Tuesday, December 8, 2015

Can you Criminalize the Right to Refuse a Breath Test?

Driving under the influence is a crime in every State of the union. And for good reason. Drunk driving can lead to horrifying car accidents, injuries, and death. Thousands of people are killed each year because of drunk driving.
The earliest effort to curb drunk driving in the islands started in 1949, when the territorial legislature outlawed driving under the influence. The DUI statute has been amended several times since.
Another aspect of drunk driving prosecution that has come a really long way is the way the police detect alcohol. Alcohol is detected through machines regulated by the Department of Health and kept in most police stations. The machine takes the air within your lungs and determines just how much alcohol is in your blood stream.
          For decades in Hawaii, that’s how it’s been: a person gets arrested under suspicion of drunk driving and is taken to the police station. Once there, the driver has the choice of a breath test or a blood test for alcohol detection.
          Can a driver refuse? Sure. Refuse all you want, but if you do, you would still be subjected to losing your license and you can still get charged with being under the influence.
          But in 2010 the Legislature passed a new law making it a crime to say no. Refusing to take a test was a petty misdemeanor meaning you could go to jail and be fined for refusing to take a test. Folks working in criminal justice felt that a challenge was on its way.
          Sure enough, a year after the new law passed, Yong Shik Won got pulled over late one night in Honolulu for speeding. He was ultimately arrested for drunk driving and cops took him to the station. There, they had him choose between a breath test, blood test, both, or no test at all. He opted for the breath test and the results were more than twice the legal limit.
          When he got to court, Won argued that the breath test results were obtained in violation of his constitutional right to be free from searches and seizures of his person and that the police needed a warrant. The trial court denied it and he took it up to the Hawaii Supreme Court.
          The high court’s decision came out the day before Thanksgiving and has impacted courts all over the State. The Fourth Amendment protects people from governmental intrusions into the home, person, and other private spaces. It is one of the big protections enshrined in our federal and later our State constitution.
The Court examined the nature of the breath test. The test requires the production of deep lung breath and so the Court considered it a “search” into a person’s body. In doing so, this implicated the constitutional protections a person has over his or her body.
Relying on older Hawaii cases, the Court stated that “the integrity of one’s person—including the right to be free of arbitrary probing by government officials is at least as significant in terms of human dignity as the right to be free from externally imposed confinement.”
And so the Court held that because the breath test is a “search,” there must be a warrant to search one’s lungs before it can be done. Unless, of course, the driver consented to the search.
That’s exactly what the government argued to the Court: Won consented when he chose the breath test. After all, he could have refused. The Court disagreed. The form signed by Won stated that if he did not consent, he would be subject to the crime of refusing to take a test, which could lead to jail for up to 30 days or a $1,000 fine. This, according to the Court, is a form of coercion and Won’s consent was not reliable. Won won his case.
The case has had ripple effects throughout the islands. Police forces are exploring their options at this point. One thing is clear: they are not backing down from DUI enforcement; they may have to just get warrants for every case. You should still expect highly-trained and vigilant officers on the lookout for drunk driving. Arrests will still be made and prosecutors will seek convictions for those arrests.
Most folks agree that the constitutional right to be free from government intrusion into their bodies is a good thing. At the same time, drunk driving needs to stop. Truth is, the two are not mutually exclusive. You can be a proponent of bodily integrity and support efforts to protect the public. Maintaining that balance is hard to do, but that is one of the hallmarks of a police force working within the framework of a constitutional democracy. And just about everyone is in favor of that.

Friday, November 6, 2015

Mayor or Manager?

Who should be in charge of running Maui County? This question was asked at a hearing on a resolution before a subcommittee of the Maui County Council and two answers emerged: the mayor or a county manager?
So what exactly is a manager? To answer that question, we have to look at the entire structure of the government itself. A county manager comes from an entirely different model called the council-manager system of government. In that system, only the council is elected. The council oversees the budget, general administration, and establishes various policies. To carry out these policies and laws, the council appoints a professional manager to run the day-to-day operations of the county. According to the National League of Cities, this is the more common form of government among counties and municipalities in the United States.
The council-manager model emerged out of the Progressive Era in the early twentieth century. It was meant to curb the political favoritism that came with the mayoral form of government in large, industrial cities like New York City. (Tammany Hall in the Big Apple was famous for such forms of favoritism.)
The first city to adopt this form of government was in 1908 in a little town called Staunton, Virginia. It caught on quickly and spread to cities and counties during the first two decades of the twentieth century. Other countries like Belize, Ireland, Canada, and New Zealand have adopted this form of government too.
So should we do the same? Many who testified before the Council on Monday think so. After all, the county manager doesn’t have to worry about fundraising and re-election campaigns. He or she would be answerable to the Council for appointments and carrying out the duties and services of the county. In a lot of ways, the manager is something like a chief executive officer in a corporation (or an executive director in a non-profit corporation) and the council serves as the Board of Directors.
Ironically, the resolution to consider a form of government designed to keep politics out of county affairs could be politically motivated. The resolution came from Council Chairman, Mike White. White has written editorials in this newspaper that have encouraged everyone to consider this form of government. White also has butted heads with the current Arakawa administration on various issues, proposals, and projects.
Of course, there were others at the hearings this week who want to keep voting for a mayor and want to continue with the traditional mayoral form of government. The county government we have now—which is the form of government for all counties—goes back to the same era in the early twentieth century.
While the Progressive Movement sought to reform municipal government, the people in the Territory of Hawaii simply wanted a municipality. Counties were created by way of a statute in the Territorial Legislature in 1905.
Unlike the mainland, voters in the territory were not allowed to directly elect their governor. The governor’s post was appointed by the President of the United States and in a few cases it was a political plum. Territorial governors often switched with the president and some had never been to Hawaii before taking on the job.
The creation of counties at the very least allowed people to directly elect an executive leader and a county council. Historically, this created a form of populism that has often been overlooked and forgotten. Long before the stark political changes in the 1950s, working people, unions and other civic organizations started flexing their political muscles early and on the municipal level.
John H. Wilson was the closest thing you could call a “celebrity” civil engineer and surveyor. Part Native-Hawaiian and born and raised on Oahu, Wilson made a name for himself as an engineer of big road projects, including our own Hana Highway.
He also was a politician. In 1900, the first year of the territory, Wilson helped form the Democratic Party of Hawaii. He was elected mayor of the City and County of Honolulu three different times from the 1920s through the early 1950s.
Mayor Wilson was among the few directly-elected leaders at the time. He considered his party the “party of the unwashed” and spoke on behalf of the little guy. People liked Wilson and he was beloved by many for what he did for the City during the territorial era.
So perhaps Councilmember Riki Hokama has a point when he said on Monday that “there is nothing wrong with being political.”

