Family Court Monitoring Project
Our data base includes information on 953 cases and counts against 787 individuals. Some defendants were charged with more than one count or were charged under more than one statute. Several defendants have more than one case against them. During the study period, 55.7% of the individuals appeared once in court; 28% appeared twice; 9.3% appeared three times and 6.5% appeared from four to nine times in court. For the study, only the result of the final court appearance was included in the data base.
In this report, perpetrators are referred to using male pronouns because most of defendants in our study are male. National statistics indicate that 95% of all perpetrators of partner abuse are male.
Our data are presented in two sections: (1) Proceedings, which include Arraignment and Pleas, Calendar Calls, Jury Trials, Bench Trials and other Motions; and (2) Post-Sentence Hearings for Proof of Compliance and Motions to Revoke Probation or to Resentence. Each section includes a description of the related court processes.
PROCEEDINGS (Figure 1)
When someone is arrested for an assault under HRS Section 709-906, bail is usually set at $350 for a first offense. If the suspect cannot pay the bail amount, he stays in jail until the next court day, when he appears at an Arraignment and Plea (A & P) hearing. At this hearing the suspect is given the chance to hear the charges read against him and the opportunity to make a plea of guilty, not guilty or no contest. No contest means the defendant does not contest the charge against him as read, but does not acknowledge guilt.
The accused can also enter into a plea bargain. A plea bargain or plea agreement is made when the defendant's attorney (often a Public Defender) and the Prosecuting Attorney can agree on terms. A plea agreement often results in a reduction of the charge to a lesser crime or a dismissal of one or more counts in exchange for a plea of no contest or guilty. During the study period, most defendants made plea agreements, the majority pleading to a lesser charge. Judges are not bound by plea agreements and have the discretion to accept or reject them.
If a defendant pleads not guilty at the A & P, he is then scheduled for a trial, either before a jury or before a judge. A trial without a jury is called a bench trial. Twelve jury trials were observed during the study period: five defendants were found guilty and seven were found not guilty. At the one bench trial in the study, the judge found the defendant guilty.
Defendants appear in court at least once more prior to trial. The Calendar Call, usually on Mondays, is the pre-trial hearing for the cases set for trial that week. At Calendar Call the defendant can change his plea or make a plea agreement.
The data from the A&P and Calendar Call hearings were divided into four categories: continued, dismissed, pled as charged (PAC) and pled to a lesser charge (PLC). The PAC and PLC data include both guilty and no contest pleas. During the study period, 664 cases were disposed of and 119 cases were continued for further hearing.
CONTINUED CASES (Figure 2)
Of the 119 cases involving 93 individuals that were continued, 25 individuals in 31 cases pled not guilty at the next hearing and 50 cases involving 40 individuals were further continued because the defendant did not appear in court. Two cases were continued because the complaining witness did not appear. Eight cases were continued for other reasons. Eleven were set for trial.
DISMISSED CASES (Figure 3)
A case can be dismissed at anytime during the process. During the study period, 292 adjudicated cases were dismissed. Of these 292 cases, 225.(77.3%) were dismissed because the complaining witness was not present in court. All requests for a continuance by the prosecution were denied. Prosecutors requested seven dismissals: five because the witness recanted the allegations and two because of insufficient evidence.
There were 10 dismissals under Rule 48 of the Hawaii Rules of Penal Procedure, which requires that a defendant be tried within six months of an arrest or charge. Thirty-five were dismissed in exchange for a plea on another case or count. Ten were dismissed for other reason and there was no reason recorded for dismissal in 12 of the cases.
The dismissed cases and counts involved 255 individuals. At least 25% of them had at least one prior arrest under HRS Section 709-906. This number is probably low, since observers were unable to record prior criminal record information for all defendants.
