revoked than
Native Hawaiians or Pacific Islanders,115 however, these
findings were not statistically significant. In a 1999 study,
Native Hawaiians were found to be more likely to have
their parole revoked.116 In addition, according to data from
the Hawai‘i Criminal Justice Data Center, 41 percent of
people who had their parole revoked in 2009 were Native
Hawaiian, whereas they comprise 39 percent of releases
on parole.117

Native Hawaiians make up the largest proportion
of people who had their parole revoked in 2009.

(2)

24%
(59)

10%

Chinese

(24)

Filipino
Japanese

White

(13)

41%

Native Hawaiian

20%

Other

(49)

(102)

Source: Hawai‘i Criminal Justice Data Center, 2009

If the parole officer don’t like
you, he will send you back
there. How are we supposed to
get back in society and do good
when they are just throwing
away the key?
(Former Pa‘ahao)

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 43

Private, For-Profit Prisons
Hawai‘i has relied on contracted, for-profit, private prisons to imprison a portion of its prison population for more
than a decade and at a cost of approximately $58.4 million, 26 percent of PSD’s general operating fund. The
state of Hawai‘i contends that there is no room for additional bed space on the islands and that it is cheaper
to house people on the continent. Currently, Corrections Corporation of America holds all the private prison
contracts with Hawai‘i.
However, critics of for-profit prisons are not only concerned by the general philosophy of making a profit from
incarcerating people, but also the hidden costs to jurisdictions associated with private facilities. Those costs
include:
Holding people for longer: Private prisons have an incentive to hold the people with the lowest custody levels and
who are also the least costly to incarcerate. Because payments are usually based on the number of people held
per day, there is also an incentive to keep them longer.
Public Safety: Advocates in Hawai‘i have long been concerned that housing people from Hawai‘i on the
continent impedes the re-entry process and severs ties with community and family, resulting in an increased
likelihood that a person will return to prison. In fact, the Community Safety Act of 2007 acknowledges this concern
and says that people with a year left of their sentence should be returned to Hawai‘i to participate in re-entry
initiatives. However, people held on the continent continue to be released directly from the continent. Although
there is no concrete evidence that private facilities necessarily decrease public safety, nationally, for people from
Hawai‘i who are prevented from participating in re-entry programs it seems more likely that there is no positive
return in terms of public safety.
Lawsuits related to prison safety: States can request that changes be made in private, contracted facilities, but
are prohibited from interfering in the operations of the company. However, states can be held accountable in
lawsuits if the people working in contracted facilities are found liable for misconduct. Although the state may not
necessarily be the one to pay in a settlement, there is the potential for significant costs related to lawsuits
for states.
Potential for corruption: A profit motive for incarceration creates the potential for justice officials and anyone who
makes decisions that can put a person in prison to be tempted to conspire with a for-profit company. A recent
scandal in Pennsylvania in which judges received kickbacks to send youth to a for-profit youth prison shows that a
profit motive can be a powerful factor when it is part of the sentencing process.
Incentives to incarcerate Native Hawaiians on the continent: For-profit prison industries also have an interest in
taking the people who are perceived to be the easiest to manage, thus costing them the least. Advocates in
Hawai‘i have heard from Corrections Corporation of America staff that they are permitted to choose the people
that they send to their facilities on the continent and that they prefer to take Native Hawaiian people because
they are perceived to be docile. As a result, Native Hawaiians bear a disproportionate burden of being sent to
the continent to serve a prison sentence.
Sources:
Meda Chesney-Lind and Kat Brady, “Ending Hawai‘i’s imprisonment boom: Let’s be smart on crime, not simply tough,” in The
Value of Hawai‘i: Knowing the Past, Shaping the Future, eds. Craig Howes and Jonathan Kay Kamakawiwo‘ole Osario (Honolulu,
HI: University of Hawaii, 2010).
Hawai‘i State Legislature, “A Bill for An Act: SB932 SD2 HD2 CD1,” http://www.capitol.hawaii.gov/session2007/bills/SB932_CD1_.htm
T.C. Pratt and J. Maahs, “Are Private Prisons More Cost-Effective Than Public Prisons? A Meta-Analysis of Evaluation Research
Studies,” Crime & Deliquency 45, p. 367-368, cited in Brad W. Lundahl and others, “Prison Privatization: A Meta-analysis of Cost and
Quality of Confinement Indicators,” Research on Social Work 19 (2009), p. 386.
Stephen Raher, “The Business of Punishing: Impediments to Accountability in the Private Corrections Industry,” Richmond Journal of
Law and the Public Interest 13, no. 2 (2010), p. 231.
Donald Cohen, “PA Judges Got Cash to Lock Up Teens, Revealed a Broken Justice System,” AlterNet, March 6, 2009.

44 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Punitive responses
to drug use and the impact on Native Hawaiians

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 45

lthough “the war on drugs” and punitive
responses to drug use are part of the larger
picture of incarceration in Hawai‘i, the
impact that it has on Native Hawaiians must
be highlighted on its own to arrive at recommendations
that will reduce the number of Native Hawaiians in the
criminal justice system.

The issue of substance use and abuse is important for the
Native Hawaiian community because of its correlation
to cultural trauma. As discussed earlier, cultural trauma
is the result of a history of systematic marginalization
by some dominant group. Research indicates that one
symptom of cultural trauma is substance use and abuse.118
Native Hawaiians also report personal trauma more than
other racial or ethnic groups in Hawai‘i,119which may also
contribute to self-medication through substance use.
Hawai‘i’s criminal justice approach to drug use was
a significant contributor to the total number of people
admitted to prison or jail in 2009 (762 or about 13
percent), but has even greater significance for Native
Hawaiians. Native Hawaiians made up the largest
portion (32 percent) of the people admitted to prison for
drug offenses in 2009.120
The following quote highlights the perspective of pa‘ahao.

The judge gave me three years, which was the lowest
I could get. But when I got to the parole board--they
looked at my jacket [record] and said, like “No. No way.
You should be doing at least five years…we’re not gonna
page-45

Native Hawaiians made up the largest portion of people
who are admitted to prison for drug offenses in 2009.

(11)

Native Hawaiian

24%
(182)

32%
(246)

White
Japanese
filipino

14%

Chinese

(107)

6%
(48)

22%
(168)

Source: Hawai‘i Criminal Justice Data Center, 2009

Other

let you out, you’re gonna do at least five years for selling
drugs.” They named it “meth trafficking.” Makes me
sound like I’m some big dealer. The judge himself said
“I can’t understand putting this girl away for doing a
simple drug deal in a parking lot.” But the parole board
they’re trying to rub crimes and drugs off the street,
right? So they really wanted to put me away.
(Former Pa‘ahao, Wahine)
The concentrated impact of incarceration for Native
Hawaiians is most evident when considering that
approximately 80,000 people in Hawai‘i over the age
of 12 report using illicit drugs in the previous month.121
Compared to numbers of people that report using drugs, a
relatively small number are arrested and then sent to prison
or jail; about 2,000 are arrested for drug offenses122 and 726
are admitted to prison or jail in a given year and, of those,
246 (32 percent) were Native Hawaiian.123 In other words,
many people in Hawai‘i report using drugs, relatively few
of those people are arrested and even fewer go to prison
or jail. But, of the people who go to prison or jail for drug
offenses, about one-third are Native Hawaiian.
The disproportionate impact of imprisonment for drug
offenses on Native Hawaiians is not easily explained
by different rates of drug use among different races or
ethnicities. According to both national data sets and the
2004 Hawai‘i State Treatment Needs Assessment Program
dataset, Native Hawaiians do not use drugs at particularly
dissimilar rates to other races or ethnicities, although there
is some variation. Irrespective of the variation in drug use
rates, the percent of Native Hawaiians that report drug use
does not match the proportion of the total number of people
admitted to prison or jail for drug offenses.
• The 2008 National Survey of Drug Use and
Health shows that 7.3 percent of Native Hawaiians
and Pacific Islanders over the age of 12 report
using drugs within the past month compared to
approximately 8 percent of Whites.124
• A 2004 Hawai‘i State Treatment Needs
Assessment, which administered a randomized
survey to adult Hawaiians, shows that Native
Hawaiians do not use drugs at widely dissimilar
rates to other races or ethnicity, especially when
comparing current use.125

46 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

About a third of people admitted to prison in Hawai‘i for drug offenses were Native Hawaiian in 2009

80,000
2,097
762

drug users over
the age of 12 in Hawai‘i

drug arrests
762 admissions to prison or jail for drug
offenses and, of those, 246 (32 percent)
were Native Hawaiian

Source: U.S. Census, “2007 Population estimate for Hawai‘i: General Demographics,” February 11, 2010. http://factfinder.census.gov/servlet/QTTable?_
bm=y&-context=qt&-qr_name=PEP_2007_EST_DP1&-ds_name=PEP_2007_EST&-CONTEXT=qt&-tree_id=807&-geo_id=04000US15&-search_
results=01000US&-format=&-_lang=en; Substance Abuse and Mental Health Services Administration, “Appendix C: Tables of Change between the 20052006 and the 2006-2007 Model-Based Estimates (50 States and the District of Columbia), by Measure,” February 11, 2010. www.oas.samhsa.gov/2k7State/
AppC.htm#TabC-1. ; Federal Bureau of Investigation, “Uniform Crime Report,” Crime in the United States, Table 69 Arrests by State, www.fbi.gov/ucr/ucr.
htm; Hawai‘i Criminal Justice Data Center, 2008.
Graph is adapted from Phillip Beatty, Amanda Petteruti, and Jason Ziedenberg, The Vortex: The Concentrated Impact of Drug Imprisonment and the Characteristics
of Punitive Counties (Washington, DC: Justice Policy Institute, 2007). http://www.justicepolicy.org/content-hmID=1811&smID=1581&ssmID=69.htm
Note: Admission is defined as each instance of entry to a custody that results from a conviction. Admissions do not include pre-trial or cases in which the
prosecutor declines to bring charges.

Lifetime Use

Current Use
(total pop. Base)

Current Use
(Lifetime use as base)

Current Use
(total pop. base)

Current Use
(Lifetime use as base)

Whites

40.3

4.4

10.9

4.3

0.1

16.3

0.5

23.9

39.6

4.3

10.9

8.9

0.2

2.2

11.9

0.2

11.2

Japanese
Filipinos
Other Asians
All Others

23.5
18.6
17.3
28.5

1.4
0.8
1.7
3.1

5.9
4.5
10
10.9

2.4
4.1
3
4.8

0.1
0.5
0.2
0.1

4.1
11.9
5.7
1.7

6.9
4.8
6.8
12.5

0
0
0.5
0.6

15.4
14
29
5.5

Lifetime Use

Current Use
(Lifetime use as base)

(Former Pa‘ahao)

Cocaine

Native
Hawaiians

Lifetime Use

Some guys
were brought
up with that
drug and
selling and all
that dealing
from their
parents.

Methamphetamine

Current Use
(total pop. base)

Marijuana

Source: Alcohol and Drug Abuse Division, 2004 Treatment Needs Division (Honolulu, HI: Hawai‘i
Department of Health, 2007). http://hawaii.gov/health/substance-abuse/prevention-treatment/
survey/2004needsassessment.pdf

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 47

Methamphetamine accounts for the greatest number of drug charges in Hawai‘i in 2009.
Native Hawaiians received the largest percent of those charges.
page-47a

page-47b

Of all drug offense charges in 2009, the
greatest number were for methamphetamine.

(31)

(8)

16%
(210)

Of charges for methamphetamine, Native Hawaiians
received the largest percent of those charges.

Cocaine

17%
(123)

16%

Marijuana

(714)

28%
(375)

Heroin

filipino

9%
(64)

Methamphetamine

54%

Chinese

(117)

38%
(268)

19%
(134)

Japanese
White
Native Hawaiian
Other

Source: Hawai‘i Criminal Justice Data Center, 2009

The use of methamphetamine in Hawai‘i, particularly
by Native Hawaiians, is a growing concern.
Methamphetamine accounts for the most charges of all
drug offenses. Although Native Hawaiians do report
lifetime use and current use of methamphetamine at
slightly higher rates than other groups, Native Hawaiians
are still charged with the majority of offenses related
to methamphetamine, by a wide margin. Data from
the Hawai‘i Criminal Justice Data Center shows that
Native Hawaiians make up between 16 and 38 percent
of charges for all categories of drugs, but account for the
largest proportion of charges for methamphetamine (38
percent). 126

Why are Native Hawaiians
disproportionately affected by criminal
justice responses to drug use?

considered to be the result of proactive policing, as
drug offenses are not generally reported to the police.127
Thus, police may have more discretion concerning
who they arrest for drug offenses than for property or
violent offenses, for example. One study out of New
York City found that police would return to the same
neighborhoods, often neighborhoods of color, to make
marijuana arrests.128 Another report by the New York
Times about stop-and-frisk tactics in one Brooklyn
neighborhood found that individual officers are evaluated
by the number of stops and frisks that they make in a
month, thus creating the potential for an officer to find
drugs. Even though police were not given specific quotas,
monthly performance measures included numbers of
stops and frisks.129

The reasons for the disproportionate impact of the criminal
justice system on Native Hawaiians related to drug offenses
are varied, but include a variety of social factors unique to
indigenous people, as well as the way the criminal justice
system works to react toward drug offenses.

Mandatory sentences associated with methamphetamine: Hawai‘i has mandatory sentences for the sale or
trafficking of methamphetamine of at least 10 years.130
Because Native Hawaiians make up the largest proportion of people charged with methamphetamine-related
offenses,131 they are more likely to receive one of these
mandatory sentences, which will extend the term they
spend in prison compared to other drug offenses.

Policing that targets Native Hawaiians: Arrests
precipitate the charges and are part of the total
consideration for prosecutors. Drug arrests are often

Availability and appropriateness of treatment and
prevention programs: Differences in the availability
of drug treatment for some groups of people compared

48 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

to others can be an important factor in the disparate
impact of the criminal justice system on communities.
Native Hawaiian admissions to treatment do vary
widely across data sets and geographic regions. The
Hawai‘i Department of Health reports that in 2006,
Native Hawaiians represented between 29 percent
of treatment admissions to 91 percent, depending on
geographic region.132 In addition, the highest percentage
of admissions to treatment for a single drug in Hawai‘i in
2007 was for methamphetamine at 31 percent, followed
by marijuana at 25 percent. Hawai‘i has the third highest
percentage of people in treatment for methamphetamine
compared to all other states, after Idaho and California,
respectively.133
Although there are culturally-sensitive treatment
initiatives in Hawai‘i and there is evidence that they
are effective, there are not enough of them. According
to the Hawai‘i Department of Health, culturallysensitive treatment had the highest admission rates. Two
substance use prevention programs in Hawai‘i provide
some evidence that culturally-sensitive initiatives are
effective. The Native Hawaiian Safe and Drug-Free
Schools and Communities Program and the Substance
Abuse Prevention Services for Native Hawaiian ExOffenders initiative incorporate culturally relevant
principles into their initiatives. Both programs rely on
culturally sensitive staff, culturally relevant materials
and processes, and relationships with family and
community. Both also consider culture to be a protective
factor, taking into account not only individual, but
environmental factors, and viewing the person as part of
the whole community. In a 1999 program evaluation of
these two initiatives, both were found to be successful in
preventing Native Hawaiians from using substances.134

Shifting to a public health response
In 2007, there were a total of 129 treatment facilities in
the state, either public or privately operated. 135 However,
treatment is not yet widely available, especially to people
living on neighbor islands.
A shift to treatment outside the criminal justice system
would succeed in reducing the number of people going
to prison or jail for drug use, reduce the number of
Native Hawaiians entering the system for drug offenses,
promote public safety, and save Hawai‘i money that
could be reallocated to other social institutions. For
example, a Washington State Institute for Public Policy

(WSIPP) study found that spending one dollar on drug
treatment in prison yields nearly six dollars in terms
of increased public safety and monetary benefits. In
contrast, an investment of one dollar in communitybased drug treatment yields over $18 in benefits. Funding
programs in the community yields a higher return on the
investment.136
In addition to cost benefits related to reduced
incarceration, drug treatment offered in the community
also reduces the chance that a person will be involved
in illegal behavior in the future. Intensive supervision
in a treatment-oriented program in the community
reduces the chance of recidivism by about 17 percent.
Comparatively, drug treatment in jail reduces the chance
of recidivism by about 5 percent.
Additionally, treatment in prison, although not as
effective as in the community, is still better than no
treatment at all. However, it is not widely or readily
available in prisons, according to one corrections official
and a formerly incarcerated person:

The way it’s designed right now—you are not going
to get treatment until your last two years. You get
your drug treatment and then you go to a transitional
program.
(Correctional Official)

Every individual get their own unique story. And a lot
ties right back to the ice [crystal methamphetamine].
It took us like three to four years for get treatment,
yeah? You go sit up there for a few years and then, you
come treatment, yeah? That’s how it is over here. You
going sit some place for a few years and then there’s
a place for you in treatment.
(Former Pa‘ahao, Käne)

49 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System
page-49

Community-based
drug
treatment
bigger benefits
crime than prison.
Community-based
drug treatment
provides
biggerprovides
crime reduction
reduction
benefits
prison.in For
every $1 spent
drug of $18.
For every
$1 spent
on drugthan
treatment
the community,
yieldson
a return
treatment in the community, you realize a return of $18.

18.52

$20

BeNeFIts (per dollar speNt)

$18
$16
$14
$12
$10
$8

5.88

$6
$4
$2
$

2.10

0.37

Prision

Adult Drug Courts

Drug Treatment in
Prision

Drug Treatment in
Community

Source: Steve Aos, Marna Miller, and Elizabeth Drake, Evidence-Based Public Policy Options to Reduce Future Prison Construction, Criminal Justice
Costs, and Crime Rates (Olympia, WA: Washington State Institute for Public Policy, 2006). www.wsipp.wa.gov.

Those with drug charges shouldn’t be incarcerated. They should be
rehabilitated. The ice [crystal methamphetamine] problem has affected
a lot of people and affects the future of our keiki [children]. This drug
is so strong it takes people away from their priorities-- their ‘ohana,
their keiki. It got so bad. It is still bad.
(Former Pa‘ahao Käne)

50 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Treatment-oriented supervision in the community lowers recidivism rates
more than all other drug treatment programs
-4.5%

Drug Treatment in Jail

-8.0%%

Adult Drug Courts

-16.7%

Intensive supervision: treatment-oriented programs

Drug Treatment in Prision

-5.7%

Drug Treeatment in Community

-9.3%

-20%

-18%

-16%

-14%

-12%

-10%

-8%

-6%

-4%

-2%

-0%

Percent change in recidivism rate
Source: Steve Aos, Polly Phipps, Robert Barnoski, and Roxanne Lieb, The comparative costs and benefits of programs to reduce crime (Olympia: Washington
State Institute for Public Policy, 2001)

PATH Clinic
The PATH clinic provides pre- and perinatal services to women who are in need of substance abuse counseling.
Although it is not a treatment facility, it provides OB/GYN services to women and provides referrals, education
and support to help a woman who is living with addition. The women at PATH want to be good parents and
participate voluntarily.
With funding from the Office of Hawaiian Affairs, PATH has established perinatal and substance abuse out-patient
treatment services to 30 Native Hawaiian women and children, a therapeutic garden and meeting place with a
play area for children, and community partnerships to sustain those outdoor spaces.
The PATH clinic is an example of a more holistic, gender-responsive response to women who living with addiction
and who are also parents. PATH helps to improve life outcomes for both women and children. The clinic’s preterm birthrate is 6.2 percent, lower than the national average of 12.7 percent or Hawai‘i’s average of 12.2
percent. Most of the women are able to maintain custody of their children and 80 percent of women abstain
from substance use.
Sources: Office of Hawaiian Affairs and The PATH Clinic, “Home,” July 30, 2010. http://pathclinic.org/index.php?option=com_
content&view=frontpage&Itemid=1
Renee Schuetter, “The PATH Clinic – Giving Birth to Hope,” in Unlocking Justice: Community Protection and Smart Spending
Conference Proceedings (Honolulu, HI, 2009).

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 51

Huli ka lima i lalo, ola,
Huli ka lima i luna, make
When one turns their hands down to cultivate and work hard,
there will be life and sustenance.
When palms turn up and work ceases, there will be hardship.

52 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Disparate treatment
within the criminal justice system

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 53

This section is divided into two parts. The first section
explores specific ways in which disparate treatment within
the criminal justice system affects Native Hawaiians.
The second section suggests that there are other possible
reasons for disparate impact for Native Hawaiians borne
out by other research.

When I went in for my last one [incarceration] with my
meth trafficking charges, my public defender told my
mom that I was gonna do 15 years-- that almost broke
my mom’s and my son’s heart. But I’m up there studying
the laws and when he told me that I was gonna be doing
15 years I said, “Oh, hell no. I’m not doing 15 years,
watch this”, okay? So, I fired that lawyer ‘cause he was
a Public Pretender, like they say. I got a court-appointed
lawyer,138 because I knew a repeat offender does
something more like three years, or whatever it is. He
was really for me and the judge allowed me to go out on
supervised release to a program that did wonders for me.

Disparate treatment of Native Hawaiians

(Former Pa‘ahao, Wahine)

The experiences of Native Hawaiians, correctional
officers, treatment providers, and advocates explain the
processes that result in a disproportionate representation
of Native Hawaiians in the criminal justice system.
Differences in the way that Native Hawaiians experience
the system are often the result of the way the criminal
justice system operates, but other experiences seem to be
the result of a long history of stereotypes, and cultural and
personal trauma.
Disparate treatment before the courts. There are many
zealous, hard-working public defenders in Hawai‘i, but
nonetheless, they are perceived by some as unhelpful and
disinterested. Formerly incarcerated people in Hawai‘i
have a negative perception of public defenders.

The public defender wasn’t for the public. We [pa‘ahao]
call them the “Public Pretender” or the “PP.” The first
thing they want to do is take a plea. They don’t even
seem to care what you say. There are times when I think
they could have done more for me. But because of my
“jacket” [record], they’re like, “Just take the plea.” I’d
gotten to the point where the first thing I’d ask is: “can I
get a plea?” or “what’s the best plea I can get?” Cause
that’s what you hear from them. What you don’t hear is,
“What can I do for you? How can we work this out?” No,
it’s more like: “This is what they’re offering. I think you
should take it.”
(Former Pa‘ahao, Pacific Islander/non-NH, Wahine)

These perceptions may be caused by a variety of factors
ranging from media images of public defenders, stories
of public defense from other states or jurisdictions, the
idea that a good lawyer should be able to fight all charges,
and that people who come in contact with the criminal
justice system may have had negative experiences with
other public service agencies. In addition, those being
defended may not understand the limited resources that
are available to public defenders. Public defenders may
also be blamed for the punitiveness of the system related
to sentencing and a lack of alternatives to incarceration.
National research provides an example of how the image
of public defenders in other jurisdictions may affect how
public defenders are viewed in Hawai‘i. Research by the
American Bar Association shows that appearing before
the court with private counsel is associated with a lower
likelihood of conviction than using a court-appointed
public defender.139 Youth of color are more likely to rely
on the indigent defense system, which often includes
public defenders that are overburdened and underresourced with higher caseloads than private attorneys.
White youth are twice as likely as African American
youth to retain private counsel.140
Nonetheless, public defenders have an opportunity to
use whatever perception or criticisms as a way to further
improve public defense in Hawai‘i.

