Hawaii legislative bill removing cash bail for nonviolent crimes draws opposition

Hawaii law enforcement officials are urging Gov. David Ige to veto a bill passed Tuesday by the state Legislature that eliminates the requirement that defendants accused of nonviolent crimes post cash bail, allowing them to be released on their own recognizance to await their court dates.

House Bill 1567 would apply to those charged with traffic offenses, violations and a host of nonviolent Class C felonies, petty misdemeanors and misdemeanors.

However, the measure would not apply to defendants who are on parole or have already been to court and are awaiting trial or sentencing. It also would not extend to defendants with a history of skipping court dates in the previous 24 months or who have a prior conviction for a violent felony or misdemeanor in the previous eight years.

And HB 1567 gives defendants the option to participate in a bail report interview via videoconference.

In a news conference Thursday, Ige said his administration would go through the process of evaluating the bill and would make a decision on whether to sign or veto it within 45 days.

He noted that significant bail reform was enacted in 2019, referring to Act 179, and that some of the pretrial detainees who were released during the COVID-19 pandemic to reduce jail populations committed new crimes, raising the question of whether a “blanket” policy for releasing suspects without posting bail would protect the community.

“I just want to make certain we are balancing the safety of the community against fair treatment (of pretrial detainees),” said Ige.

HB 1567 passed the state Senate on Tuesday on an 18-7 vote despite opposition from the state Department of the Attorney General, the State of Hawaii Organization of Police Officers, the Retail Merchants of Hawaii and the prosecuting attorneys for Hawaii, Maui and Honolulu counties.

Prosecutors cited examples of the nonviolent crimes that would qualify defendants for release without bail, including vehicle thefts and break-ins, impersonating a law enforcement officer, identify theft, burglary of a business and thefts up to a certain amount. Also covered is open lewdness, violating an injunction against harassment, harassment by stalking, criminal trespassing, promoting gambling and certain firearm offenses.

Proponents of HB 1567 argued that requiring cash bail of those accused of nonviolent crimes unfairly discriminates against those of limited means and leads to overcrowding of jails. They say the bail reform enacted by state lawmakers in 2019 is insufficient.

Kat Brady, coordinator of the Community Alliance on Prisons, told state lawmakers that a recent California Supreme Court decision held that detaining a person on pretrial status solely because they cannot afford bail violates due process and equal protection.

Brady’s organization asked service providers who work with marginalized communities about their clients’ experiences when arrested.

“We were appalled to learn that Hawaii incarcerates people who could not afford to pay $10 to $50 to make bail. The community is then tapped to pay $219 a day to incarcerate some of the most vulnerable people in our communities. Criminalizing poverty has been shown to be one of the drivers of mass incarceration,” wrote Brady in testimony on HB 1567.

The Hawaii Correctional System Oversight Commission, created by Act 179, also testified in favor of the measure, saying it “ensures that bail for certain offenses, the rich and poor are treated equally.”

However, SHOPO President Robert Cavaco, a lieutenant with the Honolulu Police Department, told the Honolulu Star-Advertiser the bill will “allow criminals to victimize and re-victimize the people of Hawaii over and over again.”

“In most cases, the arrested suspect will be released before the arresting officer even finishes typing their arrest report,” he said. “When a crime victim cooperates with our investigation and we make an arrest, only to turn around and release a suspect within minutes, victims will lose faith in the system. They will feel violated and be less likely to cooperate in the future, which just leads to more crime,” said Cavaco.

In testimony submitted to lawmakers March 31, Retail Merchants of Hawaii President Tina Yamaki told legislators that property criminals who would benefit from HB 1567 know exactly how to exploit existing laws to dodge penalties. She called the measure “a big win for the offenders especially career criminals.”

“Many thieves know the exact value of what they are stealing and make sure that what they are taking is valued right under the minimum threshold,” she said. “Retailers have been facing an upward increase in theft — from designer clothing to handbags to sunglasses to electronics to Spam to cosmetics to liquor to tobacco to name a few.”

Honolulu Prosecuting Attorney Steve Alm told the Star-Advertiser that his office opposed the bill and supports the eventual elimination of the cash-bail system — but not before new procedures are in place to adequately protect the public and ensure defendants show up for their court dates.

Alm supports the allocation of more resources for the state Department of Public Safety’s Intake Services Center Division and the state Judiciary to help assess defendants’ risk to the community and to supervise them if released before trial. He said tools such as signature bonds, which don’t require a cash deposit or collateral, but serve as an oath to appear in court, can also be helpful to ensure defendants on supervised release show up as scheduled.

“Although the prosecution and defense may not always agree with judges’ rulings pertaining to bail, the Department (of the Prosecuting Attorney) does believe that a judge more appropriately evaluates all of the factors permitted by statute to make a case-by-case decision,” wrote Alm in testimony submitted March 31.

Hawaii County Prosecuting Attorney Kelden B.A. Waltjen told the Star-Advertiser that HB 1567 is “over broad” and that the Judiciary should retain the discretion to decide pretrial release status on an individual basis.

“Given the expansiveness of the proposed measure, in consideration of current crime trends, and the acknowledged limited resources and limitations of pretrial services and providers, we oppose the current draft of HB 1567 and ask that the governor veto this measure,” said Waltjen. “We believe that providing increased funding and staffing for pretrial, adult client and parole services and prioritizing the utilization of electronic monitoring and other forms of alternative forms of supervision will assist jail and prison overcrowding concerns.”

Maui County Prosecuting Attorney Andrew H. Martin told the Star-Advertiser that before Hawaii institutes bail reform that would take individualized offender assessments out of judges’ hands, the state needs more alternatives to incarceration that would connect low-level, nonviolent offenders with services and resources necessary to focus on their rehabilitation.

Those efforts are frustrated in neighbor island communities that lack the resources available on Oahu, according to Martin. On Maui, he said, only one facility offers inpatient substance abuse programs, and there is no long-term residential substance abuse program or any dual-diagnosis programs for those who suffer from substance abuse and mental health issues.

“We need a more holistic approach, and for the neighbor islands it will require additional resources and programming. Before we sign blanket, generalized release conditions into law, we should have those services and programs in place. That is what will put our community in the best position to enhance public safety, and reduce recidivism and inmate populations,” said Martin.

“We support bail reform, we just want a more thoughtful, robust and well-funded approach.”

The state Department of the Attorney General also opposed HB 1567 “because there has not been sufficient time to assess the impact of changes to Hawaii’s criminal pretrial system enacted in 2019 and determine next steps,” according to testimony submitted March 31 by Deputy Attorney General Lauren Nakamura.

Act 179, in part, created the Criminal Justice Research Institute, which is responsible for establishing and maintaining a centralized statewide criminal pretrial justice data reporting and collection system, and developing and tracking indicators that accurately reflect the effectiveness of Hawaii’s criminal pretrial system.

“At this point in time, there is no determination about what metric properly measures the success or failure of the prior changes. Additionally, the Department is concerned that the bill may not adequately address a number of important interests, including the need to secure the appearance of defendants and to protect the public,” wrote Nakamura.

Kauai Prosecuting Attorney Rebecca Like told the Star- Advertiser that she shares the concerns articulated by other state and county law enforcement agencies.

“However, even more than that, I do not want another jail or prison built in Hawaii. Ideally, I would like to see more transitional housing for inmates getting released into the community as well as more affordable and low-income housing,” said Like. “If individuals have a place to live, they are less inclined to commit the types of lower-level offenses outlined in HB 1567.”

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Star-Advertiser staff writer Dan Nakaso contributed to this report.