But don’t expect major changes anytime soon. The resolution heard this week doesn’t alter any government structures. Far from it. It creates a committee to review and explore the county manager as a possible alternative. The resolution is scheduled to be heard by the full County Council on November 20. Rest assured, the question will come up again.

Friday, September 11, 2015

The Obscure Origins of the Shaka

Take your hand and make a fist. Now extend your pinky finger and your thumb. Seen it before? Of course you have! This is Hawaii.
You see it on the road when you let someone into your lane. Teenagers in group photos pose with huge grins and make over-the-top gestures. Even tourists see it. We put it on every imaginable sort of paraphernalia. One of the first things I acquired when I moved back to Hawaii was a silk tie with the little hand gestures on it. I got it from someone who was moving to Washington D. C. and felt he couldn’t get away with wearing it there.
Like the plate lunch and other local institutions, the shaka is part of local culture. But where did it come from?
Many credit the Mormons. Hamana Kalili grew up in Laie in the late nineteenth and early twentieth centuries. He helped construct the Mormon Temple that stands there today.
Kalili also worked at the Kahuku Sugar Mill feeding sugar cane onto gigantic rollers that squeezed out their juice. Apparently, Kalili got his hand stuck in these rollers and lost the first three fingers on his hand. (In another story, he lost his fingers to a hungry eel on the reef.)
After the accident, he worked as a security guard and traveled between Sunset Beach and Kaaawa. Kalili still waved at passersby. Now, however, he had a very distinct-looking wave. Kids apparently imitated him and would wave back. The shaka was born.
As he got older, Kalili got involved in his church’s luau and hukilau activities for tourists. Playing the part of King Kamehameha for tourists, Kalili would wave at them in his own distinct way. There’s even has a statue of Kalili at the Polynesian Cultural Center in Laie. And of course, he’s flashing a shaka.
But that’s not the end of the story. Kalili’s wave would have been lost to history or confined to the small windward Oahu towns if it weren’t for television and a very enterprising car salesman.
David “Lippy” Espinda sold cars for 26 years at the intersection of Kalakaua Avenue and Kapiolani Boulevard. His car lot is gone and has been replaced by multi-million dollar buildings, but back in his day, it was ground zero for the pidgin-speaking salesman.
Lippy was known throughout the islands for his colorful advertisements on television in the 1960s and ‘70s. He’s credited as one of the very first people to speak pidgin to TV viewers. Espinda was known to finish his ads by flashing a hearty shaka and sign off with the phrase, “shaka, brah!” Espinda died in 1975. By then, the shaka—like rubber slippers and spam—was part of local culture. He cited the word “shaka” not to the Mormon fisherman, but to his boyhood days playing marbles. A good marble shooter in old Honolulu was known as a “sharp eye.” But the old pidgin phrase for “sharp eye” morphed into “shark eye.” And with the accent, Espinda got the word “shaka.”
A year after Espinda died, the maverick haole from Connecticut started campaigning all over Honolulu with a new symbol. Frank Fasi knew the power of the shaka. For years his campaign signs consisted of the yellow shaka. When he left the Democratic Party to form his own independent party—aptly named “The Best Party”—he brought the shaka with him. A chubby hand in black and yellow became synonymous with the popular politician.
But perhaps the most widely-seen shaka came in 2009. Oahu-born and Punahou-educated, Barack Obama, had just been inaugurated as the forty-fourth President of the United States. It was a cold day in January and the traditional parade was making to the newly-sworn president.
When President Obama saw his alma mater’s marching band, he made the local greeting and smiled. Someone snapped a photo and the new President of the United States in a long, black coat and scarf proudly revealed his roots.
The shaka was seen around the world. And it’s a good sign to represent Hawaii. Decades after his ’76 campaign, Fasi in an interview explained why he liked the shaka so much.
“I think (it) meant shake it up, buddy. How’s it going? Aloha. Have a good day. All those good meanings. It just meant a world of goodness.”
I think he’s right. The shaka makes everyone feel good, and no one should be shy about doing it. I’m just glad the guy who gave me that tie didn’t want it back so he could wear it in the capitol.