54 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Discretionary paroling practices: Good time does not
equal less time
More so than other states, Hawai‘i gives the Hawai‘i
Paroling Authority (HPA) a significant amount of
authority to set minimum sentences. Judges set sentences,
but within six months of the conviction, the HPA holds
a hearing to determine the minimum sentence. At the
hearing, the person being sentenced can have legal
representation and the prosecuting attorney will also
present evidence. The HPA uses guidelines to assist in
setting the sentence, including the nature of the offense,
the degree of injury or loss, and the person’s prior offense
history. The HPA has the prerogative to use criteria they
deem necessary to make decisions about sentence, 141 but
cannot go over the maximum sentence set by the judge.
Hawai‘i does not have diminution or good time credits,
but a sentenced person can apply to have their minimum
sentence reduced after they have served a third of their
sentence.
Through the parole process, HPA functionally determines
the length of time a person stays in prison. A minimum
sentence guarantees a parole hearing, but does not
guarantee release. Parole hearings are scheduled prior
to the expiration of the minimum sentence. The HPA is
required to submit, in writing, the reasons for denying
parole.
The discretionary nature of minimum sentence setting
and release determinations outside the court are
concerning for formerly incarcerated Native Hawaiians.
The real determination of sentence appears to be not set
by a judge, but by the HPA, which to people that come
into contact with the system see as arbitrary criteria.

I didn’t think I’d be there for as long as I was cause I
didn’t know anything about the parole board--I thought
it’d be, okay, you go see the judge, he’ll sentence you to
whatever it is, he gives you a mandatory time and that’s
what you’ll do and that’s it, pau. I was gravely mistaken.
The judge gave me an open 10 years, with a six months
mandatory minimum. That’s what he recommended to
the parole board. But they gave me four years. I didn’t
understand why. I’d never once been arrested for
anything before that.
(Former Pa‘ahao, Wahine)

The weird thing is that they [parole board] fluctuate. It’s
the luck of the draw. The State has some of the worst
laws. You don’t want to go into a parole hearing after
the guy who went before you, pissed off the board. One
guy goes in and he just makes the board lose it. You
next. You stay walking in, you stay pumped up already
because they ready to smash you.
(Former Pa‘ahao, Käne)
Given the cumulative impact of the criminal justice
system on Native Hawaiians and the evidence that Native
Hawaiians cycle through the system more than people
of other racial and ethnic groups, sentence-setting and
discretionary parole based on offense history will likely
contribute to the disproportionate number of Native
Hawaiians in the prison system in Hawai‘i.
Interactions with correctional staff: Bad time equals
more time
Interactions between people in prison and guards can
contribute to the amount of time that a person ultimately
spends in prison. Infractions within the prison walls,
sometimes subjectively determined by correctional
officers and not always serious in nature, can lead to
changes in custody that will then impact the chances that
a person can participate in certain programs or services
that make a person eligible for release. Some correctional
officers view their position of power as one that does
not require interpersonal problem solving, which could
contribute to perceptions about behaviors. For example,
one correctional officer noticed that another officer would
yell at the people in prison from behind an enclosed area,
thus separating himself from the people.

The control box separates the inmate from the officer—
physically and otherwise. Sometimes my partner would
be screaming at the inmate from the box. And I would
look at him and say, “Why don’t you just bring him inside
and talk?” The box gives that false sense of security
because there is a door between them and us and some
officers think they can talk in any way they like. You get
more respect when you open the door.
(Correctional Official)

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 55

Several participants interviewed for this project noticed a
difference in the way that they are treated by correctional
officers in Hawai‘i compared to correctional officers
on the continent. Such differences in treatment may
be because correctional officers on the continent did
not grow up with the same biases and stereotypes as
correctional officers in Hawai‘i.

On the mainland, the officers are more professional
in a lot of ways. For example, they don’t tolerate
cliques—they investigate and if they find something,
they encourage or move people on so no cliques can be
formed. I like that because then there’s no riot. I feel safe.

Trauma of incarceration
Incarceration is traumatic for all people. It devastates
families, destabilizes communities, and cuts people off
from jobs and education that improve life outcomes and
help keep people out of prison once they are released.
Incarceration also re-traumatizes people that have
already experienced trauma in their lives.

Families are so devastated by incarceration. Families
give up and the inmates are like: “I swear I’m going to get
it right this time.” And then they blow it again. And their
kids are so through with that and angry and act out. And
grandparents are so through with their adult children.

(Former Pa‘ahao, Wahine)
(Treatment Provider)
When I got to the mainland, I found the ACOs [Adult
Correctional Officers] more professional [than in
Hawai‘i]. They didn’t pick on really manini, small,
little things. They treat you like an adult, as long as
you respect them, they respect you. Say that my bed
is not done properly. On the mainland, the ACO would
say, ‘come on you know better than that.’ It’s more
encouraging way to talk, yeah? With the ACO’s here [in
Hawai‘i], our lingo is “the only thing that is consistent is
the inconsistency.”
(Former Pa‘ahao, Wahine)
I see a change in ACO’s now, they disrespect a lot of
inmates. Just for little things they would yell at them,
slap ‘em. I think that shouldn’t be happening.
(Former Pa‘ahao, Käne)
However, housing people from Hawai‘i on the continent
may also be contributing to longer sentence lengths. The
private, for-profit prisons used to house Native Hawaiians
on the continent are far from the purview of the Hawai‘i
government and may not necessarily be as respectful of the
unique needs of Native Hawaiians. For example, the ACLU
of Hawai‘i found that Saguaro prison in Arizona does not
permit Native Hawaiians to participate in multiple religions,
which include Native Hawaiian cultural practices.142

For Native Hawaiians the impact of trauma is particularly
salient because of strong connections to family, the land
and community. Some formerly incarcerated Native
Hawaiians voluntarily end visits and contact with their
family while they are in prison because they do not want
their family to be traumatized by the searches and by
seeing their family member in prison.

I remember them suffering when the visit ends and
families leave. You see it. They want to go home,
especially when children are involved… [But] while they
enjoy seeing their children, not all of them feel good
about seeing them in prison. When you sit down and talk
to them, there is anxiety about children and families
coming in…after all, they have to watch their parents
and children being searched.
(Correctional Official)
Native Hawaiians disproportionately experience
childhood trauma and abuse.143 Upon incarceration,
many formerly incarcerated people reported further
victimization, which complicated their efforts to cope
and gain mastery over chemical dependency and other
addictive behaviors, both of which can increase the
chances of a person returning to prison after release.

56 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

There was a murder. One inmate stabbed another
inmate. They had been involved and then one of them
got out, took some money from the other, and I guess,
abused that and had a relationship with someone else.
Then she came back to prison. So, the other had a knife
and went after her. It happened quickly before the
staff could do anything. I was off working in another
building, but you could hear the screaming. Horrendous
screaming. Can you imagine---the inmates were
watching TV and all of sudden seeing this? Trauma for
inmates and staff.
(Correctional Official)
Imprisoning people from Hawai‘i on the continent
seems to be the most damaging to Native Hawaiians.
It contributes to the growing prison population and
exacerbating the disproportionate impact of the system
on Native Hawaiians because they are cut off from
supportive communities and families that give them
a reason to exit prison as soon as possible. Even the
absence of familiar surroundings and changes in weather
is traumatizing.

I went up to the mainland for five years and I lost my
family—wife and kids.
(Former Pa‘ahao, Käne)

For me it was a bad experience. I got sick as soon
as I got there. I spent three months in the infirmary.
I couldn’t handle the water, the cold…the whole
experience was traumatizing.
(Former Pa‘ahao, Wahine)
It gets cold on the North American continent and when
our pa‘ahao are sent away that cold enhances the
sense of disconnectedness, the sense of unsettled spirit
uprootedness. I agree that we need to bring pa‘ahao
back. But we need to ask ourselves: what are we
bringing them back to? A lot of the men would prefer to
be in Arizona because it’s a brand new facility, it’s clean,
and there are programs.
(Community Advocate/Volunteer)
The transfer to continental prisons has also historically
been traumatic. People are rarely permitted to say goodbye to their families and in some cases were forcibly
removed by SWAT teams.

I remember the first time they were moving the inmates
to the mainland. They had a SWAT team and they came
in and went to the dorms and told the women, “You
gotta get your stuff together now and you gotta get out.

Women’s Community Correctional Center
The Women’s Community Correctional Center (WCCC) in Kailua has formed a series of partnerships to implement
a trauma-informed system of care to the women at the facility. With funding from the Office of Hawaiian Affairs
and the Mental Health Transformation Working Group, WCCC provides universal trauma screening to identify
women in need of specialized trauma intervention and training to the staff.
In addition to trauma-informed care, the facility also has Project Bridge, which is a transitional program that
provides job training, including gourmet cooking skills, to help women find jobs when the leave prison.
Sources: Office of Hawaiian Affairs and Department of Public Safety, “Women’s Community Correctional Center,”
July 30, 2010. http://hawaii.gov/psd/corrections/institutions-division/prisons/womens-community-correctionalcenter

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 57

Like it or not.” There was one woman who didn’t want
to leave—she didn’t want to leave her family. She cried
like a child. And there was another who didn’t want to
leave and acted out. They ended up tying her to a stick
to remove her. It was unbelievable…very traumatic…
very traumatic.

We go through culture shock and there is nothing to prepare
us from incarceration to furlough to reentry. We only have
two furlough homes. That’s not enough. Even when you’re
qualified for the system to send us out, there are not enough
spaces for us in the furlough homes.
(Former Pa‘ahao, Wahine)

(Correctional Official)
You know the worse thing about it?! You no can let your
family know you going.
(Former Pa‘ahao, Käne)
Lack of programs and services in prison to prepare a
person for reentry
Often, people in prison are required to participate in specific
programs and services in order to be eligible for release.
Without the completion of those programs, a person can
be denied parole. However, programs and services fill up
and there are no available spots for everyone who needs
to participate. In some cases, a person is transferred to
out of state and have to start programming over again.
Not only are people in prison prevented from earning the
earliest release possible, they could also potentially get
to the end of their sentence and be released without the
services that might facilitate reentry and prevent return
to prison. Complicating a successful reentry process is
that some people are returning from prison after serving
their time on the continental United States because they
are placed directly into the community without adequate
resources to sustain themselves.

Stagnant time, dead time, more time [longer
incarceration]. We’re not doing nothing. We sitting in
one place. They give us these requirements to do, but
they don’t have the means for you to do your programs.
They expect you to get a GED but no schooling in the
prison. yeah? It’s like the State telling you—“you know
what, you going wait until we are ready.”
(Former Pa‘ahao, Käne)

Before I got into a furlough program, I tried to find out from
the Parole Board ‘what’ I needed to qualify to be paroled,
what kind of programs they got. They wouldn’t release that
information to me. We need that kind of information…If you
don’t have that set up as your parole plan, you see the Parole
Board, they goin’ defer you. And what that causes when you
done a lot of time is discouragement, loss of hope. It doesn’t
seem that the system is trying to help. It just seems like they
just want you there. And then you become what everybody
labels you—another statistic in a revolving door.
(Former Pa‘ahao, Wahine)
It’s hard to fathom in your mind what it’s like to be doing
stagnant time, sitting on your bed for 24 hours, only standing
to do head count. Unless they wear my shoes, they can’t
really comprehend what it’s like, how it feels, then have an
ACO degrade me, that’s not encouraging me to better myself,
especially if I come from a very severe traumatic background
in life. Then you feel like a dollar symbol with a revolving door
back to prison
(Former Pa‘ahao, Wahine)
You try walk out of prison with absolutely nothing. No more
ID, that kind, simple kind of things, yeah? In prison you get
everything, three meals, one bed, hot water for shower, you
get one job, you save money. Scary to think about parole,
re-entry. I have no more nothing for go home to right now.
As much as you try to plan, it’s crazy right now [in society].
Everything getting worse.
(Former Pa‘ahao, Käne)

58 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

TJ Mahoney & Associate, Inc.
Ka Hale Ho‘äla Hou No Nä Wähine (The Home of Reawakening for Women)
Recognizing the growing number of women in prison in Hawai‘i and the need for gender-responsive approaches
and services, TJ Mahoney & Associates opened Ka Hale Ho‘äla Hou No Nä Wähine, dedicated to empowering
women to successfully transition from prison to the community. The program is for women on work release and is
designed to help them successfully navigate the obstacles of community reentry through a stage-based change
process. The unique model, developed in response to the women’s needs, strengths and struggles, supports
women as they make progress, derail and re-stabilize, leading to personal empowerment while increasing
accountability and resilience.
Included in the programs are the cultural values of Native Hawaiians. ‘Ohana (family) is a concept that creates a
supportive environment in which women are part of the whole. The ‘ohana includes staff and the women living at
the facility, working together to plan celebrations, community activities, and contributing to policy development
at the facility. The program also includes kuleana (responsibility) as part of the transition process.
Source: Ka Hale Ho‘äla Hou No Nä Wähine, “Ka Hale Ho‘äla Hou No Nä Wähine,” July 6, 2010. http://www.
reawakeningforwomen.org/index.php?view=1.0

When you talk ‘culture’, you
have to look at people and
understand how they live so you
can administer your mana‘o
[concern, thoughts] to them.
You want to teach them. Feed
them so they no choke, so that
they are able to inu [drink]
from what you teach and digest
it. So, that they can stand up
and be proud. No hold down
their head and be willing to
build a foundation that is pa‘a
[firm, solid] and pono [moral,
right]. So that no matter what
kine come, they not going fall
down again, because they have
that foundation.
(Treatment Provider)

Culturally inappropriate or unavailable reentry services
Research conducted by Noreen Mokuau, a respected
scholar of social work and health care for Native
Hawaiians at the University of Hawai‘i at Mänoa, shows
that culturally relevant and appropriate interventions
and services are the most effective for helping Native
Hawaiians participate fully in the community.144 For
example, traditional social work modalities typically
rely on self-determination, which is individualistic and
is Northern European or North American in orientation.
Pacific cultures, including Native Hawaiians, tend to see
themselves as part of a collective group or community.145
In order to effectively provide services for reentry or
some other wellness promotion initiative, a provider
must be aware of the totality of community context,
interdependence, and, also, the role that oppression by
other groups has played.146 The application of Western
values to a culture that does not share them will not ensure
successful implementation of initiatives or services.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 59

Other possible
sources of disparate treatment
Mandatory sentences and sentencing enhancements
have been a significant factor in the disproportionate
incarceration of communities of color, including Native
Hawaiians. Mandatory sentences are obligatory for certain
offenses in some states and for the federal government.
Without mandatory sentences, judges have considerable
discretion in sentencing, which allows the judge to
consider mitigating (or aggravating) circumstances
surrounding a charged offense.147 Mandatory sentences
theoretically ensure uniformity of sentencing, but in
reality have significant unintended consequences that
often disproportionately impact communities of color.
In Hawai‘i, methamphetamine are the only drugs that
carry mandatory sentences. According to data from
the Hawai‘i Criminal Justice Data Center, Native
Hawaiians are more likely than any other racial or ethnic
group to be charged with a methamphetamine-related
offense,148 which may contribute to the disproportionate
representation of Native Hawaiians in the prison
system.
A 2002 leniency statute149 allows for people convicted
for the first time of a drug-related offense and who would
benefit from substance abuse treatment to be sentenced
to probation and treatment instead of incarceration.
However, if the person has been previously convicted
of a felony, he or she is classified as a “repeat offender”
and is no longer eligible for the treatment exception.150
This exception can create barriers for people who want
and need treatment.
Other mandatory sentences are also associated
possession of a firearm while committing a felony and
after a conviction for repeat offenses. A person convicted
of a felony with a firearm in their possession (whether it
was used or not, and whether it was operable or not) will

serve a mandatory minimum of up to three years for some
felonies, and up to 10 years for felonies determined to be
more serious.151 The presence of a firearm, even if it is
not loaded or even functional, can increase a person’s
sentence up to 10 years. Nineteen states have rolled
back or restructured mandatory minimum sentences and
related sentencing policies so that the “punishment fits
the crime.”152
Similar to three strikes laws in other states like California,
Hawai‘i has mandatory sentences for repeat offenses.
These offenses receive the harshest mandatory sentences
in Hawai‘i. A person previously convicted of certain
felonies, who is convicted again of the same type of felony
or has a felony conviction from another jurisdiction, is
subject to a mandatory minimum sentence.153 These
sentences run anywhere from 20 months to 20 years than
it was for Whites.154
Although there is no similar study for Hawai‘i, three
strike laws in California were found to disproportionately
impact people of color in that state. In 2004, 10 years after
the implementation of three strike laws in California, the
Justice Policy Institute calculated the approximate impact
that the laws have on people of color and found that
the incarceration rate for African Americans convicted
on a three strikes law was 12 times higher that it was
for Whites.155
Generalizations and miscommunication between people
of different racial or ethnic backgrounds sometimes
results in different treatment in the criminal justice
setting. In a study examining differences in sentencing
recommendations for African American and White
youth, researchers found that probation officers viewed
crimes committed by youth of color as caused by personal
failure, but viewed crimes committed by White youth as
having to do with external forces.156 This may result in
a White youth receiving a more lenient sentence or one
of treatment, where a youth of color, including Native
Hawaiian youth, may receive a harsher punishment.

60 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Collateral consequences
of criminal justice involvement on Native Hawaiians

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 61

ost people assume that a person convicted
of an offense will “pay his debt to society”
with a prison sentence or a term of probation
that is deemed appropriate by a judge. The
reality is, however, that imprisonment and conviction
carries a set of collateral consequences that extend well
beyond the sentence imposed by the court. Many Native
Hawaiians coming out of the criminal justice system
are denied the opportunity to finish school; they lose or
cannot obtain a driver’s license; they cannot find stable
employment, and they are simply unable to support their
families. These collateral consequences push the limits
of “punishment to fit the crime” and effectively deprive
a person convicted of an offense of any second chance at
effectively living in, and contributing to, a community.
The collateral consequences included here are generally
applicable to all people in Hawai‘i. However, because
Native Hawaiians make up nearly 40 percent of the
people in prison in 2008, these collateral consequences
intensely affect this community and perpetuate a cycle
of involvement in the criminal justice system, further
contributing to disproportionality.

Breaking up the family
Not only are Hawaiians separated from their families
during incarceration, but many will be permanently
separated. Hawai‘i state law allows family courts to
terminate parental rights when a child has been removed
from a parent “who is found to be unable to provide now
and in the foreseeable future the care necessary for the
well-being of the child.”157 This law follows the federal
Adoption and Safe Families Act which mandates that
children in foster care be placed within 18 months.158
Incarcerated parents who lose their children may never
get them back. For many women in prison in Hawai‘i,
this is a common occurrence. A report prepared by
Marilyn Brown and Jedidiah Kay of the University of
Hawai‘i showed that 75 percent of the sample of women
in prison in Hawai‘i County had at least one child.159
In addition, persons with a criminal history are barred
from becoming foster or adoptive parents, and a person
who wishes to become a foster or adoptive parent must
not share a household with a formerly incarcerated
person.160 Simply living with, or being married to, a
person convicted of a crime limits the individual family
rights.

Loss of the family home
Even if a person convicted of a crime is able to reunite
with his or her family after incarceration, the family
may find itself homeless. The Housing Opportunity
Program Extension Act of 1996 imposed a mandatory
three year ban from public housing on anyone who
was evicted due to drug-related criminal activity.161
Although successful completion or compliance with a
rehabilitation program can reinstate eligibility, the Act
grants state public housing authorities broad discretion
to make their own standards about who qualifies for
public housing. Most people convicted of felonies are
denied public housing due to screening procedures.162
Housing is the foundation for maintaining all other
aspects of successful participation in society. Laws that
prohibit where a person, and ultimately his or her family,
can live may have severe negative effects on individuals
and on communities. As evidenced by the findings in this
report, Native Hawaiians are disproportionately affected
by the criminal justice system and punitive responses to
drug use.
For Native Hawaiians, it is the land, often associated with
housing, that is of particular significance. The connection
to the land is culturally significant and central to Native
Hawaiian’s positive identity construction.

Hawaiians can’t even afford their own land. All these
homeless people, most of ‘em is Hawaiians. And when
they do build low income housing, they live on welfare…
and they don’t even come close to qualifying for land.
It’s b.s. Being homeless drive Native Hawaiians to do lots
of criminal activities just to survive.
(Former Pa‘ahao, Käne)

Limited employment and vocational
opportunities
While Hawai‘i has laws designed to prevent
discrimination in the hiring of people convicted of
offenses there is little done to enforce the laws and
protect those who have been released from prison to
the community. An employer, as well as a prospective
landlord, is barred from inquiring about arrests that
did not lead to convictions; such arrests can be sealed
or expunged in most circumstances.163 However, many

62 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

employers are exempt from this rule, including the federal
government, Department of Education, private schools,
banks, and health care facilities.164 If an employer decides
to deny employment because of a prior record, he or she
must show that the criminal record is rationally related
to the ability to perform the job in question.165 Despite
these laws, employers frequently screen applicants based
on criminal history, through legal or illegal means and
discriminate, citing other reasons not to hire.166
The state of Hawai‘i may itself deny employment to
those who have been convicted of an offense. The state
may refuse or revoke any license to practice some type
of employment, permit, registration, or certificate of a
person convicted of a felony if the conviction is directly
related to the trade for which the license is held.167 In
addition, a person may not hold any public office in the
state of Hawai‘i until he or she has been discharged of his
or her sentence.168 These types of restrictions, both from
private and public employers, can make it harder for
people to comply with parole or probation’s employment
requirements and may lead to re-incarceration.
The people who participated in this project, including
formerly incarcerated people and a correctional official,
express frustration with the lack of opportunities,
desperation that there seems to be no way around the
barriers that perpetuate a cycle of contact with the
criminal justice system and without a way to interrupt
the cycle.

