HB1336

PART I

SECTION 1. The legislature finds that arrests are commonly made at the initiation of a criminal case, but sometimes occur needlessly when the issuance of a citation to appear in court would have sufficed. Arrests consume a significant portion of the limited resources of understaffed police departments, increase the number of people held in custody before trial, and contribute to overcrowding in correctional facilities. Given Hawaii's high cost of living and the significant percentage of families who live paycheck to paycheck, many arrestees cannot afford to post bail before trial.

The legislature also finds that arrests are highly disruptive to a person's life. Despite the fundamental principle of the presumption of innocence on which our justice system is built, arrests cause embarrassment and in some cases trauma when they occur in the presence of family members, neighbors, or coworkers or are publicized in news media. Further, an arrest can significantly jeopardize the arrestee's housing and employment and set into motion a chain of economic and logistical hardships for the arrestee's family, especially when the arrestee is the main source of household income and has multiple dependents.

The purpose of this part is to reduce the number of unnecessary arrests made in criminal cases, by requiring:

(1) Law enforcement officers to issue a citation in lieu of making an arrest, with certain exceptions; and

(2) The grant of a forty-eight hour grace period after a missed initial court appearance before the court may issue an arrest warrant.

SECTION 2. Chapter 805, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§805- Initial court appearance; failure to appear; grace period. A person who fails to appear in court for the initial appearance in a case shall automatically be granted a grace period of forty-eight hours before the court may issue an arrest warrant for the person's non-appearance. During the grace period, the person may voluntarily appear at court without the need to provide advance notice to the court. If the forty‑eight hour grace period is scheduled to expire on a Saturday, Sunday, or state holiday, the expiration shall be extended to the same time on the next business day."

SECTION 3. Chapter 806, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§806- Initial court appearance; failure to appear; grace period. A person who fails to appear in court for the initial appearance in a case shall automatically be granted a grace period of forty-eight hours before the court may issue an arrest warrant for the person's non-appearance. During the grace period, the person may voluntarily appear at court without the need to provide advance notice to the court. If the forty‑eight hour grace period is scheduled to expire on a Saturday, Sunday, or state holiday, the expiration shall be extended to the same time on the next business day."

SECTION 4. Section 803-6, Hawaii Revised Statutes, is amended as follows:

1. By amending its title to read:

"§803-6 Arrest, how made[.]; mandatory citation in lieu of arrest; failure to appear."

2. By amending subsection (b) to read:

"(b) In any case in which it is lawful for a [~~police~~] law enforcement officer to arrest a person without a warrant for a felony, misdemeanor, petty misdemeanor, or violation, the [~~police~~] officer [~~may, but need not,~~] shall issue a citation in lieu of [~~the requirements of~~] making an arrest under [[]subsection[]] (a), [~~if the police officer finds and is reasonably satisfied that the person:~~

~~(1)~~ ~~Will appear in court at the time designated;~~

~~(2)~~ ~~Has no outstanding arrest warrants which would justify the person's detention or give indication that the person might fail to appear in court; and~~

~~(3)~~ ~~That the offense is of such nature that there will be no further police contact on or about the date in question, or in the immediate future.~~] unless:

(1) The case involves any of the following offenses:

(A) A "serious crime" as defined in section 804-3(a);

(B) Abuse of a family or household member under section 709-906;

(C) Violation of a domestic abuse protective order issued pursuant to chapter 586, or of a temporary restraining order or injunction against harassment issued pursuant to section 604-10.5;

(D) Operating a vehicle under the influence of an intoxicant under section 291E-61, habitually operating a vehicle under the influence of an intoxicant under section 291E-61.5, or operating a vehicle after license and privilege have been suspended or revoked for operating a vehicle under the influence of an intoxicant under section 291E-62;

(E) An offense involving physical assault or sexual assault; or

(F) An offense for which the penalty requires a mandatory term of imprisonment;

(2) The person has a history of failing to appear in court;

(3) The person poses a significant danger to a specific or reasonably identifiable person or persons, based upon an articulable risk to a specific person or the community, as evidenced by the circumstances of the offense or by the person's record of prior convictions; or

(4) The prosecution has requested in writing that the person be arrested by a law enforcement officer."

SECTION 5. Section 805-5, Hawaii Revised Statutes, is amended to read as follows:

"§805-5 Warrant after summons issued. The district judge [~~may~~], for any cause which appears to the district judge to be sufficient, [~~at any time~~] after the issue of the summons, and by virtue of the complaint therein contained and recited, may issue the district judge's warrant for the immediate arrest, upon the charge, of the person so summoned[.]; provided that the warrant shall not be issued until forty-eight hours after the person's failure to appear in response to the summons."