Sentenced cases involve those defendants who pled as charged, pled to a lesser charge, were sentenced at a hearing, or were found guilty at trial. Concurrent sentences were given to defendants in 100% of the caps that included multiple cases or counts. For example, one defendant was sentenced to 180 days for each of four counts under Section 709-906, the sentences to be served concurrently. The judge suspended 170 of those days. As the defendant had already spent four days in jail, he served just six more days on four separate, Section 709906 charges none of which was a first offense under the statute. In another case, the defendant was sentenced to a year in jail on a single Section 709-906 charge, with credit for time served. The sentence was to be served concurrently with the one-year sentence he is now serving for an unrelated felony.
PLED AS CHARGED GUILTY OR NO CONTEST (Figure 4)
In 155 cases involving 135 individuals, 10% of the defendants pled guilty as charged and 90% pled no contest as charged. Pleading guilty or no contest means that the accused offers no challenge to the factual basis for the charge. Seventy-seven defendants received the minimum two day jail sentence required for a first time conviction under HRS 709-906. In 87 cases (65%) the defendant was given credit for time served. The time served was equal to or greater than the time sentenced in 53% of the cases.
Other components of the sentences given included one-year probation, substance abuse testing, and treatment if the assessment requires treatment, and mental health assessments. In some cases, defendants were ordered to complete drug and alcohol rehabilitation programs. A majority of the sentenced defendants (109), were required to attend domestic violence control counseling or anger management classes. Orders to attend domestic violence control counseling and anger management classes require the defendant to attend the program until clinically discharged by the agency. Other orders required contributions of $25 to a counseling agency, a fine of $250, community service, and a written apology to the victim.
PLED TO A LESSER CHARGE GUILTY OR NO CONTEST (Figure 5)
In 199 of the observed cases (involving 194 individuals) in which a sentence was handed down, the defendant pled to a lesser charge. This means pleading to a crime with a lesser penalty than HRS Section 709-906. Such a defendant's record would likely show either a conviction for assault in the 3rd degree (HRS Section 707-712), a misdemeanor, or for harassment (HRS Section 711-1106), a petty misdemeanor. The criminal history of these defendants will contain no record of any violation of HRS Section 709-906. Therefore, if such a person is arrested again for domestic violence within one year and convicted, he will not receive the mandatory minimum of 30 days for a second conviction under HRS Section 709-906. Instead, he could be sentenced to the mandatory minimum of 48 hours jail time for a first-time conviction under the section.
In 174 of the 199 cases defendants pled to assault in the third degree and 23 pled to harassment. Two pled to mutual affray. Although jail time is not required under any of these lesser charges, jail sentences were given in 12 cases to 11 individuals. Jail terms ranged from one to fourteen days. All of these defendants were given credit for time served and no sentence was longer than the time already served.
In 106 cases, defendants were allowed to enter deferred pleas as provided for under HRS Chapter 853. These are referred to as deferred acceptance of guilty or deferred acceptance of no contest pleas (DAG and DANC). Under the deferred plea statute, a judge can defer further action on a case, for a period not to exceed the maximum sentence for the crime, and subject to certain terms and conditions as the judge determines are suitable. If the defendant complies with the conditions imposed by the judge, the charges against him will be dropped at the end of the period. Conditions of these pleas included probation from three months to one year (193 individuals); domestic violence control counseling or anger management classes (164 or 82%); substance abuse testing (42 or 21 %); and 76 other orders, including written apologies to victims (15) and fines ranging from $25 to $350. Of the 106 defendants who were granted DAGs or DANCs, 3 individuals had prior Section 709-906 arrests in their criminal records. Information was not available as to whether the suspects had been convicted as a result of a previous arrest.
Proof of Compliance Hearings are for defendants who have been convicted under HRS Section 709-906. These defendants must return to court for a determination as to whether they have complied with the orders included in their sentences. In general, they must prove that they have complied with court orders by completing, for example, substance abuse testing and treatment, domestic violence control counseling, or anger management classes. Satisfaction of probation requires no arrests and no criminal acts including violation of a restraining order or weapons possession during the term of probation. Motions to revoke probation or to resentence are initiated by the Prosecutor's Office upon notification that the defendant has broken his probation through non-compliance, arrest, or commission of another crime.