When we go out, we’re labeled as ex- convicts. We are
not labeled as regular people in society. We are labeled
as people coming from jail… there’s a lot of roadblocks
for us.
(Former Pa‘ahao, Käne)
Economy stay down and hard for find one job. Or you can
find one if you really want to, but the pay’s not going to
be what you in the State of Hawai‘i, where it’s expensive
for live. A guy can work two jobs and he’s still living on
the beach…hard time.
(Former Pa‘ahao, Käne)

Plenty of us, many people in prison no more no place
for go. When they get out, they no more place for go.
The beach is their home. They get to look forward to one
tent, if that, yeah? No more clothes. No more financial
support. No more vehicle. No more job, that’s for sure.
(Former Pa‘ahao, Käne)

Excessive fines
The inability of a person with a criminal record to
find employment is often compounded by large fines
imposed by the criminal court. Theoretically, the courts
are strictly bound not to issue fines if the person cannot
pay; however, the statutory language does not provide
the court with criteria to assess their financial ability, so
the matter is largely in the court’s discretion.169 Fines
may range from $1,000 for a petty misdemeanor to
$50,000 for a Class A felony,170 and may be imposed
when a person is convicted of a crime for which he or
she derives a pecuniary gain or where the court believes
a fine is specially suited for deterrence.171 If a person is
sentenced to probation, paying fines may be a condition
of probation.172

Loss of driver’s license
A conviction for driving a vehicle while under the
influence of an intoxicant (which includes both drugs and
alcohol) triggers an automatic revocation of a driver’s
license. A person convicted of a such an offense will
lose his or her licenses for a minimum of six months and
up to three years, depending on the number of previous
offenses and level of intoxication.173 This loss often has
a tremendous ripple effect for individuals and families–
including the ability to get to and from work, to search
for employment or housing, visit relatives, obtain child
care, and keep appointments with parole or probation
officers as a term of community supervision. Some of
the people interviewed for this project indicated the
difficulty in getting to the Social Security Office to get
a new social security card so that they may get a new
driver’s license. The loss of a driver’s license is even
more problematic on islands or in jurisdictions with
limited public transportation.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 63

Diminished educational opportunities
Arguably one of the most effective means of reintegrating
into society and building a productive future after
incarceration is through education – especially postsecondary education. However, federal law disqualifies
students convicted of drug-related offenses from
receiving financial aid.174 The waiting time to become
re-eligible ranges from one year to life, depending on
the number of previous offenses.175

Exclusion from civic and political
participation
In many states, people convicted of certain offenses are
denied civic participation, including the right to vote or
sit on a jury. Voting and jury service are the primary ways
that most citizens participate in the political process.
Voting in particular allows people in Hawai‘i to have a
say in shaping the policies that affect their lives.
People convicted of felonies in Hawai‘i are not permitted
to vote until their sentence is discharged. 176 Although
the right to vote is automatically restored once a person
is released from prison, the correction agencies’ system
of data sharing does not always submit a person’s reeligibility to his or her county, so a released individual

may have difficulty exercising their right to vote. Since
Native Hawaiians are disproportionately more likely
to receive a criminal conviction, they are more likely
to have their voting rights taken away, leaving a large
section of some communities disenfranchised and
unable to help make decisions to change and better their
own communities.
A person convicted of any felony who is not pardoned
is also permanently disqualified from jury service.177
Again, because Native Hawaiians are disproportionately
more likely to receive a conviction, it limits the jury
pool, thus making it more difficult to achieve a jury that
is representative of the population, which is required by
the U.S. Constitution.178 A recent report by the Equal
Justice Initiative that examines jury selection practices
in Southern states raises concerns about representation
of the community and the credibility of a justice system
that does not include all members of the community.179
Many Americans take for granted their right to vote,
serve on a jury, obtain housing, get a job, receive public
assistance, and to apply for financial aid, not to mention
their right to build a family. When a person is convicted
of a crime, all of these rights are seriously affected and
the loss of such rights can impede a person’s ability
to successfully transition to the community and stay
out of prison.

64 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Social well-being and the criminal justice system

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 65

nvolvement in the criminal justice system is a
symptom of the barriers and challenges of Native
Hawaiians in other social institutions and through
a historical context. Compared to other racial and
ethnic groups in Hawai‘i, Native Hawaiians have lower
levels of educational achievement, are underemployed,
are disproportionately represented in the juvenile justice
system, and, although it is not included in this report,
experience disparities in health outcomes. Although
educational attainment, employment status, economic
status, involvement in the juvenile justice, and the impact
of a family member’s incarceration are not hard and fast
indicators of involvement in the criminal justice system,
there is research that that these social factors are related
to incarceration.
While it is critical to examine disproportionate incarceration rates, the starting point for disproportionality
is in the socio-economic factors that exist even before
a person enters the criminal justice system. For Native
Hawaiians the causes of disproportionate minority confinement are complicated, but can be attributed, in large
part, to the social marginalization created by colonialism
and racism.
Social marginalization is the dynamic process by which
individuals and groups are increasingly distanced from
the center of positive attention, influence, and power in
conventional mainstream systems.180 A marginalized
community is alienated from education, economic, and
other social institutions, resulting in significant challenges
in not only experiencing positive life outcomes, but in
persevering in trying to achieve them. One treatment
provider interviewed for this project suggests that
incarceration is a symptom of social marginalization.

Typically over 50 percent of our [client] population is
Hawaiian. I think the key is the system. It’s part of the
bigger picture and not isolated to the criminal justice
system. It’s about marginalized people who don’t have
the resources, support, protective factors, function at
a level that doesn’t make it, fall through the cracks and
end up giving up and saying, ‘I’m just going to get loaded
because I can’t handle it.’
(Treatment Provider)

The social factors outlined in this section of the report
are examples of ways in which marginalization plays out
in a community.

Educational attainment
Surveys of incarcerated people have consistently shown
that people in prisons and jails have less educational
attainment than the general population in the United
States. In Education and Correctional Populations, the
U.S. Department of Justice’s research arm, the Bureau
of Justice Statistics, reported that in the late 1990s, 68
percent of people in state prisons had not received a high
school diploma, while only 18.4 percent of the general
population had not completed high school. In the same
year, 48.4 percent of the general population achieved a
postsecondary education; yet, only 12.7 percent of the
incarcerated population reached this achievement.181
National data suggest that the relationship between
educational attainment and incarceration has a
concentrated impact on communities of color. Whites
tend to have a higher level of educational attainment
than African Americans and Latinos182 and a lower
incarceration rate.183
This link may also be evident in Hawai‘i, where the level
of educational attainment of Native Hawaiians is not
proportionate to all other groups in Hawai‘i. Although
Native Hawaiians in Hawai‘i had completed high
school at similar rates to all other people in Hawai‘i in
2008, Native Hawaiians are less likely to have earned a
Bachelor’s degree.184 The higher the level of educational
attainment, the more access a person has to higher paid
jobs and less likely they will be incarcerated.
Alienation from the school system, perhaps because
of a feeling of marginalization, might result in noncompletion of high school and in low literacy levels,
which in turn exacerbates social marginalization. One
participant in this project left school after being hit by a
teacher and a principal.

When I was in the fifth grade I remember getting
whacked across my face with a ruler from a teacher
because I was just too slow to respond to one answer.
Then, when I was in the seventh grade, the principal

66 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System
page-66

Althoughalthough
Native Hawaiians
complete high
school at high
similar
rates to
racial
and to
ethnic
groups,
Native Hawaiians
complete
school
atother
similar
rates
other
they are less likely to earn a Bachelor’s degree.

racial and ethnic groups, they are less likely to earn a Bachelor’s degree.
100%

89.4% 89.5%

90%
80%
70%
60%
50%
40%

31.9%

20%
10%
0%

14.4%

10.6% 10.5%
Population 25 years and older
with less than high school

Population 25 years and older with
a high school diploma or higher

Native Hawaiians alone or in combination

Population 25 years and older with
a Bachelor’s degree or higher

All others

Source: U.S. Census Bureau, “Hawai‘i, S0201. Selected Population Profile, Native Hawaiian alone or in any combination, 2006-2008 American Community
Survey,” December 31, 2009.
Note: “All others” is calculated by subtracting Native Hawaiians alone or in combination from the total population.

whacked me and I never like that either. My father gave
me lickings [beatings], too. That’s what made me turn
away. I never went back to school.
(Former Pa‘ahao, Käne)

Employment
People in prison tend to have higher unemployment
rates and lower wages prior to their arrest. In the most
recent statistics compiled by the U.S. Department of
Justice (DOJ), one-third of people in jail reported they
were unemployed prior to arrest in 2002;185 compared to
5.8 percent of the general population.186
People in prison generally also made less money prior to
their incarceration than the general population. Eightythree percent of people in jail reported income of less
than $2,000 in the month prior to arrest in 2002.187 This
is one-third lower than the average monthly wage of the
U.S. general public which is slightly more than $3,000
per month.188
For any number of reasons that are beyond the scope
of this report, Native Hawaiian families have the
lowest mean income of all ethnic groups in the state.189
Additionally, Native Hawaiians in Hawai‘i had the
highest percentage of people living below the poverty

line in 2000.190 Specifically, Native Hawaiians have a
poverty rate of 12.2 percent, while non-Natives have a
poverty rate of 8.6 percent in Hawai‘i.191
Native Hawaiians are less likely than all other people in
Hawai‘i to be employed in management or professional
positions, which tend to be higher paid. Native Hawaiians
are more likely to have service-oriented jobs, which pay
less than managerial positions.192 The tourist industry
in Hawai‘i has adopted and exploited the notion of
aloha and Hawaiian hospitality, which requires Native
Hawaiians themselves to actualize those ideas. In a
review of school textbooks about Hawaiian culture used
in Hawaiian schools, Julie Ka‘omea, found that even
though some of the books were well-intentioned, they
still perpetuated stereotypes about Native Hawaiians and
inadvertently encouraged youth to pursue jobs in the
tourist industry.193
It is important to note that the association between
employment, wages, and imprisonment does not
necessarily mean that people without jobs or who
make less money commit more crime. However, given
significant barriers to employment in the traditional job
market and the correlation between unemployment and
incarceration, Native Hawaiians may be more likely
to be incarcerated than other racial or ethnic groups in
Hawai‘i.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 67

Of employed Hawai‘i residents 16 years and older, Native Hawaiians are less likely than all
others to participate in management or professional employment, but more likely to
participate in service-oriented employment.

40%

35%

30%

25%

20%

15%

10%

Percent of Native Hawaiians

35.3%

Percent of all others

24.2

22.9% %
21.2

26.8%25.9%

9.0 7.8%
%

management,
professional,
related
occupations

Service
occupations

SALES AND OFFICE
occupations

Farming, fishing,
and forestry
occupations

14.1%
9.7%

construction,
extraction,
maintenance,
and repair
occupations

11.0%
7.0%
production,
transportation,
and material
moving
occupations

Source: U.S. Census Bureau, “Hawai‘i, S0201. Selected Population Profile, Native Hawaiian alone or in any combination, 2006-2008 American Community
Survey,” December 31, 2009.

Incarcerated families
The effects of imprisonment on children and families are
far reaching and can have lasting negative consequences
on families and communities. Parents and other adult
caregivers provide financial and emotional support to
children and other members of families. Incarceration
of a parent has the potential to cause economic disparity,
impedes emotional development in children, and increase
instances of mental health disorders for other members
of the family.
Children are the most vulnerable when a parent is
in prison and commonly experience sadness, anger,
confusion, grief or depression due to separation from
their parents.194 Children whose parents are in prison
are also more likely to develop anti-social behaviors, be
involved in gangs, delinquent behaviors, or drug use than
youth whose parents are not in prison. Research done by
National Council on Crime and Delinquency found that
children of parents in prison are five to six times more
likely to become incarcerated than their peers.195
When a woman is incarcerated, the disruption may be
more severe because 69 percent of the time, women are

How do you tell a 6-year-old
that about his parents – that
they are in jail? How does a
6-year-old deal with that when
he goes to school and is with
his friends?
(‘Ohana of pa‘ahao)
primary caregivers prior to incarceration.196 Children
whose mothers are or were imprisoned are more likely to
have low self-esteem, impaired achievement motivation,
and poor peer relations, with up to 30 percent of such
children developing mental health problems.
For Native Hawaiians, the impact on the family or
‘ohana, has a ripple effect. Native Hawaiian households
are more likely to include multigenerational relatives,
specifically grandparents. In fact, a study conducted
in 2000 found that in 33.9 percent of Native Hawaiian
households grandparents were in some part responsible
for caring for their grandchildren. Situations in which
grandparents or other family members share care-giving

68 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

duties of children do not necessarily signify that parents
are completely absent; one or both parents might be
present but unable to provide full care of children due
to employment or other factors. In fact, the rate of
Native Hawaiian households where the family consists
of school-age children and married parents, and where
both parents are working, is higher than the statewide
rate.

Hawai‘i between 1995 and 1999 found that
approximately 50.5 percent of the youth in juvenile
facilities in Hawai‘i are Native Hawaiian. 200 In 2003,
Native Hawaiian youth were the most frequently
arrested in all offense categories.201 As was previously
discussed, the disproportionate number of arrests and
incarceration could be due to a number of factors,
including concentrated policing and disparities in the
handling of cases.

Given that Native Hawaiians make up the largest
percentage of the state prison population, the impact on
page-68
families is widespread and affects many generations.
The incarceration of parents intensifies a sense of social
marginalization for the Native Hawaiian community
and contributes to the number of Native Hawaiians in
prison.

Native Hawaiian juveniles made up 30 percent of arrests
in 2008 for all offenses and yet Native Hawaiians
comprise 24 percent of the general population.
Native Hawaiian

24%

Juvenile justice

(3,240)

According to the United States Department of Justice,
Office of Juvenile Justice and Delinquency Prevention,
in 2006, there were 96 youth committed to residential
facilities in Hawai‘i, a rate of 72 per 100,000 youth
in the population, and an additional 30 youth were in
secure detention, a rate of 22 per 100,000 youth.197
Comparatively, the national average of commitment to
residential facilities is 205 per 100,000 youth and 84 per
100,000 youth in the general population for detention,
significantly higher than in Hawai‘i.198 More recent data
reported to the Hawai‘i Judiciary Committee in 2009
shows that 1,092 youth were admitted to detention at the
Hale Ho‘omalu Secure Detention Facility in 2008.199
Research shows that Native Hawaiian youth are
disproportionately represented in the juvenile justice
system in Hawai‘i. A study of 805 juvenile cases in

It was hard enough for me to
get a job to pay for myself,
much less take on some else’s
child. I had gone through four
jobs because I had to drive him
to his daycare. What are you
supposed to do?
(‘Ohana of pa‘ahao)

White

30%

Chinese

(4,113)

Japanese
filipino

16%

(2,161)

(741)

Other

24%

(3,240)

(135)

Source: Lydia Seumanu Fuatagavi and Paul Perrone, Crime in Hawai‘i: A
Review of Uniform Crime Reports (Honolulu, HI: Attorney General, State of
Hawai‘i, 2009). http://hawaii.gov/ag/cpja/main/rs/Folder.2005-12-05.2910/
copy_of_cih2007/Crime%20in%20Hawaii%202007.pdf

Multivariate analyses conducted by John MacDonald
of the University of South Carolina using the National
Juvenile Court Data Archive that controlled for age,
gender, court location, poverty, charge seriousness, and
offense history confirmed that Native Hawaiian youth are
treated more harshly than Whites with similar situations
in the juvenile justice system in Hawai‘i.202

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 69

He kalo kanu o ka ‘äina
A taro planted on the land

A poetic reference to a native of the land for many generations

70 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

The costs of incarceration

he criminal justice system, and incarceration
in particular, bears specific costs for states and
communities. In addition to some of the human
costs discussed in this report, the fiscal and
public safety costs are significant.

Although the largest savings in corrections come from
closing whole prisons or wings in a prison, reducing
the number of people in prison is likely to make some
decrease in the overall corrections expenditures in the
state.

In 2008, the state of Hawai‘i spent $222 million on
corrections from the state general fund, which is a 48.8
percent increase from 1998.203 Comparatively, in the same
time period, the total U.S. spending on state corrections
increased approximately 34 percent.204

The cost of prison goes beyond the resources required to
keep a person beyond bars; it extends into the community
and includes costs related to lost wages and taxes, depletes
neighborhood strength, and costs to family members
related to pain and suffering. When including additional
social costs, Thomas Lengyel of the University of Denver
found that the total cost of keeping one person in prison
for 39 months, which is an average length of stay, would
be approximately $600,000.206

The Pew Charitable Trusts estimates that Hawai‘i spent
slightly more than $18,000 per person in prison in 2005,
which is about $5,000 less than the national average.205

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 71

Hawai‘i’s expenditures on corrections increased approximately 50 percent between 1998 and 2008.
Comparatively, the U.S.’s expenditures on corrections increased 34 percent in the same time period.
$250,000

$600,000
$500,000

$147,840

$150,000

$477,300

$356,677

$400,000
$300,000

$100,000
$200,000
$50,000

Hundred Thousands

Thousands

$200,000

$222,000

$100,000

$0
1998

1999

2000 2001 2002

2003

Hawai‘i

2004 2005 2006 2007 2008

United States

Source: National Association of State Budget Officers, State Expenditure Reports, 1999-2008 (Washington, DC: National Association of State Budget Officers,
1998-2009). www.nasbo.org Note: Adjusted for inflation

Costs in context: Select government expenditures209
Annual cost of incarceration – one year210
Average salary of a secondary school teacher
Average salary of a substance abuse and behavioral disorder counselor
Average salary of a licensed practical nurse
Average salary of a mental health counselor
Average salary of a social worker (family services)
Average salary of vocational education teacher (postsecondary)
Average tuition and fees of full time public, in-state, post-secondary education211
Drug Treatment 212
Supportive Housing213
At the same time that corrections costs have gone up with
the number of people in prisons, index crime rates fell.
From 1998 to 2007, Hawai‘i’s incarceration rate increased
13 percent, while the crime rate fell 16 percent.207
Research shows that although incarceration does have
some impact on public safety, there are other means
of achieving the same and more public safety benefits
without the extreme costs.208 For example, expanding
diversion to drug treatment is one way that many states
have improved outcomes at lower costs. As mentioned
in the section dedicated to punitive responses to drug
use, research by the Washington State Institute for Public
Policy has shown that drug treatment offered in the

$18,370
$52,450
$37,830
$38,940
$39,450
$41,920
$49,150
$6,585
$1,849
$11,272

community is not only less expensive than incarceration,
but also provides a greater return in terms of public safety
for every dollar spent. For every dollar spent on drug
treatment in the community there is an $18 dollar return
in public safety savings; comparatively, prison yields 37
cents per dollar spent.
Money spent on incarceration could potentially be
redirected to other agencies that result in more positive
investments in communities. The cost of imprisoning
three people for a year could pay a secondary school
teacher’s salary.

72 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Recommendations

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 73

he recommendations included in this section are
designed to help policymakers, practitioners,
advocates, and communities make choices
to reduce racial disparities, the number of
people in prison generally, and improve life outcomes.
These recommendations include some very specific
suggestions for changing the criminal justice system in
Hawai‘i. First, they include specific recommendations
and suggestions for using the resiliency of the Native
Hawaiian community to improve life outcomes and help
Native Hawaiians transition back to the community.
Second, they provide strategies for targeting racial
disparities drawn from experiences of other jurisdictions
across the United States. Lastly, they provide specific
recommendations to reduce the number of people in
prison generally. Many of these recommendations come
from formerly incarcerated people, advocates, treatment
providers, and corrections officials in Hawai‘i.

Cultural Resilience
and Protective Factors
When considering recommendations for reducing
the impact of the criminal justice system on Native
Hawaiians, it is necessary and most effective to access
the protective nature and strength of Native Hawaiian
culture for Native Hawaiians. This is important because
a one-size-fits-all approach to reducing racial disparities
is not likely to work and secondly, research shows
that Native Hawaiian cultural values and traditions are
supportive and healing that promote resiliency for Native
Hawaiian people.214
Resilience, generally, refers to the ability of people
to cope, recover, and even, transcend psychosocial,
physical, and spiritual challenges. Having a safe, healthpromoting environment and access to a range of social
resources are considered basic to success in “bouncing
back” from the stresses of life. Other resiliency factors
include the capacity to connect, foster, and take leadership
in social networks, organizations, and systems. Cultural
resilience refers to the capacity of a cultural group to
maintain and develop values, knowledge, and skills
crucial to proactively engaging challenges associated
with cultural, historic, and other types of trauma.215
Resiliency is a central feature of not only ensuring that
Native Hawaiians do not come into contact with the
criminal justice system, but that if they do, that they are
able to leave the system and never return.

Research on promoting the health and well-being of
Native Hawaiians has found that in order to fully realize
the strength of Native Hawaiian culture and values,
Native Hawaiians must be involved in the design and
implementation.216 Recommendations and reflections of
Native Hawaiians about cultural values as a foundation
for reducing contact with the criminal justice system are
included here.
1. Honoring the Sacred, Forgiveness, and Successful
Entry Back
Making Native Hawaiian culture central to the reentry
process is important to Native Hawaiians coming out of
prison. Building on cultural pride and positive identity
construction could help Native Hawaiians return to
communities. Research by A. Aukahi Austin regarding
ethnic pride and resiliency as related to substance use
and violent behavior shows that ethnic pride serves as
a protective or even preventative factor against violence
and encourages resiliency after a violent experience.217
One participant explains that valuing and holding sacred
Native Hawaiian culture could help Native Hawaiians
stay out of the criminal justice system.

Sacredness is the root of a lot of my beliefs to
rehabilitation approaches, the sacredness that comes
through our culture. Through teaching about cultural
practices, we introduce an understanding of the
sacredness that automatically brings out a level of
respect. The more sacredness we give pa‘ahao through
culture, the more we are teaching them to be pono
[morale, ethical, righteous].
(Community Advocate/Volunteer)
Another participant explains that the principle of the
pu‘uhonua, a city of refuge or sanctuary, could be
applied to the criminal justice system. When a person
emerges from the system, they are forgiven and they can
return to the community without the continued burden
of the criminal justice system. This idea is particularly
important as it pertains to the restrictions placed on
formerly incarcerated people regarding jobs, education,
and housing.

