Ever since President Nixon declared a war on drugs, the number of people put in jail or prison in this country has gone up exponentially.

Fifty years and eight presidents later, the United States keeps more people in prison than any other country on the planet.

About 2 million people — the overwhelming majority of whom are people of color or in poverty — live in prison or jail. (These numbers do not count the people we keep in immigration detention centers, but that’s another terrible story for another time.) This system is what we now call mass incarceration.

By now, there is a consensus among activists and scholars that mass incarceration hurts communities, especially working class, Black and brown communities. It is expensive too. Three years ago, it was estimated that the state spent $238 a day for every person it held in custody.

So while prison is a sentencing option, most judges don’t order it. Judges often will opt for a less severe sentence. Probation is an alternative to imprisonment and is by and large better for defendants for one very important reason: they stay out of jail.

In Hawaii, probation is ordered at sentencing for a period of years. For most felony offenses, it’s four years. Misdemeanors are one to two. During that time, the probationer has a set of conditions that they must follow. These conditions require them to check in with a probation officer, find a job or go to school, pay off fines or restitution and not get convicted of a new criminal offense.

And while it sounds like a relatively easy thing to do for a short period of time, it can get challenging. If a probation officer determines that someone violates a condition of probation, the defendant winds up back in court and often in jail because the court issues a warrant. If they have violated a condition, the judge resentences them all over again. If they put them back on probation the clock starts all over again.

Against that backdrop, the Pew Research Center announced that when it comes to keeping people on probation the longest — including revocations and resentencing — Hawaii comes in on top. On average, probationers in Hawaii are under supervision for nearly five years. The national average is just under two years, according to Pew.

On average, probationers in Hawaii are under supervision nearly five years. The national average is just under two years.

Keeping people on probation too long doesn’t seem to help either. A few years back, the Pew Research Center released a study showing that in 2018 there were 3.5 million people in the United States on probation.

It noted that other studies were indicating that long probation terms do not necessarily result in less crime. It even pointed out that the revocation process of locking up probationers for things like missing appointments or even testing positive for drug use (as opposed to committing a new crime) were so pervasive that 1 in 10 state prison admissions resulted from these technical violations and contributed to mass incarceration.

Hawaii Has Deferred An Opportunity

It is estimated that more than 17,000 people in the state are on probation, according to the nonprofit Prison Policy Initiative. That means that 17,000 people are required to report to a probation officer, are monitored and supervised, and in many cases are subjected to random drug testing. Probation officers are overworked with supervising all these people.

Pew updated its study in 2021 and noted that at least 20 states have taken the initiative to improve the quality of their supervision process, which has been shown to have an impact on rates of recidivism.

Hawaii isn’t one of them.

Last week, Hawaii would have joined those states with House Bill 1626 which would have automatically cut probation time for probationers that were following the rules and abiding by the conditions of probation.

But, testimony from state probation administrators said that while the Judiciary was supportive of the intent of the bill it opposed it in its current form. They testified there were already viable mechanisms in place for probationers to seek early termination of their probation. The Judiciary instead suggested reviewing the terms of probation in all instances at the halfway mark.

The House Committee deferred HB 1626 and gave the Judiciary more time to study the problem and work with stakeholders, but no further action is imminent.

Indeed, defense attorneys can file motions to terminate probation early, but that is on probationers getting a lawyer to do that and going back to court. It is not automatic and still lies within the discretion of the sentencing judge.

Fewer than 1,000 were terminated early in fiscal year 2022-2023.

This process is not new in Hawaii. It is eerily reminiscent of a much older and reviled piece of legislation in our history. In 1850, during the Hawaiian Kingdom, the legislature passed the Masters and Servants Act. That law remained in effect for 50 years.

In those days, when a plantation worker refused to work, their employer would go to court and enforce the contract. If they ran or violated a term of the contract, the law of the kingdom empowered the court to find a violation and extend the term of the contract with the sugar company or plantation. If the worker still refused to comply, the court could imprison them. For me, it sounded an awful lot like probation revocation proceedings.

And this is how we find ourselves with mass incarceration’s more prevalent and pervasive twin: mass supervision.