Monday, August 31, 2015

Buzz kill on the Bikini

In Hawaii, we love bikinis. The two-piece is as ubiquitous as a pair of rubber slippers or a beach towel. Whether you’re kicking back at the Cove in Kihei, scanning for waves at Hookipa, or cooling off at Iao Valley, you’re bound to see one.
We have bikinis for just about any occasion: bikinis for tanning, for surfing, for swimming, for beauty pageants. Bikini-clad women are on pages of magazines, in advertisements, and on television commercials. Whether you’re playing beach volleyball or strutting across a stage in a beauty contest, the bikini is everywhere.
The two-piece has a long history, but the bikini got its start right after World War Two in the summer of 1946.
France was still in shambles from the Second World War, but was happy to have its first war-torn-free summer in years. Fashion designer Jacques Heim introduced a scandalous two-piece swimsuit for women that shocked the public in his day. Heim called it atome after the atom and had skywriters fly above Mediterranean resort towns announcing it as the “world’s smallest bathing suit.” (A picture of the swimsuit only shows how far we’ve come since 1946.).
Three weeks later, he was outdone by a rival designer and showman. Louis Reard took his two-piece to a nineteen-year-old stripper and had her model it around a public pool in Paris. Reard’s design was smaller. He even bragged that it was “smaller than the world’s smallest bathing suit.” What made this different was the exposure of the model’s belly button. No one had seen anything like that before. It even managed to shock war-weary Parisians.
Reard’s wanted the name of his creation to be just as explosive and shocking as the reaction it got from the public. He called it the bikini.
It’s too bad he went there. What Reard--and so many of us--don’t realize is that name for that risqué kind of swimwear is much darker than he imagined.
Reard named his two-piece after the Bikini Atoll, a ring of itsy, bitsy, teeny, weeny, islands surrounding a large coral reef and lagoon in the western Pacific. The water is a sparkling blue and the sands are white. Fish and crabs are in abundance.
During World War Two, the Japanese occupied Bikini as an outpost and the rest of the Marshall Islands until it was crushed by the United States in the bloody battle at Kwajalein Atoll. The five Japanese soldiers manning Bikini killed themselves in a foxhole as the American forces closed in in 1944.
Months after the war, the Americans selected Bikini Atoll as the testing ground for nuclear weapons. Bombing began in 1946, just four months before Reard’s nude dancer paraded around Paris.
In all, we detonated a total of 23 atomic bombs. We blew up the reef, blew up islands, and even blew one up in midair and let radioactive ash rain down for miles. Millions of tons of sand, coral, plant life, and sea creatures were sent sky high from the blasts. We stripped the land of its trees and after a radioactive fallout caused by the bombing, several islands were uninhabitable.
Most of the black-and-white footage of the mushroom clouds rising high in the air among the clouds comes from Bikini. The bombing finally stopped in the mid fifties.
Bikinians at first believed that they would be able to return to the atoll shortly after the tests. They were wrong. They were shipped from one camp to another in the Marshall Islands. Many starved. By the 1960s, they had settled onto an atoll that was a fraction of the size of Bikini.
An attempt to resettle their homeland failed in the 1970s when they discovered that the crabs that were part of their native diet were radioactive. There was no food left and they left again.
The late University of Hawaii anthropologist, Dr. Leonard Mason, investigated on the status of the displaced Bikinians and was horrified by their living conditions on other islands. He became their advocate. Without taking direct responsibility, the federal government has provided housing, funds, and relief to Bikinians, but it can’t replace home. Bikini Atoll remains largely uninhabited (only five or six caretakers live there). Descendants of the last generation of Bikinians still hope to return some day.

That’s what the popular two-piece swimsuit is named after. Reard explained that he named the swimsuit after the test site because exposing a woman’s navel was just as explosive as an atomic bomb. Far from it. Tell that to the Bikinians.

Friday, August 14, 2015

Heating up the old Cane Fire Debate

For more than one-hundred and fifty years, companies have produced the sweet condiment in the islands. It’s just about gone. Maui is the last place in the islands where you can still see sugar cane waving in the trade winds.
That also makes Maui the last place in Hawaii to experience a cane fire. The next time you find yourself driving up to the Crater for sunrise, check out the island below and look for bright orange lines of fire illuminating the dark.
From that vantage point, the fires are spectacular. When you are stuck in traffic commuting to work and you are engulfed in haze and ash as a thick columns of smoke rises above the fields and the highway, however, it’s hellish.
When I was a kid, I didn’t think anything of it. Cane fires were normal like trade winds and big surf in the winter time. It was an unquestioned part of life on Maui.
That’s changed. Years ago I met a lawyer from California who had experienced his first cane fire at his hotel in Wailea. He was utterly amazed that we still had cane fires. How come, he wondered, no one challenged the sugar companies for burning their fields? Surely it couldn’t be legal, he said.
That challenge has finally come. An unincorporated entity calling itself Stop Cane Burning, along with three individual plaintiffs have sued the State, which issues the permits allowing the burning, and Alexander and Baldwin, the company that runs the Hawaiian Commercial & Sugar Company.
The plaintiffs argue that the State’s issuance of the permit allowing the cane fires violates the State Constitution’s guarantee of a clean and health environment. They argue that it violates the state’s regulations designed to ensure a clean and healthy environment. The plaintiffs are also seeking an injunction that would stop all cane fires while the case is pending. Alexander and Baldwin filed a motion to dismiss the case all together. Both the matters are set for a hearing before Judge Joseph E. Cardoza in September.
This is more than just a lawsuit. Cane fires are a perennial talking point here. No one likes a raging fire near their home, workplace, or school. The fires are a health hazard and a nuisance. Ash in the stairwells are ugly. Irritated eyes and constantly coughing is no way to live, but sugar is part of life.
“The sugar cane industry is not ‘a Hawaiian institution’ and it was not kanaka who industrialized it,” said one of plaintiffs, Trinette Furtado.
She’s right. Sugar changed Hawaii dramatically.
Consider the land. Sugar transformed the arid hills and plains of Central Maui into the green fields we see from the airport to Upcountry today. The sugar industry long ago took water from the rainy North Shore and the verdant parts of the West Maui Mountains through an intricate system of irrigation ditches. It wasn’t a surprise that the water for the thirsty crop changed the streamflow. Hundreds of years later the use of the water remains in dispute.
But perhaps the most dramatic change brought about by sugar was the importation of immigrant labor. Everyone educated in Hawaii knows that the sugar cane industry brought in people to tend the fields, maintain the ditches, harvest the plants, and run the mills.
Sugar companies recruited and used workers and their families from just about every part of the world. They were housed in plantation homes and raised their children in the plantation school. For decades, the sugar cane industry created its own closed culture.
Furtado is right. Sugar is not a Native Hawaiian institution. The sugar industry mixed people with diverse backgrounds together into a one-of-a-kind creation we now call “local culture.” For many folks, an attack on the sugar cane industry is obnoxious and offensive. Some see it as an attack on local culture itself. HC&S has tried to find an alternative to cane burning, but no viable solution is in sight. HC&S, which employs approximately 800 folks, does not and cannot seem to separate sugar harvesting from cane fires.
And so begins what could be a big case for Hawaii. I’m sure as the hearing date gets closer the perennial debate between the pro-sugar and anti-fire camps will heat up. Angry letters will no doubt be sent to and published in this paper. Comments online will be unforgiving, misinformed, and vicious.

But can both sides prevail? Can we keep the sugar cane and at least minimize smoke and ash to reduce complaints? Or will the residents in Kihei and Paia be finally free from smoke and ash at the expense of the last sugar company in Hawaii? And what becomes of the 36,000 acres of cane fields? The answer could be coming soon and it may not be pretty.