74 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Traditionally, Hawaiians had the pu‘uhonua. If you
violated the law and you were successful in getting to
the pu‘uhonua, no one could touch you. I remember my
kupuna [elder] saying, “if you can reach the wall, you
are forgiven. While you stay there, you learn to live a
forgiven life.” When return was made, the person went
through that ‘system’ and everything was made pono
again. He was accepted back and had the chance to
become a productive member of that community. Today,
we have lost that ability to bring someone back into the
community. Programs like that are needed, forgiveness
is needed, too.
(Correctional Official)
At the same time, however, there cannot be a perpetuation
of a colonial modality of forcing cultural programs on
Native Hawaiians. In addition, connection to culture
should occur before a person is in contact with the
criminal justice system.

Some cultural programs can still position prisoners
as subjects that need to be repaired through a
reconnection with their culture. But how does that really
benefit prisoners? How does that really deeply benefit
people re-entering?
(Community Advocate/Volunteer)
2. Kuleana (Responsibility within the context of the
collective)
Kuleana, or responsibility to the greater good, is another
cultural strength that is central to the process of helping
Native Hawaiians either stay out of the criminal justice
system or return to communities after prison. According
to survey research from Kamehameha Schools and a
Hawai‘i Community Survey, Native Hawaiians have
strong ties to their communities and are involved
in community service. Fifty-one percent of Native
Hawaiians participate in community organizations,
with 48.7 percent taking leadership roles when they are
involved in the community.218 Participants in this project
confirmed the importance of kuleana, as well.

I like give back to the community—help ‘em out in
programs…’cause I don’t forget where I come from.
(Former Pa‘ahao/Volunteer,Käne)
My father and mother were both very active and I learned
the term ‘social responsibility’ when I was about three
years old. Being a person, you are supposed to be an
instrument of social change. That is part of your kuleana.
(Treatment Provider)
I really wanted to go into corrections because I felt I
had an obligation to give back to Ke Ali‘i Pauahi, to give
to her what she gave me while attending Kamehameha
School. I entered the prison system with hopes to see
what I could do for the “lost sons of Hawai‘i”, which I
really knew were the Native Hawaiians.
(Correctional Official)
3. Pili, Close Relations, and Feeding with Learning
Native Hawaiian culture draws strength from community
and family building, as well as communication. For
example, the process of ho‘oponopono, which is a
ritualized process of “setting to right; to make right;
to restore and maintain good relationships among
family and family-and-supernatural powers,” was once
practiced daily. Ho‘oponopono involved prayer with
family and a discussion of problems and resolutions.
The values associated with ho‘oponopono are love
and affection (aloha); unity, agreement, and harmony
(lökahi); and family and community (‘ohana).219 It is a
sacred, culturally valuable process that draws on family
and community for support and healing.
Participants in this project talked about meeting people
where they are in their lives and learning together to
resolve problems.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 75

Maui Being Empowered and Safe Together (BEST)
Hawai‘i has several initiatives to smooth the transition from prison to the community. In 2003, Maui Economic
Opportunity, Inc. and the Department of Public Safety created and administered Being Empowered and Safe
Together (BEST) to prepare people returning to the community from the Maui Community Correctional Center. A
BEST review committee determines the appropriate level of services for each person, a housing coordinator helps
locate housing, and other case workers identify other supports such as child care, training, transportation, and
mentoring to help people stay out of prison. The cornerstone of BEST is a cultural renewal component, which uses
Native Hawaiian culture as a means of promoting self-transformation and helping people move beyond the label
“criminal.” The courses are open to all people and classes include Hula, reading circles, and family reunification
cultural activities.
According to a 2009 evaluation of BEST, its outcomes are promising. BEST participants who are deemed “high risk”
were shown to have a lower recidivism rate than people who are “high risk” and did not participate in BEST (47.1
percent vs. 88.2 percent). BEST participants are also less likely to be convicted of a new crime than people who
do not participate. Approximately 24 percent of BEST participants were convicted of a new crime from June 2003
to June 2007, compared to 42.3 percent of people who did not participate. In addition, the study shows a savings
of $13,643 per participant in terms of costs related to the criminal justice system and public safety.
Sources:
Maui Economic Opportunity, Inc., “Frequently Asked Questions About the BEST Program and BEST House,” January 26, 2010.
http://meoinc.charityfinders.org/BEST_FAQ
Marilyn Brown and others, Impact and Cost-Benefit Analysis of Hawai‘i’s Serious and Violent Offender Reentry Initiative: The BEST
Program (Hilo, HI: University of Hawai‘i at Hilo, 2009).

to inu [drink] from what you teach and digest it. So, that
they can stand up and be proud. No hold down their head
and be willing to build a foundation that is pa‘a [firm,
solid] and pono [moral, right]. So that no matter what
kine come, they not going fall down again, because they
have that foundation.
(Treatment Provider)
We want to nurture them, help them heal, have a
reciprocal learning process so we’re working through
these issues—together. And we’re sitting down on the
ground with them and we’re working things together
through a relationship. Indigenous people have
processes. As Hawaiians, we have our processes for
talking through things, like ho‘oponopono.
(Community Advocate)
We met these inmates who were struggling, wanting to
learn Hawaiian Makahiki ceremonies, Hawaiian cultural
practices…40 men wanting and struggling to learn, but
having only one Hawaiian dictionary. I was appalled. So,
we taught them specific ceremonies related to Makahiki,

but underneath the Makahiki ceremony theme, interwoven
and running parallel was this sense of Hawaiian identity,
building and healing, and ho‘oponopono [spirituallygrounded and structured discussion intended to maintain
wellness and resolve conflict] .
(Community Advocate)
Some of the participants in this project, recommend
courses that teach language and history to convey culture
prior to leaving prison. Learning in prison, especially if
it is done as a partnership, could help people transition
and move forward after prison.

I don’t know how to speak Hawaiian. We want to be
taught about our culture. But how come they can’t have
somebody –like a volunteer--teach the basics of our
language or our roots? For me, I want to search my
roots. How do you even start tracing your roots? Knowing
‘who’ you are, ‘where’ you come from is important,
especially for individuals like myself…it’s like a kind of
healing to really imua [move forward].
(Former Pa‘ahao, Wahine)

76 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

It’s easy to be trampled over when you don’t know
‘who’ you are, ‘what’ your rights are. Knowledge to me
is important…cultural-language programs, programs
that help you transition from prison to furlough are
important.
(Former Pa‘ahao, Wahine)
The administrator was very open to having classes for
pa‘ahao. They wanted us to do a university program
so that women would learn about what was available
here, learn to take notes, take tests, sitting through
a lecture, and stuff like that. And I decided to teach a
Hawaiian history class [course] and I did a presentation
on women leaders like Lili‘uokalani who went beyond the
stereotype that Hawaiian women don’t do much. And the
point was that traditional leaders had strengths and that
this was part of Hawaiian women’s genealogy—this is
what you can model yourself after. And the women got
really turned on to it!
(Family Member/Volunteer)

Targeting Racial Disparities
Concerns about disproportionate contact of youth of
color with the juvenile justice system have brought
about research and best practices for uncovering and
addressing the problem. Entities and initiatives such as
the Burns Institute, the Juvenile Detention Alternatives
Initiative, and Models for Change are resources for
this information. Below is a summary of the steps
that those entities employ to reduce racial disparities,
largely adopted from the W. Haywood Burns Institute
in California.220
1. Form a Governing Collaborative
Hawai‘i should establish a committee responsible for
examining local policies and practices, and directing
the work of reducing disproportionate contact of
Native Hawaiians. This governing collaborative should
combine traditional and non-traditional stakeholders
such as judges, prosecutors, defenders, law enforcement
officers, and probation officers as well as community

representatives, local cultural ambassadors, schools,
advocates, parents, former pa‘ahao and youth.
Specifically, the governing collaborative should have the
following features, many of which are also included in
well-researched approaches to improving the health of
Native Hawaiians:
• Diversity and community participation: To fully
draw from the unique culture and spirit of leadership
among Native Hawaiians, local organizations and
community representatives should be equallyrespected decision-makers in the collaboration.
Participants should be familiar with language,
acronyms, processes and positions that make up the
local criminal justice system and system participants
should be familiarized with various aspects of
Hawaiian culture. In all aspects of the collaboration,
the specific historical and social context of Native
Hawaiians in Hawai‘i should be considered and
should always be a focus when collaborating.
While the “culture of politeness” is a valuable
tradition in Hawai‘i, it is imperative to avoid
situations where those in the collaborative “favor
niceties and platitudes over an honest and challenging
conversation regarding why local policies and
practices contribute to racial and ethnic disparity.”
Often, the Burns Institute warns, this “culture of
politeness” can become a proxy for inaction. At the
same time, the collaborative’s decisions should be
made by consensus. Even if this method is more timeconsuming, it produces better results than a majority
vote, which may alienate a minority and may end up
sabotaging the decision-making process. Consensus
also better ensures equal and full participation of all
parties in the collaboration. At all times, discussions
and deliberations must always be undertaken in an
atmosphere of genuine respect and dignity for those
who are imprisoned.
• Local staff: On behalf of the collaboration, a
person in the community must staff and manage the
disparity reduction effort on a full-time basis.221 This
coordinator must be comfortable interacting with a
broad range of decision-makers, must be familiar
with Native Hawaiian culture and values, and should
possess knowledge about the workings of the local
criminal justice system and the community providers.
The coordinator’s duties will include organizing a
governing collaborative and committee meetings,

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 77

Commission on Reducing Racial Disparities in the Wisconsin Justice System
In March 2007, Governor Doyle of Wisconsin signed an Executive Order recognizing the disparate treatment
of African Americans and Hispanics in the criminal justice system and establishing a Commission on Reducing
Racial Disparities in the Wisconsin Justice System. The Commission worked with scholars, experts, and government
officials to closely examine the problem and develop a report on the issue. The final report includes an
assessment of data and a summary of community meetings held throughout the state.
Included in the recommendations, the Commission recommends accurate, current data; interagency
collaboration; investments in community programs and services; and investments in improving the availability of
treatment. The report goes on to make specific recommendations to various criminal justice agencies, including
the legislature.
The report and the Commission itself demonstrate Wisconsin’s commitment to reducing racial disparities in the
criminal justice system in their state.
Source: Commission on Reducing Racial Disparities in the Wisconsin Justice System, Final Report (Madison, WI: Governor’s Office,
February 2008). ftp://doaftp04.doa.state.wi.us/doadocs/web.pdf

preparing meeting minutes, organizing and assisting
in presenting data, and monitoring compliance with
the disparities work plan.
• Goal-setting and work plan: Establishing a specific
goal and outlining the steps to achieve it is crucial
in reducing racial disparities. The collaboration
must establish a consistent meeting schedule with
adequate time for deliberation and consensus, create
a common agenda, and develop a work plan. This
work plan should enumerate the specific tasks the
collaborative plans to complete, include deadlines,
and the individuals responsible for completing the
tasks. A measurement system should be built into
the work plan to ensure progress.
• Government leadership and support: Government
entities, that may include the legislature or
administrative agencies, could provide technical,
financial, or in-kind support to the efforts of the
collaborative.
2. Data Collection and Decision Point Analysis
Accurate, current, and consistent data is critical to
understanding where disproportionality is occurring in
the system. Quantitative data is important, but qualitative
data gathered from staff, people who are incarcerated,
people on supervision in the community, advocates, and
treatment providers will fill in the gaps. As mentioned
previously, engaging the Native Hawaiian community in
the process of implementation of solutions will increase
their effectiveness.

• Consistent data collection: Continued data
collection and analysis of the racial disparities in
Hawai‘i’s criminal justice system is necessary to
provide the foundation for identifying whether, to
what extent, and at which decision-making points
disproportionality of Native Hawaiians in the criminal
justice system exists, and where further strategies for
change can be developed. Although the contributors
to this project were able to conduct many analyses
with data provided by the Hawai‘i Criminal Justice
Data Center, the data was not necessarily consistent
across agencies and in some cases it was difficult
to determine exactly what the data represented.
For example, given that arrests did not include the
controlling charge, it was difficult to determine the
primary cause of the arrest or the offense.
• Data should be available for community-based
initiatives: The continued effort to collect and
analyze data must be combined with a local effort to
use the data to create the changes the collaborative
decides are necessary. It is evident that Native
Hawaiians have strong ties to their communities
and many are involved in community service. These
supportive factors can help provide the foundation for
community-based initiatives that the collaborative
should make use of to meet its goals.
• Defining and measuring success: Defining success
begins with an examination of the existing baseline
data to determine the level of ethnic disparities in
Hawai‘i. For example, one of the collaboration’s

78 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Hawai‘i County Police Department
With support from the Office of Hawaiian Affairs, the Hawai‘i County Police Department implemented a program
that includes training to law enforcement officers in the areas of cultural competency, crisis intervention,
homelessness and mental illness. Officers are better able to respond to mental health crisis with mental health
services, thereby reducing the number of arrests. Officers also use bikes rather than patrol cars to put them closer
to communities and make them more accessible.
Source: Office of Hawaiian Affairs

ultimate goals may be having the proportion of
Native Hawaiians in the overall Hawai‘i population
reflected at parity in the criminal justice system.
However, more important than a reduction in
percentages of Native Hawaiians in the criminal
justice system is the reduction of inappropriate
detentions and disparate policing practices that have
a disproportionate impact on Native Hawaiians. Data
should be used to regularly evaluate the effects of
their current policies and practices, and to assess the
relationship between modifications to these policies
and practices and subsequent reductions in racial,
ethnic, and gender disparities.
• Objective screening tools: Recent innovations in
screening tools or risk assessment instruments have
the potential to reduce disproportionate contact with
the criminal justice system for Native Hawaiians.222
Screening tools can be used in initial decisions related
to pretrial detention, needs assessment, release
decisions, and placement decisions. Objectivescreening tools must also be monitored and updated
at designated intervals in order to ensure fairness
and efficiency in arrests.223 Hawai‘i could develop
its own objective screening tool by using a balance
of accepted design principles, test protocols, and
local practice in order to determine who should be
detained and released.
• Interagency collaboration within the criminal
justice system: Because of the interrelated nature
of different agencies in the criminal justice system,
it is necessary to share data and information across
agencies. Hawai‘i currently has a few different
interagency collaboratives dedicated to changing
the criminal justice system. One is the Interagency
Council on Intermediate Sanctions, a collaborative of
the Judiciary, which includes Adult Client Services
(probation), the Department of Public Safety, the

Hawai‘i Paroling Authority, the Department of
Health, and the State Attorney General, and it aims
to reduce recidivism and better meet the needs of the
people in the system.224 This type of collaboration
could be used to determine the junctures in the
system at which racial disparities could be addressed
and reduced.
Efforts should be made to include non-traditional
partners in the effort to reduce incarceration of
Native Hawaiians. These partners may include
parents, community-based service providers and
grassroots organizations that demonstrate interest in
disproportionate minority contact issues.225

Reducing contact with the criminal
justice system for everyone
In addition to a targeted effort to reduce the
disproportionate impact of the criminal justice system
on Native Hawaiians, Hawai‘i and its counties should
work to reduce incarceration and contact with the
criminal justice system overall. This section includes
recommendations drawn directly from people in Hawai‘i
with experience with the criminal justice system:
formerly incarcerated people, treatment providers, and
corrections officials.
• Reduce arrests: Arrests are the gateway to the
criminal justice system. Law enforcement should
not consider issuing more citations for certain
offenses, especially those related to homelessness
and other quality of life offenses. Arrests for lowlevel non-violent offenses also use significant law
enforcement resources without having a significant
impact on public safety.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 79

• Release more people pretrial: Courts could
divert people who need mental health or substance
abuse treatment to those services rather than the
criminal justice system. Additionally, courts could
use screening tools and risk assessments to add
confidence to release decisions.
• Implement trauma-informed services: Many
people who come into contact with the criminal
justice system have experienced trauma in their lives.
Trauma may contribute to mental illness or substance
use. Proving trauma-informed services, especially
those that are culturally relevant, will divert people
away from the criminal justice system. Two people
that work closely in the corrections system thought
that trauma-informed services would help reduce
the number of people in prison.

For the majority of incarcerated women, the pathway
to crime is usually unresolved trauma and use of drugs
to deal with unresolved trauma that leads to addiction,
crime, and incarceration. Policy-wise, there is a need
for trauma-informed services that give women a positive
sense of self and a sense of self-efficacy about their
ability to be functional.

• Fully shift probation and parole modalities to
that of service and support over supervision:
Hawai‘i’s parole services already state that it is a
priority to provide services to ensure that people
on parole do not return to prison. Such a modality
should be consistent through all types of supervision
and all offices across the state. Hawai‘i could
consider opening supervision offices in Native
Hawaiian communities, specifically, to ensure that
people on supervision successfully meet the terms
of supervision.
Supervision could also include mentoring programs
either outside the government or in cooperation with
a nonprofit or other advocacy group. One family
member of a person in prison spoke of the need for
networks of support after a person leaves prison:

The women come out and there are many who they
know who have come out before them. But they are not
supposed to interact with each other. Where then do
you go for support when you haven’t built a system of
support? I think a mentoring network might help women
move along. What prevents us [Hawaiian women] from
coming together to move forward? It’s about women
honoring women.

(Treatment Provider)
(Family Member/Volunteer)
You find that many men, too have trauma issues from
abuse…Post-Traumatic Stress Disorder.
(Correctional Official)
• Focus services on people who appear before
the courts frequently: Often people who appear
before the courts multiple times are in need of some
other preventative service. For example, research
on county jails has shown that providing housing
to homeless people decreases their arrests and
appearances before the court.226
• Make treatment available on all the islands:
Currently, treatment services are focused where
there are the most people. However, people on the
neighbor islands should have access to those services
as well.

• Allow for a shorter term of probation: Currently,
probation terms are generally five years or less. An
option to sentence a person to three years or less
would limit the number of people on probation,
which would allow probation to provide more
services to people who might pose a greater risk of
committing another offense.
• Fully implement alternatives to incarceration:
Community-based alternatives have been found to
be cost effective and work to promote public safety.
People who stay in the community have access to
their families, communities, jobs, education, and
other social institutions that support and improve
life outcomes. Community-based alternatives can
include probation, half-way houses, electronic
monitoring, and treatment.

80 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

• Refrain from housing any person from Hawai‘i
in prisons on the continent: The 2009 and 2010,
instances of sexual abuse for women and suspicious
deaths in prisons on the continent are of great concern.
Aside from evidence of abuse and violence in these
facilities, people on the continent are cut off from
families and communities, making transition back to
communities after release more difficult. Given the
strength and support that Native Hawaiians find in
family and community, this separation is particularly
damaging. In order to refrain from housing people
on the continent, Hawai‘i must consider placing
more people in alternatives to incarceration.
• For people who are not diverted, increase
services in the prison: Increasing the availability
of programs and services for the people that are in
prison will help people prepare to be released and
can also help people qualify to be released earlier,
thus reducing the number of people in prison.
Formerly incarcerated people describe waiting lists
and “dead time,” in which they can’t access courses
or treatment while in prison.

We’re not doing nothing. We sitting in one place. They
give us these requirements, stipulations for us to do.
Some places that you go, they don’t have the means for
you to do your programs. Like for example--Halawa,
they had no schooling at all but they expect you to get a
GED. How are you supposed to do that? It’s like the State
telling you, “you know what, you going to wait until we
are ready, yeah? We no more funding, yeah, we no more
funds for do the class, then why you give me for do on
top of my stipulations for release then, yeah? No makes
no sense at all. They stipulate that, you do this, you show
us this, [then] you can go home. But no more the classes
for you to take because there’s no more funding!
(Former Pa‘ahao, Käne)
Treatment is a big thing. You gotta get treatment
to whatever level they stipulate you to be. On the
mainland, we had a lot of programs that we could do. I
completed my level three programs—parenting, anger
management. I finished up my GED there and started
taking some college courses. Coming home to Hawai‘i

is good because there is no place like home—you know
what I mean?! But for doing time, better on the mainland
because the opportunities [for programs] are there.
(Former Pa‘ahao, Wahine)
I had to wait until I get out of incarceration and could
go into a furlough program in order to get knowledge,
kokua [help]. We go through culture shock and there is
nothing to prepare us from incarceration to furlough…
which we only have two furlough homes, that’s not
enough. Even when we’re qualified for the system to
send us out, there aren’t enough space for us in the
furlough homes.
(Former Pa‘ahao, Wahine)
The way it’s designed right now—you are not going
to get treatment until your last two years. You get
your drug treatment and then you go to a transitional
program. You can come in for drug charges, get 10
years, and you have to do 10 years. If you’ve got 10
years, then you won’t get your drug treatment until the
end of your eighth year…because there are people with
less time to serve than that and that person is going to
be first. So, the issue is: what do you do with those who
are long-term?
(Correctional Official)
• Provide gender-responsive services: Many
services available in prisons are designed for men.
Women have different needs, especially pertaining
to physical and mental health. Being responsive to
those needs may allow women to leave prison more
quickly, experience positive life outcomes, and not
return to prison. At the same time, however, mental
health services, in particular, must be customized to
help people, including men. Correctional officials
spoke about both issues for this project:

We talk about the disparate treatment of Native
Hawaiians in general. Women are also treated
disparately. Many of the programs that we developed for

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 81

Justice Integrity Act (2009)
First introduced in 2008 by Joseph Biden, then-Senator of Delaware, the Justice Integrity Act would establish
a pilot program implemented by the U.S. Attorneys in 10 federal districts. The program would have advisory
committees that include an array of criminal justice personnel, including prosecutors, defenders, judges,
correctional officers, and other stakeholders. The advisory committee would guide the collection and analysis of
data to show if and when there are racial and ethnic disparities in the criminal justice system in those 10 districts.
The advisory committee will also offer recommendations to reduce racial disparities, focusing on sentencing, law
enforcement practices, and charging practices.
Source: Brennan Center for Justice, “Press Release: Justice Integrity Act of 2009 Introduced,” July 27, 2010. www.brennancenter.
org/content/resource/justice_integrity_act_of_2009_introduced/

the facility are based on programs for male inmates. We
need to create programs that are gender-responsive to
women—incorporate programs that are receptive to
women’s needs—their physical needs in terms of health,
the emotional, family, mental health, and treatment
needs specific to women.
(Correctional Official)
It’s really difficult for the men to bring this [PTSD,
trauma] out. It’s a cultural thing that men don’t cry,
don’t say, just suppress it. If you’re a man, you deal
with it-- suck it up, be tough, move on. That’s how they
were brought up. They do really do have to bring out
the trauma to move on. We may need to find different
[gender-specific] ways to help them bring that out.
(Correctional Official)
• Increase parole eligibility: Parole allows people to
return to their communities to participate in employment,
treatment, education, families, and other systems of
support.227 Further, people on parole are able to contribute
to the local economy through their employment,
financial support for their families and patronizing local
businesses.228 The Hawai‘i Paroling Authority (HPA) has
a great deal of control over the amount of time that people
spend in prison. The HPA could increase good-time
credits, release older people from prison who are generally
considered to be low risk,229 and utilize Hawai‘i’s medical
parole policies to the fullest extent possible.

