Finberg slammed over 'negative' mail-out ad

The Maui News
Saturday, October 23, 2004

By CLAUDINE SAN NICOLAS, Staff Writer

KULA - At first glance, it looks like a copy of a "Get Out of Jail Free" card from the popular Monopoly game.

But state Sen. J. Kalani English said it's a scare tactic and reeks of negative campaigning, and even county prosecutors say the claim is inaccurate.

The "get out of jail free" statement is in a campaign mail-out produced by English's Republican challenger, Robb Finberg, for the 6th Senate District seat. Finberg said he sent the mail-out last week to approximately 7,000 registered women voters in the district.

Finberg and Green Party candidate Shaun Stenshol are both trying to unseat English in a district that covers Upcountry Maui, Hana, Lanai and Molokai.

Finberg's mail-out has been issued at a time when state Democrats and Republicans are trading accusations that the other side has resorted to negative campaigning.

Finberg denies running a negative campaign and stands behind the mail-out, which features a letter from a Kula woman whose home was burglarized.

Glenda Bacon, a 52-year-old Kula resident, told The Maui News she wrote the letter and authorized its use for Finberg's campaign after she learned the accused burglar in her case could get probation and drug treatment. She blamed the circumstance on legislation (referred to as House Bill 2003 and now enacted as Act 44) passed by the state Legislature. English and other Democrats voted for it.

"It turns out these thieves, regardless of a string of previous offenses, have been granted a 'Get Out of Jail Free' card by the state Legislature," Bacon wrote. "By simply having an ice pipe in their possession, they get rehab rather than imprisonment. What really makes us angry is that our current state Senator, Kalani English, voted yes on the bill that did this (HB2003). That's one of many votes that you won't read about in his campaign mailers."

The mail-out said English is "soft on crime," and it urges support for Finberg, with Bacon signing the notice.

English said the mail-out is a mischaracterization of the legislation and a misrepresentation of his stance on crime. He said the bill steps up penalties on drug dealers, and he also supported $14 million in funding for drug treatment and prevention programs to support the mandatory drug-treatment component of the new law.

"I'm not soft on crime," English said. He pointed out that the union for police officers has endorsed him as a candidate. The endorsement by the State of Hawaii Organization of Police Officers noted that English supported increased prison sentences and high fines for individuals convicted of selling or manufacturing crystal methamphetamine.

English also said convicted criminals' relatives, who have been pushing for rehabilitation for their loved ones, have e-mailed their thanks for the chance for individuals to turn around their lives. The new law provides for family members to seek involuntary treatment for someone addicted to drugs.

"They tell me 'thank you'; we want our children close to us," English said.

Act 44, which was vetoed by Gov. Linda Lingle but became law because of an override by the Democratic majority in the Legislature, runs 78 pages long and addresses a number of legal issues related to drug crimes and penalties.

While the law added more prison time for drug dealers and manufacturers, and even made special impositions on criminals who deal to children, it also clarified sentencing guidelines for nonviolent drug offenders.

An earlier law – Act 161, passed in the 2002 Legislature – mandated judges to order probation and treatment instead of prison for first-time nonviolent drug offenders. In response to questions from prosecutors and defense attorneys during the last two years, the 2004 Legislature granted, through Act 44, to judges the discretion to order probation and treatment to repeat nonviolent drug offenders.

In her veto message last spring, Lingle objected to the bill for a number of reasons, including the portion that allowed for drug users with multiple felony convictions "the possibility of not serving even one day in jail. This is a matter of poor public policy, because other criminals with multiple prior offenses would be given a mandatory prison sentence."

When debating Act 44 last spring, Republicans accused the Democrats of granting "get out of jail free" cards to criminals.

"That's a mischaracterization of the law," said Deputy Public Defender Susan Arnett, felony trial supervisor on Oahu. Arnett had testified on then House Bill 2003, stating her office favored some parts of the bill and disagreed with other parts.