We observed 72 hearings for Proof of Compliance involving 64 individuals. Twenty-eight individuals were found to be in compliance with the court's orders. The probation of 15 individuals in 17 cases was revoked. Twenty-five cases involving 22 individuals were continued because the defendant failed to appear in court. Nine defendants in Proof of Compliance hearings had new HRS Section 709-906 charges brought against them during this study period.
We observed 108 hearings on Motions to Revoke Probation or Resentence involving 83 individuals. Information was not always available about how defendants had violated the orders of the court. The probation of 69 individuals was revoked. Thirty-seven of the 108 hearings were on motions to set aside a deferred plea, of which 36 motions were granted. In the remaining case, the defendant failed to appear in court, was shown not to be in compliance with the DAG conditions imposed by the judge, and the case was dismissed without prejudice.
The majority of individuals involved in post-sentence hearings received additional or extended probation. Twelve defendants were sentenced to jail time, ranging from 2 days to one year. All the sentences were to be served concurrently with any existing sentence or for the duration of any existing sentence, and included credit for time served. Five defendants whose probation was revoked received no additional probation or re-referrals to counseling. Defendants in 73 cases were sentenced to further terms of probation ranging from 6 months to 1 year. Sixteen of the 73 were re-referred for substance abuse testing; 60 were re-referred to domestic violence control counseling.
THE DEFENDANT'S RECORD
During our study most judges did ask, before sentencing, for the defendant's prior record. Where that was available we added the data to our study. We observed, however, that the Prosecutor's Office often had incomplete information about dates, complaining witnesses, and outcomes. In 49 out of 130 cases where the defendant was convicted during our study, prior record information was not available.
Twenty-five of the 105 individuals whose prior arrest and conviction records were read out in court had no prior Section 709-906 record. Six of the remaining 80 individuals, or about 7%, had other prior arrests, usually traffic citations.
The remaining 74 individuals (93%), had prior arrests and convictions for crimes ranging from disorderly conduct to numerous HRS Section 709-906 and restraining order violations. In our data base there is one defendant who has been arrested 41 times for HRS Section 709-906 and restraining order violations, with three convictions. Few defendants have only one prior arrest or conviction. Most show two to eight arrests under HRS Section 709-906 or for other assaultive crimes.
HRS Section 709-906 is designed for early intervention. It addresses less serious incidents of abuse and is not meant for felony assaults. It is the legislature's message to the community that "just a slap" or "just a shove" or small cuts and bruises are not acceptable. The statute is meant to break the cycle early, before the abuse results in felony-level harm. Sentences under HRS Section 709-906 increase in severity with multiple convictions. Therefore, in sentencing defendants for this misdemeanor domestic abuse, the court needs an accurate criminal record.
Defendants who plead no contest to assault in the third degree do not dispute the allegations of abuse in making their pleas. In order to avoid trial or the possibility of jail if convicted, the defendants agree to accept a lesser charge based on the same allegations that led to a 709-906 charge. Our observers recorded the following incidents that defendants stipulated to in pleading to a lesser charge:
- Defendant said victim started it by embarrassing him in the market, so he slugged her. Defendant admitted causing a two-inch superficial injury with a knife.
- Defendant drunk, argued with victim, slashed her on the face with knife, kicked her.
Victim told police that defendant had abused. her many times before but she had never reported it to police.
- Defendant didn't want his wife to go out, so he choked her, threw her to the floor, dragged her to the bathtub and ran steaming hot water on her.
- Defendant driving a van, victim was in front of the van trying to get out of the way. Defendant gunned the engine and tried to hit her. She had to jump on top of the van to avoid being hit.
- Defendant ran after victim with scissors, trying to cut her hair. Victim sustained cuts to her fingers trying to protect her hair.
- Defendant sprayed mace in victim's face while victim was riding by on a bicycle.
- Defendant struck victim on head four or five times and pushed her to the floor. Victim was seven months pregnant.