• Refrain from paroling people directly from
prisons on the continent: People returning from the
continent have had no time to participate in furlough
or work release programs to ensure that they have
a job, community or family support, and a stable
place to live. The state should consistently abide by
the Community Safety Act of 2007 and ensure that
people in prison on the continent should return to
Hawai‘i and should be supported as they transition
to the community.
• Reallocate funds from traditional prisons to
furlough or work release: Furlough and work
release initiatives, including T.J. Mahoney, have been
shown to be successful at helping people return to the
community from prison. Criminal justice officials
believe that more people could be transitioned from
prison to work release, but there are currently not
enough beds. Money could be shifted away from
more expensive prison beds to work release.
• Eliminate the barriers to obtaining work,
education, and housing after prison: The laws that
prohibit a person who has been convicted of a crime
from participating in certain jobs, obtaining some
types of housing, and having access to other social
support system undermines any effort to reduce the
number of people in prison. Without the ability to
support oneself legally outside of prison, a person
is vulnerable to return. One correctional official
interviewed for this project, points out the difficulty
of obtaining a job after conviction for a felony.

There’s a need to look at some of the laws. It’s hard to get a job if you’ve been
convicted for a felony. Maybe there’d be a way to somehow change that, or wipe
it from their record after a time.
(Correctional Official)
• Establish a community oversight committee: To ensure accountability
and address concerns related to the criminal justice system, the oversight
committee will provide recommendations to reduce racial disparities and
coordinate stakeholders to develop sufficient resources for individuals who
are leaving the system.

E ho‘okanaka.
Be a person of worth

These were the very last words of
Kamehameha upon his deathbed.
To his beloved attendants, the
king uttered the famous , “E ‘oni
wale nö ‘oukou i ku’u pono (‘a’ole
i pau)”, Continue to do what I
have done”. Then, turning to his
grieving young son, Liholiho, the
unifier of the Hawaiian islands,
Kamehameha, uttered these words.
“E ho’okanaka”. It is uttered today
as an encouragement to be brave
and courageous as well as to
assert one’s Hawaiian identity. E
ho‘okanaka. Be a person of worth.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 83

APPENDIX A: Quantitative Data and Methods
The Hawai‘i Criminal Justice Data Center has compiled information from county police departments, state and federal law enforcement
agencies, courts, the Attorney General’s Office, prisons, and all other public agencies concerned with crime, courts, and public security.
According to the HCJDC website, “The Hawai‘i Criminal Justice Data Center (HCJDC) is an agency of the Department of the Attorney
General in the State of Hawai‘i and is responsible for the statewide criminal history record information system (CJIS-Hawai‘i), the
statewide Automated Fingerprint Identification System (AFIS), the statewide Sex-Offender Registry, the Adult Criminal Conviction
Information Web Site (eCrim), and the issuance of the Hawai‘i State Identification Cards.”
This clearinghouse function for criminal justice data was created through legislation and one of its primary functions is to provide
online and public information services for interested parties to conduct background checks on criminal history. The HCJDC’s function,
however, provides an excellent source of information to better understand the social and demographic patterns of those who engage
the criminal justice system in Hawai‘i. In particular, because much of the data that is supplied to the HCJDC from the various agencies
includes self-reported information on race and ethnicity, the data compiled by the HCJDC presents an excellent resource for exploring
the question of disproportionate representation of Native Hawaiians in the criminal justice system.
Through a strict confidentiality agreement between the Office of Hawaiian Affairs and its contractors, the HCJDC provided complete
records from its database for all cases that were found in the State of Hawai‘i criminal justice system between 2000 through 2009.
Because the data contain sensitive information on individuals, the researchers secured a restricted, locked office space at the University
of Hawai‘i Department of Urban and Regional Planning (DURP) to conduct all analyses. Only representatives of the Office of Hawaiian
Affairs (OHA) and its contracted researchers were allowed into the room, and the computer on which the data were analyzed was used
solely for the purposes of the project. At the conclusion of the research, the original data files were returned by hand on disc to the
HCJDC. All HCJDC data files, including those derived from the raw data, on the computer used during the processing were deleted
and expunged at the conclusion of the project.
The table below summarizes the datasets provided by HCJDC under this agreement.

Table/Theme

Number of records

Major variables of interest

Comments

Person

148,995 persons

State ID, name, date of birth, sex, race, place
of birth

Arrest

502,748 arrest cases

Arrest date, arrest district

Arrest district was missing for majority of cases,
making investigation relating to “space” impossible

Charge

681,923 charge cases

Charges (1st, arrest, prosecution, court, final),
severity of charges, place of offense

Place of offense was available for a small number of
cases

Disposition

681,902 cases

Disposition, plea

Ideally, the number of charges and dispositions should
be the same. But, clearly some disposition and charge
cases were either entered twice, and evidences of
typographic errors remained in the datasets.

Sentence

368,538 cases

Sentence type, amount, and method
(concurrent or consecutive)

Custody

578,898 cases

Admission date, release date, scheduled
release date,

Supervision

67,669 cases

Source of data: Department of Public Safety
Source of data: Judiciary Adult Probation division, and
the Hawai‘i Paroling authority

84 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

The raw data were provided in multiple Excel files for each
of the themes listed above. Because Excel is unable to store
greater than 65,536 cases, each of these themes came in
multiple files that needed to be combined into single data
sets. For each theme, the multiple excel files were imported
to SPSS (Statistical Package for the Social Sciences) and
assembled into a single SPSS file for each of the above
seven themes.
These seven master data files were then cleaned of
inconsistencies wherever there they were apparent. Some
inconsistencies were clearly identifiable such as the same
record entered twice in the data set. In other cases, values
for some variables were questionable. For example, in some
cases a birth year of 1996 (making the person underage
during the period listed for arrest) or 1880 (making this
person over 120 years old at arrest or incarceration, for
example). More problematic than these obvious errors
were cases where problems were apparent, but it was not
clear that the source of the problem was data entry. If, in
working with supporting staff at the HCJDC, we were
unable to resolve the inconsistencies, we had to make
qualitative choices - involving some degree of arbitrariness
- about how to treat the inconsistencies. Here, the issue was
to eliminate any systematic biases from the data sets. For
example, in file Sentence, a small number of cases (about
1,100 out of 368,538 cases) had multiple rows for the same
sentence type for the same charge. Rather than include
what appeared to be multiple entries for the same case,
we randomly selected one case out of the multiple ones
and retained it in the dataset, while the other cases were
deleted.
The research questions and the desired descriptive statistics
required assembly of theme-based datasets. For example,
investigation of “number of drug charges disaggregated by
race” required variables from two different files: Person (for
race), and Charge (for type of offense, a subset of which is
“drug offense”). For the purpose of this analysis, these two
files were merged in such a way that variables from Person
were looked up. To answer the research questions, many
such dataset merges needed to be performed. A policy was
adopted to keep the maximum possible number of cases
for analysis, and therefore the original seven files were not
universally cleaned of any trace of duplicates or plausible
mistaken entries. Rather, for each research question, and
associated merge, criteria was chosen for deleting cases
so files could be merged with least number of cases being
discarded.

Overall, the seven themes represent three distinct levels
of analysis: person (n=148,995), arrest (n=502,748), and
charge (n=681,923). Since one person can be arrested several
times, and any single arrest can have multiple charges, the
data are “nested” in several “one-to-many” relationships.
For this reason, we were able to link information on custody
supervision and sentence to person, as well as disposition
to charge. While matching of the cases at each of these
levels is not perfect, the number of unmatched records was
relatively small compared to the number of good matches,
strongly suggesting that these errors have minimal effect
on the overall analysis and conclusions.
Assembling each of these data files, cleaning them of
apparent inconsistencies, and linking them across like
levels of analysis, therefore, enabled the researchers to see
with greater clarity how cases move through the various
elements of the Hawai’i criminal justice system, and in
particular to see how Native Hawaiians and other racial
and ethnic groups fare during each of the phases of the
system. Even though this process of carefully cleaning
and assembling these data accounted for any apparent
inconsistencies, the research team is unable to verify that
there are not systematic problems in the way the data were
entered at the departmental and agency level. Although
we have no suspicions that there were any systematic data
entry issues, because the raw data entry was not part of the
research project, the researchers are unable to speak to the
integrity of this aspect of the data.
These HCJDC data files were used to develop descriptive
charts, tables and graphs, as well as to perform a number
of inferential statistical analyses. In general, where the
dependent variables of interest were binary – or the
analytic question was whether an event happened or not
– researchers used logistic regression techniques. An
example of such a question is “whether a Native Hawaiian
is more likely than others to be convicted, controlling for
other explanatory factors.” Where the dependent variables
of interest were metric – or the analytic question was how
much greater the degree of impact – researchers used
ordinary least squares (linear) regression analysis. An
example of such a question is “how much longer is the
average Native Hawaiian probation sentence than all other
ethnic groups’, controlling for other explanatory factors?”
Many descriptive and multivariate models were developed
as part of the research project, and only those results most
directly related to the question of whether Native Hawaiians
are disproportionately represented in the criminal justice
system in Hawai‘i are presented.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 85

APPENDIX B: Qualitative Data and Methods
1. Research questions, interview questions, and study design are developed, with a view towards clarifying
and complementing analysis of statistical data. Study questions and design are discussed with members of
the full research team and the project advisory board.
2. Study receives approval from the Committee on Human Studies, the institutional review board of the
University of Hawai‘i.
3. Study promotion proceeds with guidance from the project advisory board who assist in identifying key
agencies and individuals for participation.
4. Prior to study enrollment, researchers meet with all potential interviewees to provide information on
‘what’ study participation involves. Potential harms and benefits of participation and participant rights are
discussed. Time is given to address individual and group concerns prior to enrollment.
5. Interviews are conducted only after written informed consent is secured.
6. All interviews are conducted by the principal investigator (PI) and/or a graduate assistant (GA) trained and
supervised in the research protocol.
7. All interviews are audio-tape and subsequently, transcribed verbatim by transcriptionists trained in the
research protocol.
8. Transcripts are reviewed and independently coded by the principal investigator and a graduate assistant.
A single interview is continuously analyzed and compared with interviews from participants of the same
group (e.g., content of a former pa‘ahao’s interview is compared with those from other former pa‘ahao)
and with all participants (i.e., content of a former pa‘ahao’s interview is compared with those from family
members, correctional officials, treatment providers, and community advocates).
9. Emerging themes are noted and discussed at weekly meetings of the PI and GA. Monthly feedback is shared
with the project advisory board and other researchers. Advisory board members and other researchers review
study summaries and ensure accuracy of interpretation.
10. The PI and GA continue to collect interview data until a point of data saturation is reached, with saturation
defined as researchers no longer hearing new information.
11. A final coding system of headings and categories is developed and used to code all interview transcripts.
12. Sections of transcripts are filed together by themes, sub-themes, and characteristic actions.
13. Written analysis begins and is linked to the published literature, as well as emerging results from the
analysis of statistical data.

86 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

APPENDIX C
Are Native Hawaiians more likely to be sentenced to prison?
Logistic Regression of Likelihood of Incarceration in the Case of a Guilty Verdict,
Controlling for Age at Arrest, Gender and Charge

S.E.

Step 1a

AgeAtArrest

SevCode

Race=Native Hawaiian

Race=Chinese

-0.766

Race=Filip.

Wald

Sig.

Exp(B)

0.008

324.911

1.008

1.09

0.006

31224.1

2.973

2404.352

0.046

283.038

0.465

-0.456

0.016

765.77

0.634

Race=Nat. Am

0.186

0.067

7.77

0.005

1.204

Race=Japanese

-0.697

0.022

986.789

0.498

Race=Korean

-0.706

0.049

211.391

0.493

Race=Micronesian

-0.895

0.092

95.047

0.408

Race=Black

-0.031

0.029

1.157

0.282

0.97

Race=Other

-0.354

0.02

315.8

0.702

Race=Hispanic

-0.228

0.025

84.931

0.796

Race=Samoan

-0.215

0.03

51.395

0.807

Race=Tongan

-0.936

0.074

161.936

0.392

Race=White

-0.395

0.012

1018.275

0.674

Race=Unknown

0.278

0.043

41.547

1.321

Male

0.368

0.012

884.831

1.445

-2.194

0.023

9477.545

0.111

Constant

a. Variable(s) entered on step 1: AgeAtArrest, SevCode, RaceNHeZ, Male.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 87

APPENDIX D
Do Native Hawaiians get longer probation?
OLS Regression of Probation Length Controlling for Age at Arrest, Gender and Charge

Model 01 (R-sq = .004)
Unstandardized Coefficients

B
33.794
0.862
0.746
-0.735
1.174
-2.412
-7.346
-2.606
-2.231
2.797
-0.023
-12.017
-2.389
0.392
0.01

(Constant)
Chinese
Filipino
NatAm
Japanese
Korean
Micrones
Black
Other
Hispanic
Samoan
Tongan
White
Unknown
Age At Arrest
Severity of Charge
Male

Std. Error
0.398
0.964
0.355
1.503
0.502
1.073
3.202
0.648
0.471
0.618
0.599
1.905
0.3
1.009
0.01

Model 02 (R-sq = .700)
Unstandardized Coefficients

Sig.
0
0.371
0.036
0.625
0.019
0.025
0.022
0
0
0
0.969
0
0
0.698
0.353

B
-29.08
0.07
-0.508
-0.523
-0.446
0.122
-1.296
-0.883
-0.548
2.179
-1.311
-2.473
-0.628
-0.827
0.045
26.027

Std. Error
0.282
0.529
0.195
0.825
0.275
0.59
1.757
0.356
0.259
0.339
0.329
1.048
0.165
0.555
0.006
0.074

Model 03 (R-sq = .701)
Unstandardized Coefficients

Sig.

B
-27.833
-0.004
-0.486
-0.606
-0.47
-0.15
-1.182
-0.824
-0.531
2.209
-1.326
-2.37
-0.698
-0.763
0.045
25.996
-1.433

0
0.894
0.009
0.526
0.105
0.836
0.461
0.013
0.034
0
0
0.018
0
0.136
0
0

Std. Error
0.312
0.529
0.196
0.825
0.276
0.59
1.757
0.356
0.259
0.34
0.329
1.049
0.165
0.555
0.006
0.074
0.155

Sig.
0
0.993
0.013
0.463
0.089
0.799
0.501
0.021
0.041
0
0
0.024
0
0.169
0
0
0

APPENDIX E
Do Native Hawaiians receive longer terms of incerceration?
OLS Regression of Incarceration Sentence Controlling for Age at Arrest, Gender and Charge

Model 01 (R-sq = .012)
Unstandardized Coefficients
B
Std. Error

Model 2 (R-sq = .436)
Sig.

Unstandardized Coefficients
B
Std. Error

Model 3 (R-sq = .437)
Unstandardized Coefficients
B
Std. Error

Sig.

(Constant)

23.122

0.427

0.00

-41.063

0.397

-43.755

0.444

Chinese
Filipino
NatAm
Japanese
Korean
Micronesian
Black
Other
Hispanic
Samoan
Tongan
White
Unknown

12.029
2.79
-5.023
3.182
3.876
-17.365
2.495
-4.738
-4.052
8.08
-15.132
-5.726
-4.26

1.167
0.398
1.524
0.574
1.296
3.026
0.66
0.505
0.611
0.683
2.286
0.305
0.951

0.00
0.00
0.001
0.00
0.003
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00

6.661
-0.098
-2.693
0.812
1.717
-0.848
4.158
-0.378
-2.089
4.272
-3.618
-0.346
-0.117

0.886
0.302
1.167
0.437
0.983
2.323
0.502
0.385
0.466
0.518
1.737
0.233
0.727

0
0.746
0.021
0.063
0.081
0.715
0
0.327
0
0
0.037
0.139
0.872

6.504
-0.31
-2.462
0.696
1.773
-1.415
3.905
-0.618
-2.286
4.041
-3.997
-0.376
-0.361

0.886
0.303
1.167
0.437
0.983
2.323
0.503
0.385
0.466
0.519
1.736
0.234
0.727

0
0.305
0.035
0.111
0.071
0.542
0
0.109
0
0
0.021
0.107
0.619

Age At Arrest

-0.086

0.011

0.00

0.006

0.009

0.486

0.006

0.009

0.515

Severity Code
(treated as ratio scale)

27.123

0.096

27.154

0.097

Male

3.282

0.241

88 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System

Glossary
‘äina – Land, earth
‘ohana – Family, relative, kin group; related
admission – The entrance of a person to a prison.
Admissions are generally used to count the number of
entries to prison in a given time period.
aloha – Love, affection, compassion, mercy, sympathy, pity,
kindness, sentiment, grace, charity
binary – A mathematical function with two variables
charge – In a criminal case, the specific statement of what
crime a person is accused of (charged with). The charge can
be filed by the prosecutor.
collateral consequences – The social and legal exclusions
that a person faces because they have been involved in the
criminal or juvenile justice system. For example, a person
convicted of a felony may not be permitted to hold certain
jobs.
disparity – A dictionary definition refers to disparity as
being markedly distinct in quality or character. Racial
disparities in the criminal or juvenile justice systems refer
to the differences in the way that people experience the
criminal justice system.
disproportionality – The imbalance of representation of
one group when comparing it to a subset of the population.
Disproportionality generally refers to a comparison of
numbers of people across populations.
ho‘oponopono – Lit. To make right; a practice of
reconciliation and forgiveness
Känaka Maoli – Indigenous people of Hawai‘i
kuleana – Responsibility within the context of the collective
license – For this report, license not only refers to a driver’s
license, but also the licenses that are required to hold certain
jobs. For example, some states require a license to be a
child care provider or even a barber.
logistic regression techniques – A model used for prediction
of the probability of occurrence of an event by fitting data
to a logit function logistic curve. It is a generalized linear
model used for binomial regression. Like many forms
of regression analysis, it makes use of several predictor
variables that may be either numerical or categorical.This
model gives the likelihood of a particular outcome given
the occurrence of a set of particular variables.
multivariate model – A statistical method that controls for
factors that might be mediating or affecting relationships
between other variables. As a result, a particular variable
can be isolated to be more confident in a determination of
the relationship it has with another variable.
Nä Kuana ‘Ike – The perspectives of a person.
ordinary least squares regression analysis – A method for

estimating the unknown parameters in a linear regression
model. This method minimizes the sum of squared
distances between the observed responses in the dataset,
and the responses predicted by the linear approximation.
This method essentially establishes a correlation model for
a particular set of factors and then establishes how far from
the model the actual, observed values are. In other words,
the model tells you how likely it is to predict one piece of
information, given another piece of information.
pa‘ahao – An individual who is incarcerated.
parole – The conditional release of a person from prison.
The sentence has not expired and a person on parole is
subject to the terms and conditions of the paroling authority.
parole violations – A person commits a parole violation
if they have not met the terms or conditions set by the
paroling authority. This does not include a new offense.
pili – To join, associate with, be with, be close or adjacent;
close relationship, relative
pretrial detention – Imprisonment of a person in a jail or
detention facility prior to trial or the determination of guilt.
probation – A person can be sentenced to probation either as
the entirety of the sentence or as part of a sentence that also
includes incarceration. Probation requires that the person
serving a probation sentence meet the terms and conditions
set by the probation authority.
probation violations – A person commits a probation
violation if they have not met the terms or conditions set
by the probation authority. This does not include a new
offense.
pu‘uhonua – Place of refuge, sanctuary, place of peace and
safety.
reentry – A person returning to the community from prison.
revocation – When a person on probation or parole is sent
or returned to prison, usually because they have violated the
terms of probation or parole.
snowball sampling – A non-probability method of sampling
that relies on referrals from participants to identify
additional participants.
supervision – When a person is on parole or probation, they
are placed in the community under the management of the
parole or probation authority. In Hawai‘i it is either the
Hawai‘i Paroling Authority or Adult Client Services.
technical violations – When a person on probation or parole
is found to have not obeyed the terms or conditions of
probation or parole, they can be charged with a technical
violation. This does not include a new offense.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 89

(Endnotes)
1 B
ureau of Justice Statistics, “Prisoners under State or Federal
jurisdiction sentenced to more than one year, Federal and State-byState, 1977-2004: Statistical Tables,” December 2005. http://bjs.ojp.
usdoj.gov/content/data/corpop01.csv., West and Sabol, 2009
2 U.S. Census Bureau, Statistical Abstract of the United States, 1981,
102nd Edition (Washington, DC: U.S. Census Bureau, 1981). www2.
census.gov/prod2/statcomp/documents/1981-02.pdf;West and Sabol,
2009; Bureau of Justice Statistics, “Prisoners under State or Federal
jurisdiction sentenced to more than one year, Federal and State-byState, 1977-2004: Statistical Tables,” December 2005. http://bjs.ojp.
usdoj.gov/content/data/corpop01.csv
3 Bureau of Justice Statistics, “Number of sentenced inmates
incarcerated under state and federal jurisdiction per 100,000
population, 1980-2008, Data table.” January 22, 2010. http://bjs.ojp.
usdoj.gov/index.cfm?ty=tp&tid=13
4 Pew Center on the States, One in 100: Behind Bars in America
(Philadelphia, PA: Pew Charitable Trusts, 2008). http://www.
pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_
FINAL_2-1-1_FORWEB.pdf
5 Hawai‘i Criminal Justice Data Center, 2000-2008.
6 Hawai‘i Criminal Justice Data Center, 2000-2008.
7 Office of Hawaiian Affairs, “Databook 2006: Public
Safety,”
March
2006.
www.oha.org/pdf/databook/2006/
DataBook2006PublicSafety.pdf.
8 West and Sabol, 2009.
9 U.S. Census Bureau, “Hawai‘i, S0201. Selected Population Profile,
Native Hawaiian alone or in any combination, 2006-2008 American
Community Survey,” December 31, 2009.
10 Hawai‘i Criminal Justice Data Center, 2009.
11 Hawai‘i Criminal Justice Data Center, 2009.
12 Carl E. Pope and William Feyerherm. Minorities and the Juvenile
Justice System: Research Summary (Washington, DC: Office of
Juvenile Justice and Delinquency Probation, U.S. Department of
Justice, 1995).
13 Noreen Mokuau, “Culturally-based solutions to preserve the
health of Native Hawaiians,” in Benjamin Young (ed.) Health and
Hawaiian Culture (Honolulu, HI: University of Hawai‘i Press,
2005).
14 George Kanahele Ku kanaka: Stand tall (Honolulu, HI: University
of Hawai‘i Press and Waiaha Foundation, 1986) cited in Noreen
Mokuau, “Culturally-based solutions to preserve the health of
Native Hawaiians,” in Benjamin Young (ed.) Health and Hawaiian
Culture (Honolulu, HI: University of Hawai‘i Press, 2005).
15 Patricia L. Ewalt and Noreen Mokuau, “Self-Determination from a
Pacific Perspective,” Social Work 4, 1995.
16 Hawai‘i Criminal Justice Data Center, 2008.
17 Hawai‘i. Rev. Stat. § 571-61.
18 Hawai‘i. Rev. Stat. § 346-19.7.
19 Lau, supra note 22.
20 Hawai‘i. Rev. Stat. § 831-3.1 (c).
21 Hawai‘i. Rev. Stat. § 291E-41(b)(6).