In the debate to give nonviolent repeat drug offenders a chance at probation and treatment, proponents noted that the more appropriate solution for nonviolent drug users might be to rehabilitate them and not lock them up in jail. Proponents also argued that without treatment in jail, the criminal – once released – could repeat crimes if his or her drug problem were not addressed.

Maui County Prosecuting Attorney Davelynn Tengan said her own prosecutors have agreed in certain cases that the more appropriate sentence would be probation and treatment even for a repeat offender who is a drug abuser.

"We have to support drug treatment. It's a fact that people with drug treatment and rehabilitation can change their lives around, and they have changed their lives around for the better," Tengan said.

She said her prosecutors did not testify for or against House Bill 2003. But her office actively supports the Maui Drug Court, which provides to nonviolent drug users an alternative through intensive drug treatment.

Both Arnett and Tengan said they have not seen Finberg's mail-out, but agreed with English that the issues of the new law are far more complex than presented in the campaign material.

"I wouldn't like to say 'get of jail free,' " Tengan said. "We know there have been lives that have been changed with drug treatment. You have to give it a chance."

Tengan also said judges have tended to treat the law as providing probation with no jail time, although judges have the discretion to order a defendant to spend up to a year in jail while on probation and undergoing drug treatment.

Arnett went further, calling the mail-out misleading because portions of House Bill 2003 added years to prison sentences for drug dealers and drug manufacturers.

One apparent misunderstanding of the law involves the conditions allowed when a criminal defendant is placed on probation. Probation is an alternative to being sentenced to prison – which involves terms of five years to life – but judges may order an individual to spend up to a year in jail as a condition of probation.

Arnett and Tengan also emphasized that the new law grants judges discretion in sentencing and does not require them to give probation and treatment to nonviolent drug users in every case.

Tengan said the law requires a judge to determine the defendants are nonviolent after reviewing their criminal histories, and the defendants have been assessed and accepted into a certified drug treatment program.

Mayor Alan Arakawa's executive assistant, Don Couch, a Republican challenger to Sen. Roz Baker in the 5th Senate District covering South and West Maui, acknowledged he's been using the "get out of jail free" phrase to tell voters about Baker's yes vote on House Bill 2003.

But Couch said he has no intention of distributing the same kind of mail-out as Finberg.

Like English, Baker charged that the "get-out-of-jail-free card" phrase is a mischaracterization of the Legislature's actions and is a sign of negative campaigning by Republicans.

Baker said she believes Republicans are turning issues like House Bill 2003 into "templates" in legislative races around the state. She said she's seen the same kind of mail-out in another legislative race on Kauai.

"To say we're soft on crime is crazy," Baker said. "It's a total distortion of what the Legislature did."

Republican Party Chairman Brennon Morioka said his organization neither orchestrated any templates nor directed any candidates to publish mail-outs similar to the one used in Finberg's campaign.

However, Morioka acknowledged that Republicans across the state share the belief that giving repeat drug offenders a chance at probation and treatment is not appropriate.

"To us that's being extremely soft on crime," Morioka said. "We want them off our streets and away from our children."

He also took credit for coining the phrase "get out of jail free" and claimed that even judges were using the same reference to the legislation.

Morioka said he believes drug users should be given treatment. "But shouldn't that treatment occur in a more secure environment?" he asked.

Meanwhile, Finberg said he does not understand English's accusation of negative campaigning. He described negative campaigning as the use of deliberate, false statements; character assassination; or outright charges against a candidate's family.

"I certainly have not done that in this case," Finberg said.

He said he published Bacon's letter because he agreed with her stance and wanted to show voters the differences between him and English.

Arnett said Finberg is wrong in his assertion that the Office of the Public Defender testified against House Bill 2003. Arnett said she testified against the bill's segments that affected the technical structure of Hawaii's penal code, but her office supported other parts, such as repeat drug users possibly getting probation and treatment.

English said Finberg's mail-out "plays on fear and misinformation."

He said he will not resort to negative campaign tactics and believes voters will be able to judge him on his record and not rely on a campaign mail-out like the one Finberg sent.

"I give the electorate much more credit to see right through it," English said.

Copyright © 2003 — The Maui News

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