It doesn’t take much effort to recall the arrest of protesters on the Mauna Kea summit during the fall of 2015. Activists were demonstrating against the Thirty Meter Telescope (TMT), vowing to protect Hawaii’s sacred grounds. Police ultimately arrested 14 people; they were charged heavy bails before the incident went viral and the charges dropped.
Just approved by both the state Senate and House of Representatives, Senate Bill 895 will follow the national trend of trespass restrictions, giving authorities the right to arrest any second degree trespassers on all state land, regardless of whether the land is enclosed. The purpose of bill is to add the offense of criminal trespass as well as broaden existing trespass legislation to include all state lands, including in, on and under highways, punishable to the penal code. On May 4, the Legislature sent the bill to Governor David Ige; he has until June 26 to submit a notice of veto, and July 11 to sign or veto it.
Supporters–which included numerous state agencies–say the bill will curb vandalism and crime, particularly copper theft along highways. They say the bill will also fill gaps in current legislature that exclude unenclosed or unfenced areas owned and managed by the state.
In fact, the University of Hawaii–which supports the bill–claimed they’ve found drug paraphernalia and other debris left behind by presumed trespassers and the bill will better secure the school’s premises. UH testimony stated that current trespass laws are unclear whether they apply to unenclosed or unfenced areas, but SB 895 will make clear that all state land is restricted.
State Board of Agriculture Chairperson Scott Enright agreed. “The department [of Agriculture] needs the criminal statutes to allow immediate removal of offenders; otherwise, state lands become a venue for illegal activities.”
One agency, the Department of Taxation, even testified that the bill would help protect its own building. “The Department notes that the new offense of criminal trespass onto state land would apply to state buildings, including the building where the Department’s main office is located,” said Maria E. Zielinski, the department’s director. “In the past, the Department has experienced isolated incidents of vandalism to and trespass upon its facilities. The Department takes the security of its facilities and personnel very seriously and believes this measure will provide additional recourse should such incidents recur.”
But the bill met considerable dissent from civil rights organizations as well as the Community Alliance on Prisons.
One organization at the forefront of opposition is the American Civil Liberties Union of Hawaii (ACLU Hawaii). On multiple occasions, the organization sent one of their representatives to testify against the bill. ACLU Hawaii advocacy coordinator Mandy Finlay said the bill violates the Eighth Amendment, to be free from cruel and unusual punishment. In addition, her testimony said the bill “targets” protesters, such as those who demonstrated at Mauna Kea, by adding redundant penalties for remaining in/on state parks, lands and highways.
“Under my interpretation of the bill, this would cover land such as Mauna Kea,” Finlay said. “Clearly that was a situation where people were taken off of land they had a right to protest on. We don’t want those situations to occur.”
While the bill may affect where protesters express themselves and to what extent, the bill’s most fervent dissent comes from the bill’s potential effect on Hawaii’s homeless population. In fact, SB 895 was often referred to as an “anti-homeless” bill (supporting parties claim the bill does nothing to “abridge the constitutional rights” of homeless individuals and families).
Kat Brady, Coordinator of the Community Alliance on Prisons, is a defender of the homeless and imprisoned. Brady works to counter criminalization with what she calls “humanization” through engagement with LEAD, a pre-arrest diversion program designed to offer “non-coercive and non-punitive” approaches to illegal activities. And she says the bill could criminalize the status of being homeless.
Bill supporters disagreed. During legislative hearings, Scott Morishige, Governor Ige’s Coordinator on Homelessness, reminded opponents that provisions will be made to bring aid to the homeless community through homeless outreach program funding, in response to any negative effects of the bill’s passing. One of Morishige’s examples took place in Kakaako Makai from August 2015 to the present day. In that case, the state enforced trespassing in a public park but also provided outreach that assisted an estimated 300 homeless individuals in finding shelter.
Brady claims long-term improvements will only occur when the community looks at the big picture.
“Something is desperately wrong,” Brady said. “Until we look at the policies that have created these challenges [for those in poverty], then we’re not going to ever address it.”
According to Brady, SB 895 is one of those challenges. Brady said over half of Oahu Community Correctional Center is occupied with citizens who can’t afford to make bail. She and the Office of Hawaiian Affairs (OHA) agree that possible criminalization of the homeless community will affect many OHA beneficiaries and exacerbate the homelessness crisis facing the islands.
OHA representatives also testified that the bill could hurt Native Hawaiian culture. OHA and ACLU Hawaii highlighted the potential “chilling effect” the bill could have on Native Hawaiian traditions by discouraging legitimate exercises of natural and legal rights with the threat of legal sanction.
Morishige, the governor’s Coordinator on Homelessness, disagreed. “The intent of the bill is not to criminalize homelessness, but to address issues related to theft and vandalism on state lands, as well as issues related to public safety,” he said.
Still, Brady believes the government is losing sight of the overarching goal of caring for homeless people.
“We need to pay attention to the needs of our people,” she said. “We need to pay attention to our families who are on the streets. Those are the thoughts that keep me up at night.”
Click here to see the legislative history of SB 895.