22 U
.S. Census Bureau, “Hawai‘i, S0201. Selected Population Profile,
Native Hawaiian alone or in any combination, 2006-2008 American
Community Survey,” December 31, 2009.
23 Shawn Malia Kana‘iaupuni, Nolan J. Malone, and Koren Ishibashi,
Income and Poverty Among Native Hawaiians (Honolulu,
Hawaii: PASE, 2005). http://www.ksbe.edu/spi/PDFS/Reports/
Demography_Well-being/05_06_5.pdf.
24 K
ana‘iaupuni, Malone, and Ishibashi, 2005.
25 H
arry Messenheimer, Good News: Native Hawaiians Prosper
(Honolulu, HI: Grassroot Institute of Hawai‘i, 2008). www.
grassrootinstitute.org/system/old/Publications/GRIH_
Study_1007.pdf.
26 Angela Wolf, Reducing the Incarceration of Women, (Oakland,
CA: National Council on Crime and Delinquency, 2006). www.
nccd-crc.org/nccd/pubs/2006_WIP_special_report.pdf
27 C
rime Prevention & Justice Assistance Division Department of
the Attorney General State of Hawai‘i, Incarcerated Juveniles and
Recidivism in Hawai‘i (Honolulu, HI: Attorney General, 2001).
http://hawaii.gov/ag/cpja/main/rs/Folder.2006-02-06.3414/hycf2.
pdf.
28 L
ydia Seumanu Fuatagavi and Paul Perrone, Crime in Hawai‘i:
A Review of Uniform Crime Reports (Honolulu, HI: Attorney
General, State of Hawai‘i, 2009). http://hawaii.gov/ag/cpja/main/
rs/Folder.2005-12-05.2910/copy_of_cih2007/Crime%20in%20
Hawaii%202007.pdf
29 Noreen Mokuau, “A Family-Centered Approach in Native Hawaiian
Culture,” Families in Society: The Journal of Contemporary Human
Services 71 (1990).
30 Bureau of Justice Statistics, “Prisoners under State or Federal
jurisdiction sentenced to more than one year, Federal and State-byState, 1977-2004: Statistical Tables,” December 2005. http://bjs.
ojp.usdoj.gov/content/data/corpop01.csv.; West and Sabol, 2009.
31 Bureau of Justice Statistics, “Number of sentenced inmates
incarcerated under state and federal jurisdiction per 100,000
population, 1980-2008, Data table.” January 22, 2010. http://bjs.
ojp.usdoj.gov/index.cfm?ty=tp&tid=13
32 P
ew Center on the States, One in 100: Behind Bars in America
(Philadelphia, PA: Pew Charitable Trusts, 2008). http://www.
pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_
FINAL_2-1-1_FORWEB.pdf
33 Bureau of Justice Statistics, “Prisoners under State or Federal
jurisdiction sentenced to more than one year, Federal and State-byState, 1977-2004: Statistical Tables,” December 2005. http://bjs.
ojp.usdoj.gov/content/data/corpop01.csv.; West and Sabol, 2009.
34 U
.S. Census Bureau, Statistical Abstract of the United States,
1981, 102nd Edition (Washington, DC: U.S. Census Bureau, 1981).
www2.census.gov/prod2/statcomp/documents/1981-02.pdf; West
and Sabol, 2009; “Prisoners under State or Federal jurisdiction
sentenced to more than one year, Federal and State-by-State, 19772004: Statistical Tables,” December 2005. http://bjs.ojp.usdoj.gov/
content/data/corpop01.csv
35 U.S. Census Bureau, “Population Distribution and Population
Estimates Branches U.S. Bureau of the Census,” Release date:
February 1995. http://www.census.gov/popest/archives/1980s/
st7080ts.txt

90 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System
36 U.S. Bureau of the Census, “Hawai‘i Quickfacts,” http://quickfacts.
census.gov/qfd/states/15000.html
37 Hawai‘i State Department of Health, Office of Health Status
Monitoring, special tabulation from the Hawai‘i Health Survey,
January 22, 2010. http://hawaii.gov/dbedt/info/economic/
databook/2008-individual/01/
38 Bureau of Justice Statistics, “Prisoners under State or Federal
jurisdiction sentenced to more than one year, Federal and State-byState, 1977-2004: Statistical Tables,” December 2005. http://bjs.
ojp.usdoj.gov/content/data/corpop01.csv.; West and Sabol, 2009.
39 S.K. Kana‘iaupuni, N. Malone, and K. Ishibashi, Ka huaka‘i:
2005 Native Hawaiian Educational Assessment (Honolulu, HI:
Kamehameha Schools, Pauahi Publications, 2005).
40 State of Hawai‘i, Chapter 10, §10-2 – Definitions, http://hawaii.
gov/elections/statutes/hrs10.pdf
41 Dan Nakaso, “Number of Hawaiians in prison disputed,” The
Honolulu Advertiser, July 25, 2001
42 Hawai‘i State Legislature, 2009 Regular Session, “HCR27
HD1.” www.capitol.hawaii.gov/session2009/lists/measure_indiv.
aspx?billtype=HCR&billnumber=27
43 Hawai‘i State Department of Health, Office of Health Status
Monitoring, special tabulation from the Hawai‘i Health Survey,
January 22, 2010. http://hawaii.gov/dbedt/info/economic/
databook/2008-individual/01/
44 Hawai‘i State Department of Health, January 22, 2010.
45 Jonathan Kay Kamakawiwo‘ole Osorio. Dismembering Lähui.
(University of Hawai‘i Press, 2002).
46 Sally Engle Merry, Colonizing Hawai‘i: The Cultural Power of
Law (Princeton, NY: Princeton University Press, 2000).
47 Queen Lili‘uokalani. Hawaii’s Story by Hawai‘i’s Queen.
(Mutual Publishing, 1990); Haunani-Kay Trask. From a Native
Daughter: Colonialism & Sovereignty in Hawai‘i. (Common
Courage Press, 1993).
48 David Stannard. Disease and Infertility: A New Look at the Demographic Collapse of Native Populations in the Wake of Western
Contact. Journal of American Studies, 24 (1990) 3, 325-350;
Note* The general population count varies by author. Robert C.
Schmitt. Demographic Statistics of Hawai‘i: 1778-1965. (Honolulu, 1968); Robert C. Schmitt. Historical Statistics of Hawai‘i.
(Honolulu, 1977).
49 Lilikalä Kame‘elehiwa, Native Land and Foreign Desires: Pehea
La E Pono Ai? (Bishop Museum Press, Honolulu 1992).
50 Noenoe Silva, Aloha Betrayed: Native Hawaiian Resistance to
American Colonialism (Durham, NC: Duke University Press,
2004); Michael Hass, Institutional Racism: The Case of Hawai‘i
(Westport, CT: Praeger, 1992).
51 Jonathan Kay Kamakawiwo‘ole Osorio. Dismembering Lähui.
(University of Hawai‘i Press, 2002).
52 Noenoe Silva, Aloha Betrayed: Native Hawaiian Resistance to
American Colonialism (Durham, NC: Duke University Press,
2004);
53 Jonathan Kay Kamakawiwo‘ole Osorio. Dismembering Lähui.
(University of Hawai‘i Press, 2002).
54 Osorio, 2002.
55 Osorio, 2002.

56 S
ally Engle Merry, Colonizing Hawai‘i: The Cultural Power of
Law (Princeton, NY: Princeton University Press, 2000); Jonathan
Kay Kamakawiwo‘ole Osorio. Dismembering Lähui. (University
of Hawai‘i Press, 2002).
57 J onathan Kay Kamakawiwo‘ole Osorio. Dismembering Lähui.
(University of Hawai‘i Press, 2002).
58 J onathan Kay Kamakawiwo‘ole Osorio. Dismembering Lähui.
(University of Hawai‘i Press, 2002); Sally Engle Merry, Colonizing Hawai‘i: The Cultural Power of Law (Princeton, NY: Princeton University Press, 2000).
59 N
oenoe Silva, Aloha Betrayed: Native Hawaiian Resistance to
American Colonialism (Durham, NC: Duke University Press,
2004); Jonathan Kay Kamakawiwo‘ole Osorio. Dismembering
Lähui. (University of Hawai‘i Press, 2002).
60 J onathan Kay Kamakawiwo‘ole Osorio. Dismembering Lähui.
(University of Hawai‘i Press, 2002).
61 O
sorio, 2002.
62 Q
ueen Lili‘uokalani. Hawaii’s Story by Hawai‘i’s Queen. (Mutual Publishing, 1990);
63 L
ili‘uokalani, 1990.
64 Lili‘uokalani, 1990.
65 S
ally Engle Merry, Colonizing Hawai‘i: The Cultural Power of
Law. (Princeton, NY: Princeton University Press, 2000);
66 Merry, 2000.
67 M
erry, 2000.
68 R
aeDeen Keahiolalo-Karasuda, The Colonial Carceral and
Prison Politics in Hawai‘i. (ProQuest LLC. 2009).
69 U
. Hasager and J. Friedman, eds., Hawai‘i: Return to nationhood
(Copenhagen: International Work Group for Indigenous Affairs,
1994). cited in Kai Duponte and others, ‘Ike Hawai‘i: A Training
Program for Working with Native Hawaiians (Honolulu, HI:
University of Hawai‘i, 2009).
70 Aboriginal Healing foundation, Historic Trauma and Aboriginal
Healing (Ottowa, Ontario: Aboriginal Healing Foundation, 2004).
cited in Kai Duponte and others, ‘Ike Hawai‘i: A Training Program
for Working with Native Hawaiians (Honolulu, HI: University of
Hawai‘i, 2009).
71 N
oa Emmett Aluli and Davianna Pomaika‘i McGregor, “The healing
of Kaho‘olawé,” in Hawai‘i: Return to nationhood (Copenhagen:
International Work Group for Indigenous Affairs, 1994)
72 J . Këhaulani Kauanui, Hawaiian Blood: Colonialism and the
Politics of Sovereignty and Indigeneity (Durham, North Carolina:
Duke University Press, 2008).
73 William H. Rodgers, Jr. “The Sense of Justice and the Justice of
Sense: Native Hawaiian Sovereignty and the Second ‘Trial of the
Century,’ Washington Law Review 71 no. 380 (1996); RaeDeen
Keahiolalo-Karasuda, The Colonial Carceral and Prison Politics
in Hawai‘i (Honolulu, HI: RaeDeen Keahiolalo-Karasuda, 2008).
74 Federal Bureau of Investigation, “2008 Crime in the United States,
Table 69: Arrests by State,” January 20, 2010. http://www.fbi.gov/
ucr/cius2008/arrests/state.html

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 91

75 Lydia Seumanu Fuatagavi and Paul Perrone, Crime in Hawai‘i:
A Review of Uniform Crime Reports (Honolulu, HI: Attorney
General, State of Hawai‘i, 2009). http://hawaii.gov/ag/cpja/main/
rs/Folder.2005-12-05.2910/copy_of_cih2007/Crime%20in%20
Hawaii%202007.pdf
76 Hawai‘i Criminal Justice Data Center, 2000-2008.
77 Honolulu Police Department, “2008 Arrest data by sex, age, and
race for people 18 and older,” Received September 28, 2009.
78 Fuatagavi and Perrone, 2009.
79 National Corrections Reporting Program, “Online Analysis, 2002,
Dataset 0001.”
80 Rhiana Kohl, Hollie Matthews Hoover, Susan M. McDonald and
Amy L. Solomon, Massachusetts Recidivism Study: A Closer
Look at Releases and Returns to Prison (Washington, DC: The
Urban Institute, 2008). www.urban.org/UploadedPDF/411657_
massachusetts_recidivism.pdf
81 Department of Public Safety, “Institutions Division,” June 3, 2010.
http://hawaii.gov/psd/corrections/institutions-division.
82 Jail Inmates at Midyear 2009 (Washington, D.C.: Bureau of Justice
Statistics, 2010).
83 Hawai‘i Criminal Justice Data Center, 2000 – 2009.
84 See, for example, Anne Rankin, “The Effect of Pretrial Detention,”
New York University Law Review 39 (1964), 641–655; Michael
R. Gottfredson and Don M. Gottfredson, Decision Making in
Criminal Justice: Toward a Rational Exercise of Discretion (New
York: Plenum Press, 1988); Williams, “The Effect of Pretrial
Detention on Imprisonment Decisions,” 299–316; C. E. Frazier and
J.K. Cochran, “Detention of Juveniles: Its Effects on Subsequent
Juvenile Court Processing and Decisions,” Youth and Society 17,
no. 3 (1986): 286-305
85 Rod Morgan, “England/Wales,” in Dünkel and Vagg, Waiting for
Trial, 198.
86 Office of Hawaiian Affairs, “Databook 2006: Public
Safety,” March 2006. www.oha.org/pdf/databook/2006/
DataBook2006PublicSafety.pdf.
87 Hawai‘i Criminal Justice Data Center, 2000-2009
88 Hawai‘i State Department of Health, Office of Health Status
Monitoring, special tabulation from the Hawai‘i Health Survey,
January 22, 2010. http://hawaii.gov/dbedt/info/economic/
databook/2008-individual/01/
89 Lauren E. Glaze and Thomas P. Bonczar, Probation and Parole
in the United States, 2008 (Washington, DC: Bureau of Justice
Statistics, December 2009). http://bjs.ojp.usdoj.gov/content/pub/
pdf/ppus08.pdf
90 Personal Communication with Janice Yamada, Probation
Administrator, Adult Client Services Branch of the First Circuit
Court, sharing data submitted to the U.S. Department of Justice,
Bureau of Justice Statistics.
91 Hawai‘i Criminal Justice Data Center, 2009.
92 M. Kevin Gray and others, “Examining Probation Violations: Who,
What, and When,” Crime and Delinquency 47, no. 4, October
2001, 537-557.
93 Peggy Burke, When Offenders Break the Rules (Washington, DC:
The Pew Center on the States, Public Safety Performance Project,
2007). www.pewpublicsafety.org.

94 J ames P. Lynch and William J. Sabol, “Assessing the Effects of
Mass Incarceration on Informal Social Control in Communities,”
Criminology and Public Policy 3, issue 2 (2004).
95 M
arc Mauer and Meda Chesney-Lind, eds., Invisible Punishment:
The Collateral Consequences of Mass Imprisonment (Washington,
DC: New York, NY, 2002).
96 D
epartment of Public Safety, Weekly Population Report, August
2, 2010 (Honolulu, HI, Department of Public Safety, August 2,
2010).
97 D
epartment of Public Safety, Weekly Population Report, August
2, 2010 (Honolulu, HI, Department of Public Safety, August 2,
2010)
98 West and Sabol, 2009.
99 West and Sabol, 2009.
100 West and Sabol, 2009.
101 Hawai‘i State Department of Health, Office of Health Status
Monitoring, special tabulation from the Hawai‘i Health Survey,
January 22, 2010. http://hawaii.gov/dbedt/info/economic/
databook/2008-individual/01/
102 H
awai‘i Department of Public Safety, 2008 Annual Report
(Honolulu, Hawai‘i, Department of Public Safety, 2009). http://
hawaii.gov/psd/administration/publications/annual-reports/
department-of-public-safety/PSD-AnnualReport2008.pdf
103 West and Sabol, 2009.
104 R
aeDeen Keahiolalo-Karasuda, The Colonial Carceral and
Prison Politics in Hawai‘i (Honolulu, HI: RaeDeen KeahiolaloKarasuda, 2008).
105 Small sample sizes may contribute to the significance of longer
sentence lengths Blacks, Samoans, and Chinese people.
106 H
awai‘i Criminal Justice Data Center, 2000-2008.
107 Office of Hawaiian Affairs, “Databook 2006: Public
Safety,” March 2006. www.oha.org/pdf/databook/2006/
DataBook2006PublicSafety.pdf.
108 Associated Press State and Local Wire, “Inmates relocated after
Ky. prison sex assaults,” Associated Press, September 3, 2009.
109 Honolulu Advertiser, “Hawai‘i inmate killed in Arizona prison,”
Honolulu Advertiser, February 20, 2010.
110 D
enby Fawcett, “Hawai‘i Family Seeking Answers About
Inmate’s Death,” KITV – Honolulu, June 21, 2010. http://today.
msnbc.msn.com/id/37794421/ns/local_news-honolulu_hi/
111 Hawai‘i Paroling Authority, The Parole Handbook (Honolulu,
HI: Hawai‘i Paroling Authority, 2004). http://hawaii.gov/psd/
attached-agencies/hpa/Parole-Handbook.pdf/view
112 Timothy Wong, Hawai‘i Recidivism Study, A Three-year Baseline
Follow-Up Analysis (Honolulu, HI: Interagency Council on
Intermediate Sanctions, January 2009). http://hawaii.gov/
icis/documents/copy_of_SARA-DVSI%20Exploratory%20
Study%20%28Oct%202008%29.pdf
113 West and Sabol, 2009.
114 G
ene Kassebaum and others, Parole Decision Making in
Hawai‘i: Setting Minimum terms, Approving Release, Deciding
on Revocation, and Predicting Success and Failure on Parole
(Honolulu, HI: Attorney General of the State of Hawai‘i, August
2001). www.cpja.ag.state.hi.us.
115 G
ene Kassebaum and others, August 2001.

92 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System
116 Crime Prevention and Justice Assistance Division, Survival on
Parole: A study of post-prison adjustment and the risk of returning
to prison in the state of Hawaii (Honolulu, HI: Department of the
Attorney General, 1999).
117 Hawai‘i Criminal Justice Data Center, 2009.
118 Aboriginal Healing foundation, Historic Trauma and Aboriginal
Healing (Ottowa, Ontario: Aboriginal Healing Foundation,
2004). cited in Kai Duponte and others, ‘Ike Hawai‘i: A Training
Program for Working with Native Hawaiians (Honolulu, HI:
University of Hawai‘i, 2009).
119 State of Hawai‘i Department of Human Services, A Statistical
Report on Child Abuse and Neglect in Hawai‘i in 2008 (Honolulu,
HI: Department of Human Services, 2008). www.hawaii.gov/dhs/
protection/social_services/child_welfare/ChildAbuse
120 Hawai‘i Criminal Justice Data Center, 2009.
121 Substance Abuse and Mental Health Services Administration,
“Appendix C: Tables of Change between the 2005-2006 and the
2006-2007 Model-Based Estimates (50 States and the District of
Columbia), by Measure,” February 11, 2010. www.oas.samhsa.
gov/2k7State/AppC.htm#TabC-1.
122 Federal Bureau of Investigation, “Uniform Crime Report,” Crime
in the United States, Table 69 Arrests by State, www.fbi.gov/ucr/
ucr.htm
123 Hawai‘i Criminal Justice Data Center, 2008.
124 Substance Abuse and Mental Health Services Administration,
“2008 National Survey on Drug Use and Health: Detailed Tables,
Prevalence Estimates, Standard Errors and Sample Sizes,” 2009.
www.oas.samhsa.gov/nsduh/2k8nsduh/2k8Results.cfm#2.7
125 Alcohol and Drug Abuse Division, 2004 Treatment Needs
Division (Honolulu, HI: Hawai‘i Department of Health, 2007).
http://hawaii.gov/health/substance-abuse/prevention-treatment/
survey/2004needsassessment.pdf
126 Hawai‘i Criminal Justice Data Center, 2008.
127 Philip Beatty, Amanda Petteruti, and Jason Ziedenberg, The
Vortex: The Concentrated Racial Impact of Drug Imprisonment
and the Characteristics of Punitive Counties (Washington, DC:
Justice Policy Institute, 2007).
128 Harry G. Levine and Deborah Peterson Small, Marijuana Arrest
Crusade: Racial Bias and Police Policy in New York City 19972007 (New York, NY: New York Civil Liberties Union, 2008).
www.nyclu.org/files/MARIJUANA-ARREST-CRUSADE_
Final.pdf
129 Ray Rivera, Al Baker, and Janet Roberts, “A Few Blocks, 4
Years, 52,000 Police Stops,” The New York Times, July 11,
2010.
http://www.nytimes.com/2010/07/12/nyregion/12frisk.
html?pagewanted=1&_r=2&hp
130 Haw. Rev. Stat. § 712-1240.7 (2009) & Haw. Rev. Stat. § 7121240.8 (2009).
131 Hawai‘i Criminal Justice Data Center, 2009
132 Department of Health, Fiscal year 2006 admissions to treatment,
Personal communication.