Monday, August 3, 2015

Reviving an Old Holiday from the Kingdom

In the no-man’s land between downtown Honolulu and Kakaako is a big, green park. The park, however, holds a unique place in Hawaii history.
It goes back to the 1840s. By then the rest of the world had heard of Hawaii. The kingdom itself was already on to its third ruler: King Kamehameha III. Businesses and diplomats from France, the United States, and England were stationed in Honolulu.
The rights and privileges of foreigners were still in flux. Private property, land ownership, and other western concepts hadn’t really taken root. But that didn’t stop traders, merchants, and companies from doing business in the islands. Courts were set up and the Hawaiian economy was starting to buzz.
But a group of Englishmen were not happy; least of all a diplomat named Richard Charlton. Charlton was notorious for calling foul whenever he didn’t get his way. When he brought a questionable claim of land near Honolulu Harbor, he was taken to court to determine his rights. He lost.
Charlton eventually boarded a ship and met with a few fellow Britons in Mexico. He told them that his countrymen’s interests were in jeopardy in Hawaii and demanded action. Capt. Lord George Paulet responded by sailing to Honolulu to investigate. The king held a cool reception.
English agents and diplomats conspired to take over the islands and made more and more demands on the king. Finally, the English took over. They brought down the Hawaiian Flag, raised the Union Jack, and declared the islands under the jurisdiction and control of Great Britain.
For five months, Hawaii had joined the other colonies of the empire. Charlton made sure that his case was overturned (along with others). Hawaiian flags were destroyed and the law was in flux. Ironically, the economy tanked because it was uncertain what would happen next.
The king was not pleased. He sent a diplomatic mission straight to London. He also ingeniously smuggled an account of the takeover along with Paulet and Charlton’s report to the homeland.
In June 1843, both accounts hit the desk of the Foreign Office in Whitehall. The timing worked well. The king’s mission got there in time and made their case to the crown. They won. The crown agreed that the occupation was unlawful.
In late July, Capt. Richard Thomas arrived into Honolulu and requested an audience with the king. He told him that the occupation was no more. Charlton was dismissed and the Hawaiian kingdom was formally restored on July 31, 1843.
In honor of the good Capt. Thomas, a bit of land was set aside, turned into a park, and named in his honor. That’s the section of Honolulu real estate separating King from Beretania is Thomas Square.
And since the Union Jack came down that day, the Hawaiian Kingdom celebrated with a holiday. In the islands, we used to call the last day of July Restoration Day. But calling it Restoration Day these days is a bit odd. We are living on the other side of the overthrow of the monarchy and on the other side of American-style imperialism. To mark this day as a restoration of Hawaiian sovereignty (only to later lose it again in 1900) is a little weird, right?
That irony has not deterred Native Hawaiians. Last month the County Council on the Big Island considered a bill to recognize Restoration Day. It was primarily an empty gesture since it would take the State Legislature to get in on the act.
But proponents of the special day are not deterred. A big event has been planned in Hilo commemorating the restoration of Hawaiian sovereignty, including hula, food, and music.
There is still a good reason to stop and recognize the significance of what happened at that park so many years ago. The whole affair forced England to give something back to its native inhabitants. One of the mightiest and most aggressive European powers in the nineteenth century formally recognized the sovereignty of the Hawaiian kingdom ruled and populated by nonwhites. It was the first time the rest of the world took notice of that the tiny collection of islands in the middle of the Pacific was in fact a nation.
It also may have been the catalyst for King Kamehameha III. His advisors realized quite quickly that an independent island nation ruled by an aboriginal leader is a rare thing. This was the same time England engaged in the hostile takeover of Hong Kong. In the United States westward expansion and the systematic destruction of Native American tribes was fashionable.

And yet, in this little part of the Pacific, the imperialist power yielded to a small country’s right to simply exist and govern itself. Maybe that’s reason we still need to celebrate Restoration Day.

Tuesday, July 21, 2015

Hawaii's Obsession with Mainland Prisons

President Obama made history in Oklahoma this week. Yesterday he went to the Federal Correctional Institution El Reno, which once housed the infamous domestic terrorists Timothy McVeigh and Terry Nichols, the ones behind the Oklahoma City bombing in 1995. The visit makes Obama the first sitting president to ever visit a prison.
And he has a good reason to go. The visit highlights his campaign to reform the harsh laws on the books that punish non-violent offenders.
In 2011, it was estimated that 2.2 million people in the United States are incarcerated in federal, state, and local institutions—that puts our country with the highest incarceration rate in the world. In a report to the United Nations, it was estimated that African-American males are six times more likely to be incarcerated than whites. Based on that trend, “one of every three black American males born today can expect to go to prison in his lifetime, as can one of every six Latino males—compared to one of every seventeen white males.”
The numbers are staggering enough to get the President moving. This week Obama shortened sentences of 46 offenders surpassing Lyndon B. Johnson’s record for the most commuted sentences.
Even though Hawaii’s imprisoned population is generally lower than the national average, we still contribute to the incarcerated populous. On top of that, we add peculiar problem to the prison industry: we ship them out.
Back in 1995, we started the business of exporting our incarcerated. In the name of saving money, three hundred souls were shipped out to privately-run prisons in eastern Texas near the Louisiana border. It didn’t take long before trouble started. Inmates protested the food, prison wages, and fights broke out. The guards opened fire on the inmates and later the Department of Justice investigated and found them to be poorly trained.
Our authorities remained hopeful and two years later, we sent another 300 to Texas, including women to a different facility. Problems persisted. The private prisons were cited by Texas and federal authorities for poor conditions and badly trained guards. Hawaii still shipped out her inmates. It even expanded the program to other facilities all over the country.
Hawaii inmates were watched closely back here. Most felons sentenced to prison by Hawaii courts had never been to places like Mississippi. Most hadn’t been bunked with convicts from places like Montana, Texas, or other faraway places. Surely they encountered gangs that had no real ties to the islands. It’s no understatement to say that they had a hard time adjusting.
Take the food. Fifteen years ago, in another private prison in Arizona, Hawaii inmates caused a riot. For ninety minutes they smashed windows, attacked guards, smashed television sets and computers. They even held a guard hostage and another broke his hand. The reason for the riot? Hawaii inmates couldn’t stand how the rice was being cooked.
There are other more serious issues too. Over the years, the State has been sued by inmates citing all kinds of civil rights violations ranging from sexual assaults against female inmates to failing to protect them from other inmates and gang violence.
Despite all of the problems, (the Department of Justice in 1998 declared the private prison in Texas a form of cruel and unusual punishment), we still keep doing it.
Former governor, Neil Abercombie, wanted to change that. He made it a campaign promise to bring home our inmates. By the time he took office in 2010, most of our inmates on the mainland were being housed in Arizona.
By 2014, Abercrombie was boasting that he brought down the number of mainland inmates from 2,000 to 600. He was proud of the opening of a new facility on the Big Island that kept jobs, money, and the incarcerated in our State.
The governor argued that when we ship out inmates we are making it even harder for them to keep ties with their families, roots, and their community. It only makes the eventual transition on parole and back into society that much harder.
Neil, as expected, has his critics. No one was exactly ready to step up to the plate and build a facility. The reason was simple: no one wanted a prison in their back yard.
It’s too bad. Prisons do bring jobs and money into the local economy. More importantly, we can avoid ripping families apart when we sentence a person to prison. And although Abercrombie brought the numbers down, he still failed to eliminate the inmate-exportation industry all together.
So far David Ige hasn’t said a word about it, and we are still shipping ‘em out. Perhaps someday we can end it and bring everyone back home. In the meantime, let’s hope the folks in Arizona learned how to make rice.

