Honolulu’s Prosecutor Race Could Flip Hawaii’s Punitive Culture

Running in one of Hawaii’s two open elections for prosecutor, a public defender wants the state to take a progressive turn.

Daniel Nichanian   |    July 24, 2020

Jacquie Esser

This article originally appeared on The Appeal, which hosted The Political Report project.

Running in one of Hawaii’s two open elections for prosecutor, a public defender wants the Honolulu prosecutor’s office—and the state—to take a drastically progressive turn.

In Hawaii’s two most populous counties, which together account for more than 70 percent of the state’s population, the incumbent prosecutors are not seeking re-election this year. In light of their history of derailing criminal justice reform, this has opened the door to a major upheaval in the state’s criminal justice politics.

The Aug. 8 elections “provide an opportunity to turn things around” in Hawaii’s punitive culture  if the new prosecutors “support smart justice legislation instead of blocking it,” said Monica Espitia, director of the ACLU of Hawaii’s Smart Justice Campaign. She added that most current prosecutors have been “extremely obstructive” toward reforms debated in the legislature.

The campaign in Hawai’i County—the “Big Island”—has ended up largely tame, with only narrow calls for change from candidates. But in the far more populous Honolulu County, where incumbent Keith Kaneshiro has gone on leave because of a corruption scandal, the candidates differ sharply on whether they would change this punitive culture—and one candidate has called for the state to take a thorough turn against policies that fuel mass incarceration.

“How I would view my responsibility as a prosecutor is to use my power, use my voice, to shift the conversation and get people to really start thinking about how what we’re doing is not working,” Jacquie Esser, a public defender and one of seven contenders vying to replace Kaneshiro, told The Appeal: Political Report. “We’re wasting millions of dollars, we’re destroying lives for generations.”

Esser hopes Honolulu will join the nationwide wave of counties that have been electing public defenders as decarceral prosecutors. She garnered endorsements from Chesa Boudin, a public defender who was elected district attorney in San Francisco last November, and whose platform she has echoed, and other prominent progressives like U.S. Senator Bernie Sanders of Vermont.

Esser faults the state’s prosecutors for using their clout to push a “tough on crime” approach, and she has already intervened in past legislative debates, even going up against Kaneshiro, the prosecutor she is seeking to replace. In 2019, she submitted testimony in favor of a bill that would have helped release terminally ill people from prison. Kaneshiro testified against the bill, which was later vetoed by David Ige, the Democratic governor who has also sunk other reforms. 

Ken Lawson, co-director of the Hawai’i Innocence Project and professor of law at the University of Hawai’i, says it has been tough to advance reform in this blue state because many politicians spread fear against it. Lawson, who has endorsed Esser in his personal capacity, believes the election of a prosecutor committed to upending the system could be a game changer.

“It’s not just the election that’s at play here, it’s the whole justice reform movement,” he said. 

Esser told the Political Report that she plans to champion many other progressive bills if elected. These included legislation that would repeal mandatory minimum statutes, end the use of cash bail, and abolish felony disenfranchisement, which would enable incarcerated people to vote from prison. (Such a bill advanced past a legislative committee last year but then stalled.) 

Esser’s opponents have either outlined a more piecemeal approach to reform, or else are running on “tough on crime” warnings about the dire consequences that would follow decarceration.

If no one reaches 50 percent on Aug. 8, as seems likely, the top two candidates will move on to a runoff in November. The same rule applies in Hawai’i County, where three candidates are vying to replace the departing Mitch Roth.

In Honolulu’s election, polar opposites

A year ago, the governor vetoed the “compassionate release” bill that would have helped free terminally ill prisoners and killed legislation that would have restricted the state’s embattled civil asset forfeiture programs. Criminal justice reform advocates blamed law enforcement groups for these bills’ failures. 

One prosecutor, Kaua’i County’s Justin Kollar, told the Political Report at the time that he backed both bills; in doing so, he broke with his colleagues on the far more populous islands.

Kollar now says he is hopeful that he will gain reform-minded allies out of Honolulu County and Hawai’i County’s elections, and that he will be less isolated within the state in defending criminal justice reform. (Kollar himself is up for re-election this year, but he is unopposed.)

“Having colleagues in the other counties who align with [a progressive] platform certainly makes it more likely that we can succeed in advancing that vision with our local and state legislators,” he told the Political Report. 

In November, though, Kollar endorsed Megan Kau in Honolulu’s open race. Out of Honolulu’s seven candidates, Kau is one of two, alongside acting prosecutor Dwight Nadamoto, who has staked public positions that are consistently hostile to decarceration and criminal justice reform. 

Kau rejects the premise that Hawaii incarcerates too many people, and does not think there are issues of bias or systemic racism in its criminal legal system. She defends the use of cash bail, denying that it disadvantages poor defendants more than wealthy ones despite evidence to the contrary; in an exchange with the Political Report, she raised fear that people released pretrial would “commit another crime while out in the community.” And in an ACLU questionnaire, she repeatedly makes the case for a carceral approach to drug offenses. 

Asked about his endorsement of Kau, Kollar said he issued it “before Jacquie [Esser] entered the race.” He added that he is “not currently publicly supporting any candidate in the primary,” and that his views “align more closely” with Esser’s.