133 O
ffice of Applied Studies, Substance Abuse and Mental Health
Services Administration, “Table 6b: Admissions by State or
jurisdiction, according to primary substance of abuse: TEDS
2007, Percent distribution,” February 8, 2010. http://www.oas.
samhsa.gov/teds2k7highlights/TEDSHighl2k7Tbl6b.htm
134 A. Napeahi and others, “Culture as a protective factor in two
prevention programs,” Responding to Pacific Islanders: Culturally
Competent Perspectives for Substance Abuse Prevention
(Washington, D.C.: Department of Health and Human Services,
1999).
135 Substance Abuse and Mental Health Services Administration,
National Survey of Substance Abuse Treatment Services, Hawai‘i,
2007. (Washington, DC, Department of Health and Human
Resources, 2007).
136 S
teve Aos, Marna Miller, and Elizabeth Drake, Evidence-Based
Public Policy Options to Reduce Future Prison Construction,
Criminal Justice Costs, and Crime Rates (Olympia, WA:
Washington State Institute for Public Policy, 2006). www.wsipp.
wa.gov.
137 C
arl E. Pope and William Feyerherm. Minorities and the Juvenile
Justice System: Research Summary (Washington, DC: Office of
Juvenile Justice and Delinquency Probation, U.S. Department of
Justice, 1995).
138 In Hawai‘i, judges may assign a court-appointed attorney to a
case at the request of a person appearing before the court. Courtappointed attorneys are often private counsel that is retained by
a small fee by the Judiciary. In order to have a public defender
removed from a case and have private counsel appointed to a case,
a person must show a conflict of interest or that the relationship
with the public defender in relation to the case is troubled.
139 P
atti Puritz, A Call for Justice: An Assessment of Access to Counsel
and Quality of Representation in Delinquency Proceedings
(Washington, DC: National Juvenile Defender Center, 1995).
140 E. H. Hoytt, V. Schiraldi, V., B.V. Smith, and J. Ziedenberg,
Pathways to Juvenile Detention Reform: Reducing Racial
Disparities in Juvenile Detention. (Baltimore, MD: Annie E.
Casey Foundation, 2002).
141 Gene Kassebaum, and others, August 2001.
142 Personal Communication with Daniel Gluck, ACLU-Hawai‘i,
February 24, 2010.
143 S
tate of Hawai‘i Department of Human Services, A Statistical
Report on Child Abuse and Neglect in Hawai‘i in 2008 (Honolulu,
HI: Department of Human Services, 2008). www.hawaii.gov/dhs/
protection/social_services/child_welfare/ChildAbuse
144 N
oreen Mokuau, 2005.
145 G
eorge Kanahele, Ku kanaka: Stand tall (Honolulu, HI:
University of Hawai‘i Press and Waiaha Foundation, 1986) cited
in Noreen Mokuau, “Culturally-based solutions to preserve the
health of Native Hawaiians,” in Benjamin Young (ed.) Health and
Hawaiian Culture (Honolulu, HI: University of Hawai‘i Press,
2005).
146 E
walt and Mokuau, 1995.
147 D
avid Risley, Mandatory Minimums (Omaha, NE: Drug
Watch International, May 2000). http://www.drugwatch.org/
Mandatory%20Minimum%20Sentences.htm.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 93

148 Hawai‘i Criminal Justice Data Center, 2008.
149 Hawai‘i. Rev. Stat. § 706-622.5.
150 Hawai‘i: Mandatory sentencing Trumps Drug Care Law, www.
allbusiness.com, Jan. 23, 2004, available at www.allbusiness.
com/legal/laws/96874801.html.
151 Hawai‘i. Rev. Stat. § 706-660.1 (1)-(2).
152 Repealing Delaware’s Mandatory Minimum Drug Sentencing
Laws, Stand Up for What’s Right and Just (2009). http://www.
surj.org/manminstatus.htm
153 Hawai‘i. Stat. Rev. § 706-606.5.
154 Hawai‘i. Stat. Rev. § 706-606.5.
155 Scott Ehlers, Vincent Schiraldi and Jason Ziedenberg, Still
Striking Out: Ten Years of California’s Three Strikes (Washington,
DC: Justice Policy Institute, 2004). http://www.justicepolicy.org/
images/upload/04-03_REP_CAStillStrikingOut_AC.pdf
156 G.S. Bridges and S. Steen “Racial Disparities in Official
Assessments of Juvenile Offenders; Attributional Stereotypes as
Mediating Mechanisms.” American Sociological Review, Volume
63, 1998.
157 Hawai‘i. Rev. Stat. § 571-61.
158 Child Welfare League of America, “Summary of The Adoption
And Safe Families Act of 1997,” August 16, 2010. http://www.
cwla.org/advocacy/asfapl105-89summary.htm
159 Marilyn Brown, Ph.D. and Jedediah Kay, Hawai‘i County’s
Children of Incarcerated Parents: A Needs Assessment of Parents,
Children, and Caregivers (Honolulu, HI: Hawai‘i County
Children of Incarcerated Parents Task Force, 2007).
160 Hawai‘i. Rev. Stat. § 346-19.7.
161 42 U.S.C.A § 1437.
162 Human Rights Watch, No Second Chance: People with Criminal
Records Denied Access to Public Housing (new York, NY: Human
Rights Watch, 2004). www.hrw.org/reports/2004/usa1104/index.
htm.
163 Hawai‘i. Rev. Stat. § 831-3.2.
164 Hawai‘i. Rev. Stat. § 831-3.2.
165 Hawai‘i. Rev. Stat. § 378-3 (13).
166 Lau, supra note 22.
167 Hawai‘i. Rev. Stat. § 831-3.1 (c).
168 Hawai‘i. Rev. Stat. § 831-2(a) (2).
169 Hawai‘i. Rev. Stat. § 706-641(3)(a).
170 Hawai‘i. Rev. Stat. § 706-640.
171 Hawai‘i. Rev. Stat. § 706-641(2).
172 Hawai‘i. Rev. Stat. § 706-642 (2).
173 Hawai‘i. Rev. Stat. §291E-61(a) and Hawai‘i Rev. Stat. §291E61.5.
174 Debbie A. Mukanel & Paul N. Samuels, Statutory Limits on Civil
Rights of People with Criminal Records, 30 Fordham Urb. L. J.
1501, 1508 (2003); 20 U.S.C. § 1901 (r)(1).
175 Debbie A. Mukanel & Paul N. Samuels, Statutory Limits on Civil
Rights of People with Criminal Records, 30 Fordham Urb. L. J.
1501, 1508 (2003); 20 U.S.C. § 1901 (r)(1).
176 Hawai‘i. Rev. Stat. § 831-2.
177 Hawai‘i. Rev. Stat. § 612-4 (4).
178 Duren v. Missouri, 439 U.S. 357, 363-64 (1979).

179 E
qual Justice Initiative, Illegal Racial Discrimination in Jury
Selection: A Continuing Legacy (Montgomery, AL: Equal Justice
Initiative, August 2010). http://eji.org/eji/files/06.25.10%20
Race%20and%20Jury%20Report%202nd%20Ed%20Final.pdf
180 M
oosa-Mitha Mehmoona,“Situating anti-oppressive theories
within critical and difference-centered perspectives,” In L. Brown
and S. Strega (Eds.) Research and Resistance (Toronto, Canada:
Canadian Scholars’ Press, 2005).
181 C
aroline W. Harlow, Education and correctional populations
(Washington, D.C.: Bureau of Justice Statistics, 2003). http://bjs.
ojp.usdoj.gov/content/pub/pdf/ecp.pdf
182 Nicole Stoops Educational attainment in the United States:
2003. (U.S. Census Bureau, 2004) Table A. www.census.gov/
prod/2004pubs/p20-550.pdf
183 West and Sabol, 2009.
184 U
.S. Census Bureau, “Hawai‘i, S0201. Selected Population
Profile, Native Hawaiian alone or in any combination, 2006-2008
American Community Survey,” December 31, 2009.
185 Doris J. James Profile of jail inmates, 2002. (Washington, D.C.:
Bureau of Justice Statistics, 2004). http://bjs.ojp.usdoj.gov/
content/pub/pdf/pji02.pdf
186 Bureau of Labor Statistics, Local Area Unemployment Statistics,
Unemployment Rates for States, Annual Average Ratings, 2002.
http://www.bls.gov/lau/lastrk02.htm
187 Doris J. James, Profile of jail inmates, 2002. (Washington, D.C.:
Bureau of Justice Statistics, 2004). http://bjs.ojp.usdoj.gov/
content/pub/pdf/pji02.pdf
188 Calculated using the mean annual wage of $36,210. Obtained at:
Bureau of Labor Statistics. September 18, 2007. Online at http://
www.bls.gov/oes/2003/may/oes_00Al.htm.
189 Shawn Malia Kana‘iaupuni, Nolan J. Malone, and Koren Ishibashi,
Income and Poverty Among Native Hawaiians (Honolulu,
Hawai‘i: PASE, 2005). http://www.ksbe.edu/spi/PDFS/Reports/
Demography_Well-being/05_06_5.pdf.
190 Kana‘iaupuni, Malone, and Ishibashi, 2005
191 H
arry Messenheimer, Good News: Native Hawaiians Prosper
(Honolulu, HI: Grassroot Institute of Hawai‘i, 2008). www.
grassrootinstitute.org/system/old/Publications/GRIH_
Study_1007.pdf.
192 U
.S. Census Bureau, “Hawai‘i, S0201. Selected Population
Profile, Native Hawaiian alone or in any combination, 2006-2008
American Community Survey,” December 31, 2009.
193 Julie Kaomea, “A Curriculum of Aloha? Colonialism and Tourism
in Hawai‘i’s Elementary Textbooks,” Curriculum Inquiry 30:3
(2000).
194 Chicago Legal Advocacy for Incarcerated Mothers, “Women in
Prison Fact Sheet,” www.claim-il.org/thirdcoast//claim-il.org/
about.html
195 Angela Wolf, Reducing the Incarceration of Women, (Oakland,
CA: National Council on Crime and Delinquency, 2006). www.
nccd-crc.org/nccd/pubs/2006_WIP_special_report.pdf
196 F
ran Tracy-Mumford, Women in Prison: Status Report on
Maryland’s Women in Prison (Annapolis, MD: Maryland
Commission for Women, 2004).

94 | The Disparate Treatment of Native Hawaiians in the Criminal Justice System
197 M
elissa Sickmund, T.J. Sladky and Wei. Kang, „Census of
Juveniles in Residential Placement Databook“ 2008. http://www.
ojjdp.ncjrs.gov/ojstatbb/cjrp/
198 Sickmund, Sladky, and Kang, 2008.
199 Janis Kamimura, Report to the Judiciary, WAM/Finance
Informational Briefing (Honolulu, HI: The Judiciary, January
2009). www.capitol.hawaii.gov/session2009/Testimony/info_
testimony_FIN_01-29-09_JUD.pdf
200 Crime Prevention & Justice Assistance Division Department of
the Attorney General State of Hawai‘i, Incarcerated Juveniles and
Recidivism in Hawai‘i (Honolulu, HI: Attorney General, 2001).
http://hawaii.gov/ag/cpja/main/rs/Folder.2006-02-06.3414/hycf2.
pdf.
201 Lydia Seumanu Fuatagavi and Paul Perrone, Crime in Hawai‘i:
A Review of Uniform Crime Reports (Honolulu, HI: Attorney
General, State of Hawai‘i, 2009). http://hawaii.gov/ag/cpja/main/
rs/Folder.2005-12-05.2910/copy_of_cih2007/Crime%20in%20
Hawaii%202007.pdf
202 John M. MacDonald, “The Effect of Ethnicity on Juvenile Court
Decision Making in Hawai‘i,” Youth Society 35, no. 243 (2003).
203 National Association of State Budget Officers, State Expenditure
Reports, 1999-2008 (Washington, DC: National Association
of State Budget Officers, 1998-2009). www.nasbo.org Note:
Adjusted for inflation
204 National Association of State Budget Officers, 1998-2009). Note:
Adjusted for inflation
205 Pew Center on the States, Public Safety, Public Spending:
Forecasting America’s Prison Population 2007–2011
(Philadelphia, PA: Pew Charitable Trusts, 2009). http://www.
pewcenteronthestates.org/uploadedFiles/Public%20Safety%20
Public%20Spending.pdf
206 Thomas Lengyel, “Everyone Pays: A Social Cost Analysis of
Incarcerating Parents for Drug Offenses in Hawai‘i,” Conference
Paper presented at Unlocking Justice, October 17, 2009, Ching
Conference Center, University of Honolulu.
207 Justice Policy Institute, Factsheet: Percent Change in Incarceration
and Crime Rates, 1998-2007 (Washington, DC: Justice Policy
Institute, 2008). www.justicepolicy.org/images/upload/07-02_
FAC_StatebyStateIncarceration_AC-PS.pdf
208 Don Stemen, Reconsidering Incarceration: New Directions for
Reducing Crime (New York, NY: Vera Institute of Justice, January
2007).
209 All salary information from: Bureau of Labor Statistics,
“Occupational Employment Statistics: May 2007 National
Occupational Employment and Wage Estimates,” September 23,
2008. www.bls.gov/oes/current/oes_nat.htm#b25-0000
210 Pew Center on the States, Public Safety, Public Spending:
Forecasting America’s Prison Population 2007–2011
(Philadelphia, PA: Pew Charitable Trusts, 2009). http://www.
pewcenteronthestates.org/uploadedFiles/Public%20Safety%20
Public%20Spending.pdf
211 College Board, Trends in College Pricing: 2008 (New York:
College Board, 2008). http://professionals.collegeboard.com/
profdownload/trends-in-college-pricing-2008.pdf

212 A
verage cost of treatment, for all types of treatment. Adjusted
for inflation using the cost of treatment in 1997 ($1,849 per
admission) determined in Substance Abuse and Mental Health
Services Administration, ADSS Cost Study: Costs of Substance
Abuse Treatment in the Specialty Sector (Washington, DC:
Department of Health and Human Services, 2003). www.oas.
samhsa.gov/adss/ADSSCostStudy.pdf.
213 The average of estimates of the cost of supportive housing
for nine cities in The Lewin Group. 2004. Costs of serving
homeless individuals in nine cities. Chart book report. New
York: Corporation for Supportive Housing. www.rwjf.org/files/
newsroom/cshLewinPdf.pdf
214 M
okuau, 2005.
215 M
arlyn A. McCubbin, “Typologies of resilient families: Emerging
roles of social class and ethnicity,” Family Relations 37(3), 1988,
247-54.
216 M
okuau, 2005.
217 A. Aukahi Austin, “Alcohol, Tobacco, Other Drug Use, and Violent
Behavior Among Native Hawaiians: Ethnic Pride and Resilience,”
Substance Use and Misuse 39 (5), pp. 721–746, 2004.
218 K
ana‘iaupuni, Malone, and Ishibashi, 2005).
219 N
oreen Mokuau, “A Family-Centered Approach in Native
Hawaiian Culture,” Families in Society: The Journal of
Contemporary Human Services 71 (1990).
220 W. Haywood Burns Institute, The Keeper and the Kept: Reflections
on Local Obstacles to Disparities Reduction in Juvenile Justice
Systems and a Path to Change, 1-22, 13 (2009), http://www.
burnsinstitute.org/article.php?id=161
221 W. Haywood Burns Institute, 2009.
222 This concept is attributed to the Juvenile Detention Alternatives
Initiative (JDAI). Id. at 15.
223 The Annie E. Casey Foundation, Juvenile Detention Alternatives
Initiative
(JDAI),
http://www.aecf.org/MajorInitiatives/
JuvenileDetentionAlternativesInitiative.aspx
224 Interagency Council on Intermediate Sanctions, “Interagency
Council on Intermediate Sanctions website,” June 29, 2010.
http://hawaii.gov/icis
225 C
enter for Children’s Law and Policy, supra note 28.
226 J ustice Policy Institute, Housing and Public Safety (Washington,
D.C.: Justice Policy Institute, 2007).
227 J ustice Policy Institute, 2007.
228 J ustice Policy Institute, 2007.
229 P
atrick Langan and David Levin, Recidivism of Prisoners Released
in 1994 (Washington, DC: Bureau of Justice Statistics, 2002).

THE IMPACT OF THE CRIMINAL JUSTICE SYSTEM ON NATIVE HAWAIIANS

The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 95

The disproportionate impact of the criminal justice system on Native Hawaiians accumulates at each stage.
Native Hawaiians are also more likely to receive a sentence of incarceration over probation.
24%

General Population (2008)

25%

Sentencing related outcomes

Arrest (2008)

33%

Pretrial Detention (2009)
29%

Admissions to Probation (2000-2009)
Admissions to Incarceration (2009)

36%

Incarcerated (June 30, 2008)

39%

Releases on Parole (2009)

39%

Parole Revocations (2005-2009)

41%
0%

Sources: Hawai‘i State
Department of Health, Ofﬁce
of Health Status Monitoring,
special tabulation from
the Hawai‘i Health Survey,
January 22, 2010. http://
hawaii.gov/dbedt/info/
economic/databook/2008individual/01/;
Hawai‘i
Criminal Justice Data Center;
Ofﬁce of Hawaiian Affairs,
“Databook 2006: Public
Safety,” March 2006. www.
oha.org/pdf/databook/2006/
DataBook2006PublicSafety.
pdf.; Hawai‘i Department
of Public Safety, 2008
Annual Report (Honolulu,
HI: Department of Public
Safety, 2008). http://hawaii.
gov/psd/administration/
publications/annual-reports/
department-of-public-safety/
PSD-AnnualReport2008.pdf

10%

20%

Native Hawaiians as a percent of total

he disparate impact of the criminal justice system on Native Hawaiians is
apparent at every stage of the criminal justice system, starting from arrest
and continuing through parole. The impact is cumulative, starting with a
relatively small disproportionality at arrest, but revealing itself to be more distinct
at sentencing and incarceration. Disproportionate representation at entry into
the system is exacerbated by pretrial detention, which has been found to relate
to an increased likelihood of incarceration; subsequently, time spent away from
community and family while in prison can make transition back to the community
difﬁcult, potentially increasing the likelihood of returning to prison. The cycle repeats
itself and notably, negative cyclical effects are concentrated on Native Hawaiian
communities.
Given a determination of guilt, Native Hawaiians are more likely to get a prison
sentence than all other groups
An analysis of data from the Hawai‘i Criminal Justice Data Center, controlling for
age, gender, and type of charge, found that for any given determination of guilt,
Native Hawaiians are much more likely to get a prison sentence than almost all
other groups, except for Native Americans. Importantly, the other major group of
defendants after Native Hawaiians, Whites, are only about 67 percent, or twothirds, as likely as Native Hawaiians to be incarcerated if judged guilty.1
Native Hawaiians receive longer prison sentences than most other racial or
ethnic groups.
Controlling for severity of charge, age at arrest and gender of the person charged, Native
Hawaiians are sentenced to 119 days more in prison than Tongans, 73 more days than
Native Americans, 68 days more than Hispanics, and 11 days more than Whites.
Native Hawaiians are sentenced to longer probation terms than most other racial
or ethnic groups.
A multivariate analysis controlling for severity of the charge, age, gender and
race shows that Native Hawaiians also serve more time on probation than other
racial and ethnic groups, except for Hispanics. On average, a Japanese person is
sentenced to 14 fewer days of probation than a Native Hawaiian person, and Whites
are sentenced to nearly 21 fewer days of probation than Native Hawaiians.2

30%

40%

50%

Note: Admissions to
incarceration or probation
are the result of sentencing.

Native Hawaiians make up the highest percentage of people incarcerated in
out-of-state facilities.
In 2005, of the 6,092 people who were under the custody of the Public Safety
Department, which includes people in jails, 29 percent (1,780) were in facilities
operated by other states or private companies on behalf of states. Of the people in
out-of-state facilities, 41 percent are Native Hawaiians.3
Hawai‘i has the largest proportion of its population of women in prison,4 with Native
Hawaiian women comprising a disproportionate number of women in the prison.
While Native Hawaiian men and women are both disproportionately represented
in Hawai‘i’s criminal justice system, the disparity is greater for women. Forty-four
percent of the women incarcerated under the jurisdiction of the state of Hawai‘i are
Native Hawaiian. Comparatively, 19.8 percent of the general population of women
in Hawai‘i identify as Native Hawaiian or part Native Hawaiian.5
Parole revocations contribute to the number of Native Hawaiians in prison in Hawai‘i.
Although Hawai‘i released 644 people from prison to parole in 2009, 249 people
were also returned to prison by revoking parole. Native Hawaiians had one of the
lowest ratios of release to revocations. For every ﬁve Native Hawaiians released, two
Native Hawaiians had their parole revoked (2.5:1 ratio). Japanese people have a
slightly lower ratio (2.4:1) and Chinese people having the highest, with eight people
being released for every one person returning to prison on a parole revocation.6

1 Hawai‘i Criminal Justice Data Center, 2000-2008.
2 Hawai‘i Criminal Justice Data Center, 2000-2008.
3 Ofﬁce of Hawaiian Affairs, “Databook 2006: Public Safety,” March 2006. www.oha.org/
pdf/databook/2006/DataBook2006PublicSafety.pdf.
4 Heather C. West, William J. Sabol, and Matthew Cooper, Prisoners in 2008 (Washington,
DC: Bureau of Justice Statistics, December 2009).
5 U.S. Census Bureau, “Hawai‘i, S0201. Selected Population Proﬁle, Native Hawaiian alone
or in any combination, 2006-2008 American Community Survey,” December 31, 2009.
6 Hawai‘i Criminal Justice Data Center, 2009.

FACT SHEET | The Disparate Treatment of Native Hawaiians in the Criminal Justice System
For more information visit oha.org

PUNITIVE RESPONSES TO DRUG USE AND NATIVE HAWAIIANS

he issue of substance use and abuse is important for the Native Hawaiian
community because of its correlation to cultural trauma (the result of a
history of systematic marginalization by some dominant group). Research
indicates that one symptom of cultural trauma is substance use and abuse.1
Native Hawaiians also report personal trauma more than other racial or ethnic
groups in Hawai‘i,2 which can also contribute to self-medication through
substance use.
Native Hawaiians bear a disproportionate burden of the punitive response to drug use.
Hawai‘i’s criminal justice approach to drug use was a signiﬁcant contributor
to the total number of people admitted to prison or jail in 2009 (762 or about
13 percent), but has even greater signiﬁcance for Native Hawaiians. As seen in
the pie chart, Native Hawaiians made up the largest portion (32 percent) of the
people admitted to prison for drug offenses in 2009.3
page-45

Native Hawaiians made up the largest portion of people
who are admitted to prison for drug offenses in 2009.