Friday, June 19, 2015

Sex, Violence, and Tourism

Complaining about tourists is a favorite past times here. Sure their dollars keep our economy running. And yes, I get it. They’re just so awestruck by rainbows, beaches, and scenery that they have to drive 5 miles below the speed limit to snap photos instead of pulling over. But, why must they do it when we’re trying to get to work?
Academics and activists argue that tourism damages the host culture. The businesses, shows, shops, and industries that have built around tourists have cheapened the experience of being in Hawaii and are a form of imperialism, they say. Perhaps, but this isn’t new. More than a hundred years ago, Maui saw clans of the rowdiest, harshest, and meanest tourists you’d ever see.
In the mid-nineteenth century, Maui had a savage tourist industry thanks to whaling. It was no cake walk getting here. Yankee sailors started out on the Eastern seaboard, usually Massachusetts. From there, it was due south skirting the shores of the Brazil and Argentina. They’d head west to round the treacherous Cape Horn between Antarctica and South America in order to reach the Pacific.
A whaler’s life was rough. The crew was confined to sleeping in small rooms under the deck. The food was atrocious. Sailors ate salted meats, hardened biscuits, and used cockroach-infused molasses to sweeten their coffee.
The tedium was interrupted by the actual whaling part, which was extremely perilous. When the ship spotted one, whalers would jump into a small boat, row up to the behemoth, and stick it with harpoons. If you weren’t thrown from the boat in frothing waters with a massive cetacean, there was the risk of getting the boat crushed by the whale itself.
And when you finally slayed the beast and got it aboard, the real work of converting every imaginable piece into some commodity like bones, oil, blubber, and even meat took days.
Needless to say, by the time ships were within sight of the West Maui Mountains towering above Lahaina, everyone was ready to get off the boat. The whalers started coming to Lahaina in the 1820s and continued for another forty years or so. The town’s banner year was 1846 when 429 whale ships dropped anchor (only 167 stopped in Honolulu that year). It wasn’t the whales that attracted them. The port was a much welcomed break and vacation spot. Arguably, the whalers were Maui’s first tourists—and they were really bad.
Bars and grog shops started popping up. Not only that, but the ships attracted locals from all over the island to entertain the crews—especially young women. Promiscuity, booze, and rowdiness ruled the day.
Local chiefs and resident missionaries weren’t happy. They passed laws prohibiting the sale of liquor, commingling of crews and women, and jailing offenders. The sailors and the businesses catering to them didn’t care. A constable complained that there were so many places to buy booze that he could not “get a fair chance to fine them.”
Riots ensued. In the early 1820s, the governor of Maui at the time discovered women snuck aboard an English whaling ship in violation of the laws. When the captain was ashore, he held him hostage. The captain’s first mate demanded his released in an hour or else his ship to open fire on the town. He was released when he promised to return the girls, but the ship fired its cannons anyway. They were aimed right at the mission house on Front Street. When the captain returned to the ship the firing stopped and they headed out to Honolulu. The girls were never returned.
Then there was the time in 1843 when a crew of drunken whalers tried to kidnap King Kamehameha III, who resided in Lahaina. They were met by angry locals hurling rocks at them. Their leader was struck to the ground and dragged over to a nearby fort. A riot broke out. At the docks sailors and locals hurled rocks and obscenities at each other. Skulls were broken and it’s unclear if anyone died. It wasn’t until officers with swords showed up before the sailors started to calm down.
Thankfully, American whaling is over. The discovery of petroleum in Pennsylvania made the pursuit of sperm oil in whales pointless. The industrial revolution after the American Civil War finally brought about the death knell to the industry. These days, our visitors are less fierce. Sure, tourists speeding down Front Street on mopeds without a helmet, common sense, and sunscreen are obnoxious, but at least they’re not kidnapping and pillaging.

Much has changed since the riotous nineteenth century, but one thing remains constant. It’s still against the law to wander the streets and lanes of Lahaina with a drink. Folks get cited from time to time. The missionaries would be proud.

