HOUSE OF REPRESENTATIVES	H.B. NO.	2017
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO pretrial release.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that the criminal justice system should advance fairness, justice and equity. The current use of cash bail is widely understood to disadvantage poor people who are unable to secure their liberty while awaiting trial. The legislature also recognizes that in Hawaii, the consequences of pretrial detention fall disproportionately on Native Hawaiians, Pacific Islanders, and Black people, who are more likely to be arrested, detained, and unable to afford the funds required for bail.

The legislature finds that the justice system should be consistent with the equal protection and due process rights enshrined in our federal and state constitutions, as well as the fundamental concept of the presumption of innocence until guilt is proven. Accordingly, courts should presume that criminal defendants who have not yet been found guilty of a crime should be given unconditional release. If the State objects to the unconditional of any criminal defendant, the State should be required to prove, by clear and convincing evidence, that there is no set of non-financial conditions that would allow for release and that unconditional release should be denied in order to ensure the criminal defendant's return to court and the protection of public safety. The legislature notes that this principal aligns with the pretrial release standards of the American Bar Association, the National Association of Pretrial Services Agencies, and Uniform Pretrial Release and Detention Act (October 13, 2020). The legislature also notes that the federal system and other jurisdictions, including New Jersey; Minnesota; Kentucky; Washington, D.C.; and Illinois; have successfully implemented similar pretrial reforms. These jurisdictions, along with pilot evaluation projects in Colorado and Kentucky, have also shown that non-financial methods, including texting reminders for court dates, release on recognizance, and unsecured bonds are more effective at ensuring that defendants appear in court.

The legislature also finds that pretrial incarceration is the primary driver of severe overcrowding in the State's jails, which are exceeding design and operational capacity. This results in unnecessary, costly, and dangerous pretrial conditions. It currently costs the state $219 per day, or $79,935.00 per year, to incarcerate an adult. Cost savings from a reduced pretrial population should be reinvested into strategies that have proven to decrease crime and reduce recidivism.

The legislature believes that, with the cooperation and support of all branches of government and criminal legal system stakeholders, including the criminal justice research institute and the Hawaii correctional systems oversight Commission, reform will help the State shift away from a pretrial system that detains a significant number of persons based on monetary bail to a system that focuses on alternatives and evidence-based decisions on individualized risk to public safety. Further, reform will ensure fairness in the criminal legal pretrial system and reduce severe overcrowding in the State's jails.

Accordingly, the purpose of this Act is to improve the State's system of pretrial justice by balancing the public’s need for safety with an individual's constitutional rights.

SECTION 2. Section 804-3, Hawaii Revised Statutes, is amended to read as follows:

"§804-3 [Bailable] Pretrial release; bailable offenses. (a) For purposes of this section, "serious crime" means murder or attempted murder in the first degree, murder or attempted murder in the second degree, or a class A or B felony, except forgery in the first degree and failing to render aid under section 291C-12, and "bail" includes release on one's own recognizance, supervised release, [and] conditional release[.], unsecured bail, and unsecured financial bond.

(b) [Any person charged with a criminal offense shall be bailable by sufficient sureties; provided that bail] Bail may be denied to any person charged with a criminal offense where the charge is for a serious crime, and:

(1) There is a serious risk that the person will [flee;] abscond;

(2) There is a serious risk that the person will obstruct or attempt to obstruct justice, or therefore, injure, or intimidate, or attempt to thereafter, injure, or intimidate, a prospective witness or juror[;] with the purpose of obstructing or attempting to obstruct justice;

(3) There is a serious risk that the person poses a significant danger to [any] a specific person or reasonably identifiable person or persons based on an articulable risk to a specific person or the community; [or] and

(4) [There is a serious risk that the person will engage in illegal activity.] The risks cannot be mitigated by any set of release conditions.

(c) [Under subsection (b)(1)] There shall be a rebuttable presumption [arises that there is a serious risk] that the person [will flee or will not appear as directed by the court where the person] is [charged with a criminal offense punishable by imprisonment for life without possibility of parole. For purposes of subsection (b)(3) and (4) a rebuttable presumption arises that the person poses a serious danger to any person or community or will engage in illegal activity where the court determines that:

(1) The defendant has been previously convicted of a serious crime involving violence against a person within the ten-year period preceding the date of the charge against the defendant;

(2) The defendant is already on bail on a felony charge involving violence against a person; or

(3) The defendant is on probation or parole for a serious crime involving violence to a person.

(d)] entitled to unconditional release, also known as release on recognizance, and that that the person will appear in court when required. Before a court grants unconditional release, a hearing shall be held within forty hours after the person's arrest. The burden of proof shall be upon the State to establish, by clear and convincing evidence, that unconditional release under this subsection is inappropriate based on the criteria in subsection (b).

(d) If the court finds than an unconditional release will not reduce the risk of absconding, and if bail is recommended by the State, the court shall first consider release with conditions to bail that would allow release while ensuring the person's return to court and the protection of a specific or reasonably identifiable person. These conditions shall restrict the person's liberty only to the extent necessary.

(e) If the court finds that the release described in subsection (d) will not reasonably assure the appearance of the person when required, the person shall be bailable by posting of unsecured bond or sufficient sureties, except as provided in subsection (f).

(f) If, after a hearing the court finds that no condition or combination of conditions will reasonably assure the appearance of the person when required or the safety of any [other] person or [community,] persons, bail may be denied[.]; provided that the court enters on the record its findings with respect to the detention decision. The burden of proof shall be upon the State to establish, by clear and convincing evidence, that there is no condition or combination of conditions that will reasonably assure the appearance of the person when required or the safety of any other person or persons.

(g) Any bail amount set, whether secured or unsecured, shall be in an amount that the person is able to afford based on person's affidavit or testimony at the release hearing, subject to any rebuttal evidence from the prosecution. In the setting of bail, the following shall apply:

(1) The court shall exclude from consideration any income derived from public benefits; including supplemental security income, social security disability insurance, and temporary assistance for needy families; and any income below the federal poverty level;

(2) If the person has no income other than public benefits or is a member of a household having a household income below the federal poverty level, the court shall presume that the person is unable to pay any bail amount; and

(3) If the person's household income, exclusive of any income derived from public benefits, is above the federal poverty level, the court shall consider what the individual could reasonably pay within forty hours of arrest, subject to the exclusions in paragraph (1)."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2022.

INTRODUCED BY:

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Report Title:

Crime; Unconditional Release; Bail

Description:

Establishes a presumption that a person charged with a crime is entitled to unconditional release unless proven otherwise. Requires the consideration of nonfinancial conditions of release before bail is ordered.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.