(11)

Native Hawaiian

24%
(182)

32%
(246)

White
Japanese
filipino

14%

Chinese

(107)

6%
(48)

22%

Other

(168)

Source: Hawai‘i Criminal Justice Data Center, 2009

This concentrated impact of incarceration for Native Hawaiians is most evident
when considering that approximately 80,000 people in Hawai‘i over the age of
12 reported using illicit drugs in the previous month. Compared to numbers of
people that report using drugs, a relatively small number are arrested and then
sent to prison or jail; about 2,000 were arrested for drug offenses in 2009 and 726
were admitted to prison are or jail, 32 percent of whom were Native Hawaiian.4
Native Hawaiians do not use drugs at drastically different rates from other races
or ethnicities, but go to prison for drug offenses more often than people of other
races or ethnicities.
According to the 2004 Hawai‘i State Treatment Needs Assessment Program
dataset, Native Hawaiians do not use drugs at widely dissimilar rates to other
races or ethnicities, although there is some variation. Irrespective of the variation
in drug use rates, the percent of Native Hawaiians that report drug use does not
match the proportion of the total number of people admitted to prison or jail for
drug offenses.
Native Hawaiians are charged with the majority of offenses related to
methamphetamine, but report using this drug at only slightly higher rates than
people of other races or ethnicities.
The use of methamphetamine in Hawai‘i, particularly by Native Hawaiians, is a
growing concern. Methamphetamine accounts for the most charges of all drug
offenses. Although Native Hawaiians do report lifetime use and current use of
methamphetamine at slightly higher rates than other groups, Native Hawaiians
are still charged with the majority of offenses related to methamphetamine, by

a wide margin. Data from the Hawai‘i Criminal Justice Data Center shows that
Native Hawaiians make up between 16 and 38 percent of charges for all categories
of drugs, but account for the largest proportion of charges for methamphetamine
(38 percent).
Policing, sentencing structures and the availability of treatment contribute to
disproportionality.
The reasons for the disproportionate impact of the criminal justice system on
Native Hawaiians related to drug offenses are varied, but include a variety of
social factors unique to indigenous people, as well as the way the criminal justice
system works to react toward drug use and abuse.
• Drug arrests are often considered to be the result of proactive policing, as
drug offenses are not generally reported to the police.5 Thus, police may
have more discretion concerning whom they arrest for drug offenses than for
property or violent offenses, for example. One study out of New York City found
that police would return to the same neighborhoods, often neighborhoods of
color, to make marijuana arrests.6
• Hawai‘i has a mandatory sentence for possession/sale/trafﬁcking of
methamphetamines of at least 10 years.7 Because Native Hawaiians make
up the largest proportion of people charged with methamphetamine-related
offenses,8 they are more likely to receive one of these mandatory sentences, which
will extend the term they spend in prison compared to other drug offenses.
• Differences in the availability of drug treatment for some groups of people
compared to others can be an important factor in the disparate impact of
the criminal justice system on communities. Native Hawaiian admissions
to treatment do vary widely across data sets and geographic regions. The
Hawaiian Department of Health reports that in 2006, Native Hawaiians
represented between 29 percent of treatment admissions to 91 percent
depending on geographic region.9
A public health response to drug use, rather than a criminal justice response
would improve life outcomes, support communities and save Hawai‘i money.
A shift to treatment outside the criminal justice system would succeed in reducing
the number of people going to prison or jail for drug use, reduce the number of
Native Hawaiians entering the system for drug offenses, promote public safety
and save Hawai‘i money that could be reallocated to other social institutions. For
example, a Washington State Institute for Public Policy study found that spending
one dollar on drug treatment in prison yields nearly six dollars in beneﬁts in terms
of increased public safety and monetary beneﬁts. In contrast, an investment
of one dollar in community-based drug treatment yields over $18 in beneﬁts.
Funding programs in the community yields a higher return on the investment.10

1 Aboriginal Healing Foundation, Historic Trauma and Aboriginal Healing (Ottowa, Ontario: Aboriginal Healing Foundation, 2004). cited in
Kai Duponte and others, ‘Ike Hawai‘i: A Training Program for Working with Native Hawaiians (Honolulu, HI: University of Hawai`i, 2009).
2 State of Hawai‘i Department of Human Services, A Statistical Report on Child Abuse and Neglect in Hawai‘i in 2008 (Honolulu, HI:
Department of Human Services, 2008). www.hawaii.gov/dhs/protection/social_services/child_welfare/ChildAbuse
3 Hawai‘i Criminal Justice Data Center, 2009
4 Substance Abuse and Mental Health Services Administration, “Appendix C: Tables of Change between the 2005-2006 and the 2006-2007
Model-Based Estimates (50 States and the District of Columbia), by Measure,” February 11, 2010. www.oas.samhsa.gov/2k7State/AppC.
htm#TabC-1. ; Federal Bureau of Investigation, “Uniform Crime Report,” Crime in the United States, Table 69 Arrests by State, www.fbi.
gov/ucr/ucr.htm; Hawai‘i Criminal Justice Data Center, 2008.
5 Philip Beatty, Amanda Petteruti, and Jason Ziedenberg, The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the
Characteristics of Punitive Counties (Washington, DC: Justice Policy Institute, 2007).
6 Harry G. Levine and Deborah Peterson Small, Marijuana Arrest Crusade: Racial Bias and Police Policy in New York City 1997-2007 (New
York, NY: New York Civil Liberties Union, 2008). www.nyclu.org/ﬁles/MARIJUANA-ARREST-CRUSADE_Final.pdf
7 Haw. Rev. Stat. § 712-1240.7 (2009) & Haw. Rev. Stat. § 712-1240.8 (2009)
8 Hawai‘i Criminal Justice Data Center, 2009
9 Department of Health, Fiscal year 2006 admissions to treatment, Personal communication.
10 Steve Aos, Marna Miller, and Elizabeth Drake, Evidence-Based Public Policy Options to Reduce Future Prison Construction, Criminal
Justice Costs, and Crime Rates (Olympia, WA: Washington State Institute for Public Policy, 2006). www.wsipp.wa.gov.

FACT SHEET | The Disparate Treatment of Native Hawaiians in the Criminal Justice System
For more information visit oha.org

WHAT ARE THE FACTORS THAT CONTRIBUTE TO DISPARATE TREATMENT IN THE CRIMINAL JUSTICE SYSTEM?
The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 97

n many respects, racial disparities among Hawai‘i’s prison population are
the products of actions that occur at different stages in the justice system,
beginning with the decision to make the initial arrest. Research suggests that
the effects of race may be direct or indirect and may accumulate as an individual
continues through the system itself.1
The experiences of Native Hawaiians, correctional ofﬁcers, treatment providers
and advocates explain the processes that result in a disproportionate
representation of Native Hawaiians in the criminal justice system. Differences in
the way that Native Hawaiians experience the system are often the result of the
way the criminal justice system operates, but other experiences seem to be the
result of a long history of stereotypes and cultural and personal trauma.
This factsheet includes a general overview of the potential factors that contribute
to the disparate treatment to Native Hawaiians. When there are speciﬁc examples
from Hawai‘i or related to Native Hawaiians, they are included.

DISPARATE TREATMENT BEFORE THE COURTS: Although there is no speciﬁc
study of the court system in Hawai‘i and the effect it might have on sentencing,
national studies have found that appearing before the court with private counsel
is associated with a lower likelihood of conviction than using a court-appointed
public defender.2 Youth of color are more likely to rely on the indigent defense
system, which often includes public defenders that are overburdened and underresourced with higher caseloads than private attorneys. Nationally, white youth
are twice as likely as African American youth to retain private counsel.3
DISCRETIONARY PAROLING PRACTICES: GOOD TIME DOES NOT EQUAL
LESS TIME: The discretionary nature of minimum sentence setting and release

determinations outside the court are concerning for formerly incarcerated Native
Hawaiians. The real determination of sentence appears to be not set by a judge,
but by the Hawai‘i Paroling Authority, which people that come into contact with
the system see as using arbitrary criteria.

Given the cumulative impact of the criminal justice system on Native Hawaiians
and the evidence that Native Hawaiians cycle through the system more than
people of other racial and ethnic groups, sentence-setting and discretionary
parole based on offense history will likely contribute to the disproportionate
number of Native Hawaiians in the prison system in Hawai‘i.

INTERACTIONS WITH CORRECTIONAL STAFF: BAD TIME EQUALS MORE TIME:

Interactions between people in prison and guards can contribute to the amount
of time that a person ultimately spends in prison. Infractions within the prison
walls, sometimes subjectively determined by correctional ofﬁcers and not
always serious in nature, can lead to changes in custody that will then impact
the chances that a person can participate in certain programs or services that
make a person eligible for release. Some correctional ofﬁcers view their position
of power as one that does not require interpersonal problem-solving, which could
contribute to perceptions about behaviors.

TRAUMA OF INCARCERATION: Incarceration is traumatic for all people. It
devastates families, destabilizes communities and cuts people off from jobs and
education that improve life outcomes and help keep people out of prison once they
are released. Incarceration also re-traumatizes people that have already experienced
trauma in their lives. For Native Hawaiians, the impact of trauma is particularly
salient because of strong connections to family, the land and community.

Imprisoning people from Hawai‘i on the continent seems to be the most
damaging to Native Hawaiians. It contributes to the growing prison population
and exacerbates the disproportionate impact of the system on Native Hawaiians
because they are cut off from supportive communities and families that give
them a reason to exit prison as soon as possible. Even the absence of familiar
surroundings and changes in weather is traumatizing.

LACK OF PROGRAMS AND SERVICES IN PRISON TO PREPARE A PERSON
FOR RETURNING TO THEIR COMMUNITY: Often, people in prison are required

to participate in speciﬁc programs and services in order to be eligible for release.
Without the completion of those programs, a person can be denied parole.
However, programs and services frequently ﬁll up, leaving no available spots
for everyone who needs to participate. Not only are people in prison prevented
from earning the earliest release possible, they could also potentially get to the
end of their sentence and be released without the services that might facilitate
reentry and prevent return to prison. Complicating a successful re-entry process
is that some people are returning from prison after serving their time on the
continental United States because they are placed directly into the community
without adequate resources to sustain themselves.

CULTURALLY INAPPROPRIATE OR UNAVAILABLE REENTRY SERVICES:

Research shows that culturally relevant and appropriate interventions and
services are the most effective for helping Native Hawaiians participate fully in
the community.4 For example, traditional social work modalities typically rely on
self-determination, which is individualistic and is Northern European or North
American in orientation. Paciﬁc cultures, including Native Hawaiians, tend to
see themselves as part of a collective group or community.5 In order to effectively
provide services for reentry or some other wellness promotion initiative, a
provider must be aware of the totality of community context, interdependence,
and, also, the role that oppression by other groups has played.6 The application of
Western values to a culture that does not share them makes it difﬁcult to ensure
successful implementation of initiatives or services.

MANDATORY SENTENCES AND SENTENCING ENHANCEMENTS: In Hawai‘i,
methamphetamine is the only drug that carries a mandatory sentence. According
to data from the Hawai‘i Criminal Justice Data Center, Native Hawaiians are more
likely than any other racial or ethnic group to be charged with a methamphetaminerelated offense,7 contributing to the disproportionate representation of Native
Hawaiians in the prison system.

1 Carl E. Pope and William Feyerherm. Minorities and the Juvenile Justice System: Research Summary
(Washington, DC: Ofﬁce of Juvenile Justice and Delinquency Probation, U.S. Department of Justice, 1995).
2 Patti Puritz, A Call for Justice: An Assessment of Access to Counsel and Quality of Representation in
Delinquency Proceedings (Washington, DC: National Juvenile Defender Center, 1995).
3 E. H. Hoytt, V. Schiraldi, V., B.V. Smith, and J. Ziedenberg, Pathways to Juvenile Detention Reform:
Reducing Racial Disparities in Juvenile Detention. (Baltimore, MD: Annie E. Casey Foundation, 2002).
4 Noreen Mokuau, “Culturally-based solutions to preserve the health of Native Hawaiians,” in Benjamin
Young (ed.) Health and Hawaiian Culture (Honolulu, HI: University of Hawai‘i Press, 2005).
5 George Kanahele Ku kanaka: Stand tall (Honolulu, HI: University of Hawai‘i Press and Waiaha
Foundation, 1986) cited in Noreen Mokuau, “Culturally-based solutions to preserve the health of
Native Hawaiians,” in Benjamin Young (ed.) Health and Hawaiian Culture (Honolulu, HI: University
of Hawai‘i Press, 2005).
6 Patricia L. Ewalt and Noreen Mokuau, “Self-Determination from a Paciﬁc Perspective,” Social Work
4, 1995.
7 Hawai‘i Criminal Justice Data Center, 2008.

FACT SHEET | The Disparate Treatment of Native Hawaiians in the Criminal Justice System
For more information visit oha.org

COLLATERAL CONSEQUENCES, CRIMINAL JUSTICE INVOLVEMENT AND NATIVE HAWAIIANS

mprisonment and conviction carries with it a set of collateral
consequences that extend well beyond the sentence imposed by the
court. Many Hawaiians coming out of the criminal justice system
are denied the opportunity to ﬁnish school; they lose or cannot obtain a
driver’s license; they are deprived of the right to vote; they cannot ﬁnd
stable employment; and they are simply unable to support their families.
These collateral consequences push the limits of “punishment to ﬁt the
crime” and effectively deprive a person convicted of an offense of any
second chance at effectively living in, and contributing to, a community.
The consequences of criminal justice involvement include the following:
BREAKING UP THE FAMILY - Not only are Hawaiians separated from their
families during incarceration, but many will be permanently separated.
Hawai‘i state law allows family courts to terminate parental rights when
a child has been removed from a parent.1 Incarcerated parents who lose
their children may never get them back and for many women in Hawaiian
prisons, this is a common occurrence. In addition, persons with a criminal
history are barred from becoming foster or adoptive parents, and simply
living with, or being married to, a person convicted of a crime limits the
individual family rights.2
LOSS OF THE FAMILY HOME - The Housing Opportunity Program Extension
Act of 1996 imposed a mandatory three-year ban from public housing
on anyone who was evicted due to drug-related illegal activity.3 Although
successful completion or compliance with a rehabilitation program can
reinstate eligibility, the Act grants state public housing authorities broad
discretion to make their own standards about who qualiﬁes for public
housing. Housing is the foundation for maintaining all other aspects of
successful participation in society. Laws that regulate where a person,
and ultimately his or her family, lives can have severe negative effects on
individuals and on communities.
LIMITED EMPLOYMENT AND VOCATIONAL OPPORTUNITIES - While Hawai‘i
has laws designed to prevent discrimination in the hiring of people
convicted of offenses there is little done to enforce the laws and protect
those who have been released from prison to the community. Despite these
laws, employers frequently screen applicants based on criminal history,
through legal or illegal means and discriminate, citing other reasons not
to hire.4 In addition, the State may refuse or revoke any license to practice
some type of employment, permit, registration or certiﬁcate of a person
convicted of a felony if the conviction is directly related to the trade for
which the license is held.5
EXCESSIVE FINES - The inability of a person with a criminal record to ﬁnd
employment is often compounded by large ﬁnes imposed by the criminal
court. Theoretically, the courts are strictly bound not to issue ﬁnes if the
person cannot pay; however, the statutory language does not provide the
court with criteria to assess their ﬁnancial ability, so the matter is largely
in the court’s discretion.6

LOSS OF DRIVER’S LICENSE - A person convicted of a drug offense
(which includes alcohol) will lose his or her licenses for a minimum of
six months and up to three years, depending on the number of previous
offenses and level of intoxication.7 This loss often has tremendous ripple
effect for individuals and families– including the ability to get to and
from work, to search for employment or housing, visit relatives, obtain
child care and to keep appointments with parole or probation ofﬁcers as a
term of community supervision. The loss of a driver’s license is even more
problematic on islands or in jurisdictions with no public transportation.
DIMINISHED EDUCATIONAL OPPORTUNITIES - Arguably one of the most
effective means of reintegrating into society and building a productive
future after incarceration is through education – especially postsecondary education. However, federal law disqualiﬁes students convicted
of drug-related offenses from receiving ﬁnancial aid.8 The waiting time to
become re-eligible ranges from one year to life, depending on the number
of previous offenses.9
EXCLUSION FROM CIVIC AND POLITICAL PARTICIPATION - In many
states, people convicted of certain offenses are denied civic participation,
including the right to vote or sit on a jury. Voting and jury service are
the primary ways that most citizens participate in the political process.
Voting, in particular, allows people of Hawai‘i to have a say in shaping
the policies that affect their lives. People convicted of felonies in Hawai‘i
are not permitted to vote until their sentence is discharged.10 Although
the right to vote is automatically restored once a person is released from
prison, the correction agencies’ system of data sharing does not always
submit a person’s re-eligibility to his or her county, so a released individual
may have difﬁculty exercising the right to vote. Since Native Hawaiians
are disproportionately more likely to receive a criminal conviction, they are
more likely to have their voting rights taken away, leaving a large section
of some communities disenfranchised and unable to help make decisions
to change and better their own communities.

1 Hawai‘i. Rev. Stat. § 571-61.
2 Hawai‘i. Rev. Stat. § 346-19.7.
3 42 U.S.C.A § 1437.
4 Lau, supra note 22.
5 Hawai‘i. Rev. Stat. § 831-3.1 (c).
6 Hawai‘i. Rev. Stat. § 706-641(3)(a).
7 Hawai‘i. Rev. Stat. § 291E-41(b)(6).
8 Debbie A. Mukanel & Paul N. Samuels, Statutory Limits on Civil Rights of People with
Criminal Records, 30 Fordham Urb. L. J. 1501, 1508 (2003); 20 U.S.C. § 1901 (r)(1).
9 Debbie A. Mukanel & Paul N. Samuels, 2003; 20 U.S.C. § 1901 (r)(1).
10 Hawai‘i. Rev. Stat. § 831-2.

FACT SHEET | The Disparate Treatment of Native Hawaiians in the Criminal Justice System
For more information visit oha.org

NATIVE HAWAIIAN RESILIENCY, CULTURAL STRENGTHS AND REDUCING INCARCERATION
The Disparate Treatment of Native Hawaiians in the Criminal Justice System | 99

hen considering recommendations for reducing the impact of the
criminal justice system on Native Hawaiians, it is necessary and
most effective to access the protective nature and strength of
Native Hawaiian culture for Native Hawaiians. This is important because
a one-size-ﬁts-all approach to reducing racial disparities is not likely
to work, and research shows that Native Hawaiian cultural values and
traditions are supportive and healing and promote resiliency for Native
Hawaiian people.1 In addition, the participation of Native Hawaiians in
the development of recommendations is critical to their success. This
factsheet includes the experiences and perspectives of Native Hawaiians
who participated in the project.
Resilience, generally, refers to the ability of people to cope, recover,
and even, transcend psychosocial, physical and spiritual challenges.
Cultural resilience refers to the capacity of a cultural group to maintain
and develop values, knowledge and skills crucial to proactively engaging
challenges associated with cultural, historic and other types of trauma.2
Resiliency is a central feature of not only ensuring that Native Hawaiians
do not come into contact with the criminal justice system, but that if they
do, that they are able to leave the system and never return.
Native Hawaiian cultural practices have a healing, restorative quality for
Native Hawaiians, generally, but particular, supportive, strengthening
facets include:
HONORING THE SACRED, FORGIVENESS AND SUCCESSFUL ENTRY BACK:
Making Native Hawaiian culture central to the reentry process is important
to Native Hawaiians coming out of prison. Building on cultural pride and
positive identity construction could help Native Hawaiians return to
communities. Research by A. Aukahi Austin regarding ethnic pride and
resiliency as related to substance use and violent behavior shows that
ethnic pride serves as a protective or even preventative factor against
violence and encourages resiliency after a violent experience.3
People participating in this project explain that the principle of the
pu‘uhonua, a city of refuge or sanctuary, could be applied to the criminal
justice system. When a person emerges from the system, they are forgiven
and they can return to the community without the continued burden of the
criminal justice system. This idea is particularly important as it pertains
to the restrictions placed on formerly incarcerated people regarding jobs,
education and housing.
KULEANA (RESPONSIBILITY WITHIN THE CONTEXT OF THE COLLECTIVE):
Kuleana, or responsibility to the greater good, is another cultural
strength that is central to the process of helping Native Hawaiians either
stay out of the criminal justice system or return to communities after
prison. According to survey research from Kamehameha Schools and a
Hawai‘i Community Survey, Native Hawaiians have strong ties to their
communities and are involved in community service. Fifty-one percent
of Native Hawaiians participate in community organizations, with 48.7

percent taking leadership roles when they are involved in the community.4
Participants in this project conﬁrmed the importance of kuleana, as well.
PILI, CLOSE RELATIONS AND FEEDING WITH LEARNING: Native Hawaiian
culture draws strength from community and family building, as well
as communication. For example, the process of ho‘oponopono, which is
a ritualized process of “setting to right; to make right; to restore and
maintain good relationships among family and family-and-supernatural
powers,” was once practiced daily. Ho‘oponopono involved prayer with
family and a discussion of problems and resolutions. The values associated
with ho‘oponopono are love and affection (aloha); unity, agreement and
harmony (lökahi); and family and community (‘ohana).5 It is a sacred,
culturally valuable process that draws on family and community for
support and healing.
Some of the participants in this project recommend courses that teach
language and history to convey culture prior to leaving prison. Learning
in prison, especially if it is done as a partnership, could help people
transition and move forward after prison.

When you talk ‘culture’, you have to look at
people and understand how they live so you can
administer your mana‘o [concern, thoughts] to
them. You want to teach them. Feed them so they
no choke, so that they are able to inu [drink] from
what you teach and digest it. So, that they can
stand up and be proud. No hold down their head
and be willing to build a foundation that is pa‘a
[ﬁrm, solid] and pono [moral, right]. So that no
matter what kine come, they not going fall down
again, because they have that foundation.
(Treatment Provider)

1 Noreen Mokuau, “Culturally-Based Solutions to Preserve the Health of Native Hawaiians, in B.
Young (ed.) Health and Hawaiian Culture (Honolulu, HI: University of Hawai‘i Press, 2005)
2 Marlyn A. McCubbin, “Typologies of resilient families: Emerging roles of social class and
ethnicity,” Family Relations 37(3), 1988, 247-54
3 A. Aukahi Austin, “Alcohol, Tobacco, Other Drug Use, and Violent Behavior Among Native
Hawaiians: Ethnic Pride and Resilience,” Substance Use and Misuse 39 (5), pp. 721–
746, 2004
4 S.K. Kana‘iaupuni, N. Malone, and K. Ishibashi, Ka huaka‘i: 2005 Native Hawaiian Educational
Assessment (Honolulu, HI: Kamehameha Schools, Pauahi Publications, 2005).
5 Noreen Mokuau, “A Family-Centered Approach in Native Hawaiian Culture,” Families in
Society: The Journal of Contemporary Human Services 71 (1990)

FACT SHEET | The Disparate Treatment of Native Hawaiians in the Criminal Justice System
For more information visit oha.org

Empowering Hawaiians, Strengthening Hawai‘i | oha.org
The Office of Hawaiian Affairs (OHA)
is a unique, independent state agency
established through the Hawai‘i State
Constitution and statutes to advocate for
the betterment of conditions of all Native
Hawaiians, with a Board of Trustees
elected by the voters of Hawai‘i. OHA is
guided by a vision and mission to ensure
the perpetuation of the culture, protect
the entitlements of Native Hawaiians, and
build a strong and healthy Hawaiian people
and nation.
The full report of this summary is
available at www.oha.org.
711 Kapi‘olani Blvd., Ste. 500
Honolulu, HI 96813
Tel: 808.594.1888
Fax: 808.594.1865
www.oha.org

Pü‘ali kalo i ka wai ‘ole
Taro grows misshapen with the lack of water

Without proper care and attention one may become ill and deformed

Empowering Hawaiians, Strengthening Hawai‘i | oha.org

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