Friday, June 5, 2015

Hawaii's Obsession with Criminalizing Being Outside

Jalisa Jose was on vacation celebrating her twenty-first birthday. At around two in the morning, she and her girlfriends sat down to rest along the famous sands of Waikiki Beach. After having a seat, the police came out of nowhere and cited her for breaking the law. Jose and her friends were ordered to appear in the Honolulu District Court long after their vacations would be over. These ladies aren’t alone.
Hawaii News Now reported last month that one in five of the citations issued for the new anti-homeless law are tourists. The police issue the citations to anyone they see in the famous park after midnight and late-night carousing tourists are getting swept up in the dragnet with the homeless.
The irony is just spectacular.
The law was designed to help tourists like Jose enjoy their vacation and spend money. When it was passed in 2014, then-Councilman Stanley Chang announced that “the reason we have gone to such extraordinary lengths is because the homeless issue has impacted residents, visitors and the workers of Waikiki in a way that existentially threatens the economy of our community.” Nice one. Tell that to tourists like Jose who get cited on vacation and vow never to return.
This new crackdown on having a seat is nothing new. It’s another chapter in Hawaii’s quixotic quest to criminalize being outside.
          One summer’s day, the police cited Camelio Anduha for “loafing or habitually loafing” on Liliha Street in Honolulu. Anduha went to court and argued that a law criminalizing loafing, loitering, or idling on the public streets and sidewalks was unconstitutional.
The trial court agreed, but the prosecution appealed. The Hawaii Supreme Court ruled for Anduha and in doing so proved to be prescient about Jose’s case:
“Visitors, lured by the fame of our climate and of our natural scenery and the hospitality of our people, come here for recreation and pleasure. Many of them, having no other occupation, habitually but harmlessly idle or loiter upon our streets and highways. In their pursuit of happiness, which is a guaranteed right, they loiter before shop windows, pause to enjoy the changing colors of the ocean and to talk with friends. . . . Also, there are persons who, taking advantage of the leisure they have on the Sabbath, habitually go for long hikes along the public highways. When weariness overtakes them they stop for rest. Attracted by the beauties of the landscape they loiter and idle for as long as they chose. . . . Is the legislature empowered to declare them lawbreakers?”
          The Court struck down the anti-loafing law. That was in 1930—eighty-five years Jose and her friends got their citations in Waikiki because they were sitting down on the sand in the middle of the night.
But bad ideas die hard in Honolulu. Decades after Anduha’s victory, another challenge arose.
It was 1970. James Lavin and Craig Grahovac were charged with a law similar to the territorial anti-loafing law. Both were accused of being a “person who wanders about the streets at late or unusual hours of the night, without any visible or lawful business.”
At their trial, the police testified that they were spotted at 1:00 a.m. walking through a part of Ewa Beach on Oahu at a place that where “youths congregate and sniff paint.” Lavin was incoherent; Grahovac was disheveled. They were found guilty. Lavin was sentenced to jail for nine months. Grahovac got six. They both appealed to the Hawaii Supreme Court.
Again the Court struck down the law. Simply put, criminalizing the act of “wandering” at “late or unusual hours of the night” was too vague to be constitutionally sound. The Court explained that such the law “subjects a pedestrian to the unbridled discretion of an officer whose standard for law enforcement is equally nebulous.”
Forty-five years after Lavin and Grahovac exercised their seemingly constitutional right to wander around paint-sniffing spots late at night, the Honolulu City Council has criminalizing the act of sitting or lying on a sidewalk throughout the city.
This year the Council passed a bill that extended the ban beyond Waikiki and criminalize sitting and lying on sidewalks all over Oahu. Mayor Kirk Caldwell, however, vetoed the measure because he feared that it couldn’t withstand a constitutional challenge. But on Wednesday, the Council overrode the veto and extended the ban. Now the stage is set for another constitutional challenge. If history is any guide, Caldwell could be on the right side of history.

But that’s no consolation for tourists like Jose. She missed her court date when she flew home. The citation and possible bench warrant has left a bad taste in her mouth. It will only be a matter of time before the law gets challenged. Perhaps Jose is the next Anduha or Grahovac.

Friday, May 22, 2015

"Footloose" - Maui Style

            A while back some friends over from Honolulu came to town once. They wanted to go out. Compared to the tropical metropolis on Oahu, Maui’s night life is a bit lacking. Nonetheless, they managed to find a packed house with a big crowd, loud music, and a dance floor. When they tried to hit the floor, however, security guards came out of a dark corner and ushered them off.
            I forgot to tell them about our county's strange institution and its even stranger rules. No drinks on the dance floor. Anyone dancing outside the designated “dance floor” area, well, can't. Yes, it’s an actual rule. That's why bars have a marked off area with tape on the floor or set up a barricade of tables to make space for dancing.
If you have to work with liquor on this island, you probably know about our Department of Liquor Control. The rules they make and the way they enforce them have made just about every establishment that sells liquor to the public a potential target. It starts with a citation to the license holder. The establishment would then have to face the liquor commission and plead its case. The penalties can range from monetary fines, suspensions, and in the most extreme cases a revocation of the liquor license. In other words, bars and restaurants take liquor license violations seriously.
The no-dancing-outside-the-designated-dance-floor rule has troubled tourists, partiers, drinkers, and especially bars for years. Some folks have even organized and gotten a bit political about it.
            Maui Dance Advocates has been campaigning against the liquor commission’s rule about dancing. Their mission, according to their website, is pretty straightforward: “We have been working hard for 9 years to figure out if we can bob our heads and tap (our) toes in bars and restaurants. We like dance floors for dancing, but we want a little wiggle room while we are standing around listening to music in places that sell alcohol.”
            Last year, the Legislature got in on the act and a bill was bandied about that would require the County to define the term “dancing.” Seems easy enough, right? But then again, where do you draw the line? Is bobbing your head to music dancing? Do you need a partner in order to dance? What about music? Do you need that? What about tapping your toe? And then there’s the First Amendment’s protection of the freedom of expression. Wouldn’t dancing fall under that too? Could such a rule withstand a constitutional challenge?
            It shouldn’t be a surprise that our County’s Department of Liquor Control, along with the City and County of Honolulu, opposed the measure. The liquor commission opposed the bill because it did not cite “any liquor licensees for any dancing-related violations.” That may be true, but just because a bar didn’t cited is beside the point. The bars—often afraid of getting a citation—enforce the rule themselves. The dance advocates often argue that the bouncers and bar owners clamp down on dancing in order to avoid a citation in the first place.
            In any event, the bill went nowhere. It never made it out of the Legislature.
            This year’s different though. Maui Senator J. Kalani English introduced a new bill that basically empowers each and every county the right to enforce limitations on dancing at bars and restaurants that serve booze. Here’s the catch: if we’re going to regulate dancing, the bill requires the county to define the term “dancing.”
            Jiva Jive, the leading advocate behind MDA, has been hopeful things will change.            He and his colleagues showed up at the Capitol this session to show their support for the bill by dancing in the rotunda. Decked out in his massive afro and purple crocs, Jive was cutting a rug in support of the bill.
            Apparently it worked (the fact that the County didn’t oppose it probably helped too.). This year the Legislature passed the bill and it is awaiting Governor Ige’s signature. He has until June 29 to let us know if he intends to veto the bill. From there, he has another 10 days to actually veto it. Then the Legislature would have to figure out if it wanted to override him in a special session.