Esser’s platform is, in many ways, the polar opposite of Kau’s. Besides calling for legislative change, she says she would overhaul Honolulu’s prosecutorial policies so as to approximate the changes she wants lawmakers to mandate.

Esser told the Political Report she opposes the use of cash bail. “I would never seek money as a condition of pretrial detention,” she said.

She also said she would outright decline to prosecute cases of drug possession, and behaviors that stem from poverty or mental health issues; getting the criminal legal system involved in these matters does not work, she stressed, because they’re about “public health.” She also would not prosecute sex work. “I do not believe that the government should be in any one bedroom,” she said, adding that decriminalization would free up resources to “focus on sex trafficking.”

Esser, finally, vowed to “not charge people under laws that call for mandatory or enhanced sentencing”; she would not charge someone as a “repeat offender,” for instance. Such charges, she said, ignore rehabilitative goals and are tools for prosecutors to unduly tie judges’ hands. She also told the Political Report she would not charge minors 16 or under as adult.

Esser’s proposals echo those of Boudin, who won in San Francisco on decriminalizing sex work and who has announced policies to circumvent sentencing enhancements and not seek cash bail.

She is also the only Honolulu candidate to express unqualified support for the state Supreme Court’s plan in April to release people from prisons and jails to prevent their exposure to COVID-19. 

These crowded elections also feature a lot of silence and vagueness

The contrast between Esser and Kau is clear enough. But Honolulu’s race is startlingly crowded by the standards of prosecutorial elections, making the ideological fault lines more complex.

Only one other candidate responded to the Political Report’s policy questions: Tae Kim, an attorney, expressed support for many but not all of the statewide reforms he was asked about, including the 2019 “compassionate release” bill and an end to cash bail. He also said he did not favor restricting civil asset forfeiture to require a conviction, and he took issue with the scope of the Supreme Court’s release plan.

Four other candidates did not respond to repeated messages. One, Anosh Yaqoob, has no campaign website and has also ignored other media or nonprofit questionnaires. A vague picture of the politics of the other three, at least, emerge in these other venues.

Steve Alm, a former judge and an early frontrunner, is broadly supportive of reform goals, at least when it comes to lower-level offenses. He is more vague than some others when it comes to his policies, tending to focus his answers on improving professional ethics and training. He has emphasized his role in establishing HOPE, a supervision program meant to help people not violate probation conditions, and he is not putting forth ideas to shrink the system.

RJ Brown, an attorney, wrote in the ACLU’s questionnaire that Honolulu incarcerates too many people, at least for lower-level offenses. But he took issue when asked whether there are implicit biases in the criminal legal system. “Insofar as I suspect you view these biases as inherently destructive, and emblematic of a broken system, I don’t maintain the same perspective,” he said.

Nadamoto, who has been the acting prosecutor since the incumbent went on leave, embraces the label “tough on crime.” He recounted to the Honolulu Civil Beat how, in the spring, he “led the fight against the premature release of lawfully convicted felons, misdemeanants and pre-trial detainees” he blames the state for turning “inmates … loose on the street” instead. 

State advocates like Espitia of the ACLU strongly take issue with Nadomoto’s “scare tactics.” “When the COVID-19 pandemic hit, the public defenders and the Supreme Court correctly went to work on reducing the incarceration numbers based on science and CDC guidelines,” Espitia said. “The virus spread throughout facilities on the mainland and real lives were on the line.”

The three candidates running in Hawai’i County have all expressed strong reservations about the Supreme Court’s release plan, just one of the signs that this election lacks a progressive option. 

And none answered repeated emails and messages about their views on criminal justice reform.

Here, too, clues to their political orientations emerge in other venues. Christopher Bridges, a former prosecutor, says he wants to change policies toward lower-level offenses (including not seeking cash bail) but he frames this as a way to ensure “there is room” to incarcerate “violent and repeat offenders”—a far cry from Esser’s case against ballooning sentencing enhancements. Kelden Waltjen, currently a deputy prosecutor, even makes “stiffer” sentences for “violent, and repeat offenders” one of his “priorities”; elsewhere, he rejects the notion that his county is overly reliant on incarceration. Finally, Jared Auna, another former prosecutor, suggests in a Civil Beat Q&A that if the state had more jail capacity, it would not have needed to release people during the COVID-19 pandemic, a striking answer in an interview that makes no mention of bail.

“All of those things are possible”

Honolulu’s election, at least, is unfolding against the backdrop of the major corruption scandal that engulfed the prosecutor’s office, leading Kaneshiro to step down. The scandal also involves Honolulu’s former police chief, exposing the broader law enforcement ecosystem. 

Lawson of the Innocence Project thinks these revelations have made 2020 a unique moment in state politics because their sheer scope has “awoken” people. That was compounded, he said, by the “massive protests” this spring , in the wake of George Floyd’s murder in Minneapolis. Hawaii’s criminal legal system’s systemic problems already were under the microscope. Its greatly disparate harm against Native Hawaiians has at least been a topic of contention in this year’s elections, for instance.

These events “have allowed people to ask what other alternatives are out there, if the way we have been doing it is wrong,” he said. “What does bail reform mean, how do we decriminalize drug addiction? All of those things are possible now because people’s minds are open.”