Hawaii would be the latest state to overhaul its bail system to make it fairer for the poor if bills before the state Legislature become law.
Lawmakers are considering allowing defendants accused of non-violent offenses to be released on bail without paying cash up front. Instead, defendants could sign a promissory note and commit to showing up for trial. Defendants would be liable for the bail payment if they don’t show.
Critics say the current system penalizes the poor by locking up those who can’t afford to pay, even giving the innocent incentive to plead guilty just to get out. People can lose their jobs, housing and custody of children because they are unable to work, pay rent and look after their families while detained.
“This could be one of the most significant criminal justice reforms we’ve seen in a generation,” said state Rep. Chris Lee, the chairman of the House Judiciary Committee. The reforms have “been proven in other places to reduce unjust treatment and reduce cost to taxpayers and ultimately end up with better results and safer society overall,” he said.
Reforming pretrial detention has been on state agendas across the country in recent years. New Jersey and Washington, D.C., largely no longer use cash bail, but laws there still allow it. California lawmakers eliminated cash bail, but voters there will have a chance to approve or reject the measure in a referendum next year.
Two similar versions of reform are currently making their way through the Hawaii House and Senate . They would each also establish a program to assess the chances defendants would commit crimes when released before trial. Officials would use this analysis to help them determine conditions for release.
Overhauling bail was among the recommendations of a 29-member task force, which met 12 times from 2017 to 2018 to discuss pretrial detention. The panel included lawmakers, court administrators, state agency department heads, police chiefs, prosecutors, public defenders and criminal defense attorneys.
Supporters testified to lawmakers that the reforms will relieve jail overcrowding, save taxpayer dollars and alleviate the unfair burden of cash bail on indigent defendants.
Several cited last month’s riot at Maui’s jail to underscore the urgency of acting. The jail was designed to hold 301 inmates but had 410 at the time of the disturbance. State corrections officials say inmates were upset with extreme overcrowding.
Retailers testified against the reforms, saying suspects would be released to commit more crimes.
“So basically the offender is caught and released and within hours can be back in our stores stealing,” wrote Tina Yamaki, the president of the Retail Merchants of Hawaii, a trade organization. She called the proposals “a big win” for offenders, especially “career criminals,” and a loss for crime victims.
The Crime Victim Compensation Commission said it supported the intent of the reform, but was concerned about a provision that would allow pretrial defendants to cross-examine crime victims during the bail process.
The American Civil Liberties Union of Hawaii supports the effort, but Policy Director Mandy Fernandes objected to wording in the House bill that requires defendants to petition a judge for non-cash bail. She said judges should have the discretion to release defendants without cash bail even if a defendant doesn’t request it. Lee said he would support such a bill amendment, noting that sometimes defendants don’t hear about the full range of options from their attorneys.
If the two chambers pass their respective bills, senators and representatives will meet in conference committee to go over their differences toward the end of the month.