            Then again, the governor could sign the bill or let it pass into law without his signature and the County would have to come up with a definition for the word “dancing” no later than October 1. And good luck with that.

Friday, May 8, 2015

Hawaii's Weird Relationship with the Fifth Amendment

Criminal defense lawyers like the Fifth Amendment. It’s got a lot of good stuff in there like the right to a grand jury—the right to have total strangers decide if the government has enough evidence against you to even accuse you committing a serious crime. And of course we can’t forget self-incrimination. That’s when you get to refuse to answer questions from Congress or a court and “plead the Fifth.”
But at the very end of the amendment are twelve words that never get much limelight: “nor shall private property be taken for public use, without just compensation.” It’s too bad. Lawyers like to call it the Takings Clause and it’s at work in every state in the union.
You can see it at work on Oahu today as the billion-dollar rail project plows through neighborhoods, commercial blocks, and parking lots across the west side. The corridor from Kapolei to Honolulu is not entirely on public land. It’s a patchwork of privately-owned real estate.
If a landowner doesn’t want to give up his or her property to the government, the government can go ahead and take it so long as it’s for public use and so long as it gives the landowner just compensation. Taking property for public transportation is a classic example of “public use.”
But sometimes things get a little weird. Most folks agree that condemning property for a freeway or a public rail system is public use, but what happens when the government doesn’t hold onto the property and gives it to someone else? Is that public use?
When I was in law school on the mainland, I remember having to take a property class and read a remarkable a case from the U.S. Supreme Court. The opinion starts with the Polynesians who settled the Hawaiian Islands and practiced what it called “a feudal land tenure system.” Reading up on modern-day Hawaiian history for a property class in Lawrence, Kansas got my attention and I was blown away when I learned more about it.
In the early 1960s, right after Statehood, we had a very progressive State Legislature committed to addressing some very old institutional problems in the islands. One of the most controversial was what was perceived as a high concentration of land ownership by a handful of private landowners. Sugar companies and royal estates had given away to land trusts that owned enormous portions of the islands. This form of land ownership went all the way back to the days of the Hawaiian Kingdom in the 1840s.
Over the years, most regular homeowners did not own the homes they lived in. Instead, they had long leases. This, apparently, was simply un-American and the Legislature set out to remedy this problem.
It decided to implement a dramatic and arguably revolutionary form of land reform. It created the Hawaii Housing Authority. The HHA received petitions from leaseholders and, once it determined if it was in the public interest, had the power to condemn portions of land, cut it up into smaller lots, and redistribute them.
I was shocked. It seemed really radical to think that our State would go up against landed estates, take their property, and sell it to working people. Then again, countries in the developing world were doing far more revolutionary things. Hawaii’s land reform debate was occurring around the same time Fidel Castro’s took control of Cuba. Former African colonies had declared their independence and were looking for ways to address the disparity of income. Wealth redistribution was the “it” thing to do.
The big land trusts challenged the constitutionality of the HHA. They invoked the Fifth Amendment. How can this be “public use” under the Takings Clause if it’s going straight to a private landowner? The case went all the way up to the Supreme Court (not the most revolutionary institution by a long shot) and the court found the purposes behind the HHA were indeed in furtherance of public use.
“The people of Hawaii have attempted, much as the settlers of the original 13 Colonies did, to reduce the perceived social and economic evils of a land oligopoly traceable to their monarchs.” The Supreme Court was calling out the landed estates as oligarchs and the State had every right to try and break up their estates for the public good.
Of course, lofty goals don’t always pan out. The Supreme Court had condoned the legislation of 1967 in 1984. The ardor of the 1960s had cooled. Many who lead the charge against the landed estates were becoming trustees themselves.

There’s still a high concentration of land ownership and the lease-to-fee debate continues all over the islands. The HHA has been renamed and its powers are seldom exercised. So much for radicalism. At least the Fifth Amendment is still around.

Friday, May 1, 2015

Remnants of Ancient Canadians Found in North Kihei

      There is a strange site in North Kihei. It’s across the old Maui Lu and next to what now seems to be a defunct condominium. A grove of tall and skinny coconut trees surround a large boulder. The boulder is enclosed by a low rock wall under a grove of tall coconut trees.
      If you don’t know where to look, you will breeze right by it. There’s no place to park and no marker to attract visitors. It’s a memorial that’s been beaten up by the weather and faded by neglect. But I could still make out the hand-written inscriptions on the rock wall:
      “Captain George Vancouver, Maalaea Bay 1792. . . . 1793, he brought the first cattle and root vegetables. 1794 granted the right to the Hawaiian people to fly the Union Jack as part of the Hawaiian flag. Unveiled by Mayor Elmer Cravalho. Dec.-22-69.”
      The other one is even more strange:
      “Aloha and Kla-How-Ya. Canada’s [illegible] to dedication Kihei Monument to Captain George Vancouver. May the Kla-how-ya spirit/the Aloha welcome forever prosper in these climes. Pierre Elliot Trudeau Prime Minister of Canada. Dec. 22, 1969.”
      I was really puzzled. But who built it? Was this a joint effort between Maui County and the Canadian government? It sure seemed fishy. First of all, the inscription is handwritten into cement. It is not the work of something you’d normally see from a government.
      I started asking around. While many folks had never heard of it, some long-term Mauians remembered it as well as the totem pole that used to stand next to it. It’s even featured in old tourist brochures and photos from the 1970s.
      But that didn’t solve the mystery. The factual assertions are suspect. Vancouver was among Captain Cook’s crew when they first laid eyes on the Hawaiian Islands. Unlike Cook, who met his end here, Vancouver survived his visit t Hawaii and made several trips back to the islands, including Maui.
      Just like the inscription says, he introduced cattle to the islands. The cows were a gift for Kamehameha. He also added to the fledgling goats and sheep population too. He also gave other chiefs seeds for different fruits like oranges and grapes.
      As for giving Hawaiians the “right” to use the Union Jack, that’s a stretch. He ordered his carpenters in 1794 to build Kamehameha a Western-style ship complete with ironworks, masts, and sails. In the end, he named it the Britannia and left him a Union Jack with a pennant—the proto-type for our State flag. But was this a right that he conferred to the Hawaiian people? Not likely.
      The memorial is just dead wrong when it comes to root vegetables. Vancouver did not bring roots to the islands. Hawaiians did. Long before any Westerner came to these shores, the local diet revolved around taro and yams.
      So what gives? Who would be so devoted to the memory and legacy of Vancouver? I set out to find out more and stumbled across a resolution from the Maui County Council dating back to January 1970. It’s basically a letter of congratulations to a Canadian for building the monument on December 22, 1969—the same date in the inscription.
      The resolution congratulates J. Gordon Gibson, a Canadian logger, businessman, and politician. Gibson made his money in the Canadian Northwest in the logging industry. He was a politician too, but was a bit eccentric. Like Vancouver, he sailed to Maui. The rig was later re-named the Maui Lu in honor of his wife, Louise. And yes, in 1956 he bought a 28-acre property in North Kihei and opened a resort bearing the same name in 1960. The mystery was solved.
Six years later, he apparently built a home-made memorial to Vancouver. The resolution noted that Gibson led “the way for other Canadians to develop the Kihei area.”
      The County Council and Gibson might have been prescient. Would the pioneering Canadian have never dreamed that his countrymen and women would be the biggest group of foreign land buyers on Maui fifty years later?
      Last year, Canadians spent $84 million in buying properties on Maui. Their presence is obvious in Kihei. The red maple leaf flies proudly at strip malls and eateries along South Kihei Road. Canadians are all over Kihei. Many of them are from British Columbia and they all certainly know about Vancouver.
      And so the memorial still stands—long after Gibson and his aging resort, which finally came down back in February. Now that a million-dollar time-share resort will be built over what used to be the Maui Lu, perhaps the bizarre, little structure across the street can get a new totem pole to attract Canadian visitors who know all about Vancouver (and Gibson for that matter).

Friday, April 24, 2015

Is Hawaii the Perfect Haven for Spies?

You wouldn’t think Hawaii is a good place for spies. The weather is too nice for clandestine activities and all that cloak and dagger stuff, right?
Wrong. We might be an ideal place for espionage. It’s an American state, but an outlier at the same time. We’re a major hub for just about every branch of the armed forces; and we have private contractors and analysts who deal with Asia all the time. With a high-powered tourist industry encouraging outsiders to come over and check things out as your cover, you have a perfect place to set up a spy ring.
That was the case in the early 1940s, when Takeo Yoshikawa, an intelligence officer, came under the cover to assist the Japanese consulate. The Japanese had already started planning an attack on the United States, and Yoshikawa provided detailed intelligence on the location of ships at Pearl Harbor.
Yoshikawa worked alone. He spent a lot of time in Aiea Heights, where, on Oahu’s steep mountainside slopes, he would study the ships in Pearl Harbor. He reported the movements of the ships back to Tokyo on a daily basis in a secret code. When Japan pressed for more information, Yoshikawa played tourist and take private airplane and boat tours around the island.
At one point, Yoshikawa was handed a torn piece of paper and $14,000 in cash with instructions to pay the man who had the other piece of paper. Yoshikawa found his man in a house on East Oahu.
Bernard Otto Kuhen became a Nazi in the early 1930s and had ties to propaganda minister Joseph Goebbels and Heinrich Himmler. He was sent to Oahu in 1935 with his family and lived in a spacious house with an ocean view.
Kuhen used his entire family to gather information. His daughter, an attractive haole woman, opened a cheap beauty parlor where military wives gathered and gossiped. He dressed up his young son, Hans, in a sailor’s uniform and get him invited onto boats and submarines for a tour. He taught Hans to be inquisitive about equipment and at home, he would interrogate him about what he saw. All of the information was duly recorded by his wife Frau Kuhen. Kuhen worked out a complicated system of signals for the Japanese involving lights and the position of sheets on a clothesline that could be seen from the beach.
Kuhen was arrested a little bit after the attack on Pearl Harbor. He was sentenced to death, but his sentence was commuted to prison. That too was cut short when he was deported back to Germany after the war.
Yoshikawa was rounded up too. After the attack on Pearl Harbor he was held on Sand Island. The master spy found the suspicion and internment of Japanese-Americans a cruel irony. He later told reporters that the local residents were totally loyal to the United States and almost unanimously uncooperative with him. Eventually, he returned to Japan. He died penniless after living off his wife’s income for decades.
But that was then. These days you’d be hard pressed to find Nazis in Kailua or Japanese tourists sending secrets to Tokyo. Whether any real-deal spies are snooping around is still a matter of debate.
Take the case from Maui. Engineer and weapons specialist Noshir Gowadia bought a palatial home in Peahi on the North Shore. Like Kuehn, he had a great ocean view. The federal government suspected that Gowadia was so desperate to pay off his huge mortgage that he started selling secrets to China. His lawyers claimed it was bogus. The information he sold off was widely known and hardly a secret, they said. In 2010, a jury found him guilty of helping the PRC build stealth weapons. He was sentenced to prison for 32 years.
Then there’s the curious case of Benjamin Bishop. In 2011, the retired-US-Army-reserve-officer-turned-private-defense-contractor started dating a Chinese university student around half his age. Bishop ended up giving his girlfriend information from top-secret files about war plans in conjunction with South Korea, ballistic missiles, and nuclear weapons. Bishop was arrested by the FBI and prosecuted. He pleaded guilty and was sentenced to prison for a little more than seven years.
The weird part is that the student’s identity has never been released publicly, and we don’t know if she’s still in the United States. No one has confirmed if she is an agent for the People’s Republic of China. Was this a classic “honey trap?” Is she a spy? No one really knows.

So maybe Hawaii isn’t a notorious spy den like Madrid of the 1940s. Perhaps there aren’t safe houses like Berlin in the 1960s. But maybe Hawaii will someday be a real destination in the shadowy world of intelligence. Perhaps it already is, and we just don’t know it.