PART II

SECTION 6. The legislature finds that the justice system should be truly reflective of the equal protection and due process rights enshrined in our federal and state constitutions and of the fundamental concept of presumption of innocence until guilt is proven. Accordingly, courts should presume that defendants in criminal cases who have not yet been found guilty of a crime should be presumed to be entitled to release, unless the prosecution can prove that release would be inappropriate for a particular defendant because there is no condition or combination of conditions of release that will assure the person's return to court when required or the safety of other persons.

The legislature also finds that pretrial incarceration is the primary driver of severe overcrowding in community correctional centers, which becomes a health and safety issue for defendants in custody as well as staff who work in correctional facilities. Further, prolonged pretrial detention gives the illusion that justice is being served by keeping an alleged offender behind bars, but often has the unjust effect of forcing a defendant to plead guilty even when the defendant may have prevailed at trial, for the sake of hastening the defendant's release from custody and return to a normal life.

The purpose of this part is to introduce meaningful reforms to the manner of determining eligibility for pretrial release and promote greater fairness and equity in the criminal courts, by:

(1) Prohibiting from inclusion in a pretrial bail report certain types of information that tend to lead to bias against a defendant;

(2) Requiring that copies of the bail report be provided to the parties, including defendant's counsel, no later than the commencement of the bail hearing;

(3) Establishing a rebuttable presumption that a defendant is entitled to release and requiring the prosecution to prove, by clear and convincing evidence, that release of a defendant would be inappropriate based on certain specified criteria;

(4) Requiring that any bail set by the court shall be in an amount that the defendant is able to afford;

(5) Prohibiting the denial of pretrial release based solely upon certain factors, such as the defendant's positive test for drug use;

(6) Requiring the automatic issuance of protective orders in assaultive cases;

(7) Providing that with respect to a revocation of release on bail, recognizance, or supervised release, the prosecution must prove, by clear and convincing evidence, that the defendant intentionally violated a condition of release, and that the condition was reasonable under the totality of the circumstances; and

(8) Requiring the court, in certain cases when revoking a defendant's release, to enter a finding that no other non-financial condition or combination of conditions can be imposed that would ensure the defendant's appearance and the safety of the public, and that the revocation is therefore necessary as an action of last resort.

SECTION 7. Chapter 353, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"§353- Bail reports; prohibited content. A pretrial bail report prepared by the intake service center under section 353-10 shall not contain information on any of the following:

(1) Prior arrests in the defendant's criminal history that did not result in a conviction; or

(2) The geographic location of the defendant's prior arrests or convictions."

SECTION 8. Section 353-10, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The centers shall:

(1) Provide orientation, guidance, and technical services;

(2) Provide social-medical-psychiatric-psychological diagnostic evaluation;

(3) Conduct internal pretrial risk assessments on adult offenders within three working days of admission to a community correctional center; provided that this paragraph shall not apply to persons subject to county or state detainers or holds, persons detained without bail, persons detained for probation violation, persons facing revocation of bail or supervised release, and persons who have had a pretrial risk assessment completed prior to admission to a community correctional center. For purposes of this paragraph, "pretrial risk assessment" means an objective, research-based, validated assessment tool that measures an offender's risk of flight, risk of criminal conduct, and risk of violence or harm to any person or the general public while on pretrial release pending adjudication. The pretrial risk assessment tool and procedures associated with its administration shall be periodically reviewed and subject to further validation at least every five years to evaluate the effectiveness of the tool and the procedures associated with its administration. The findings of periodic reviews shall be publicly reported;

(4) Provide correctional prescription program planning and security classification;

(5) Provide other personal and correctional services as needed for both detained and committed persons;

(6) Monitor and record the progress of persons assigned to correctional facilities who undergo further treatment or who participate in prescribed correctional programs;

(7) Provide continuing supervision and control of persons ordered to be placed on pretrial supervision by the court and persons ordered by the director;

(8) Make inquiry with the offender concerning the offender's financial circumstances and include this information in the bail report; provided that the department of public safety's pretrial services officers shall be provided limited access for the purpose of viewing other state agencies' relevant data related to an offender's employment wages and taxes;

(9) Provide pretrial bail reports to the courts on adult offenders, within three working days of admission of the offender to a community correctional center, that are ordered by the court or consented to by the offender. A complete copy of the executed pretrial risk assessment delineating the scored items, the total score, any administrative scoring overrides applied, and written explanations for administrative scoring overrides, shall be included in the pretrial bail report. The pretrial bail reports shall be confidential [~~and~~], shall not be deemed to be public records[.], and shall not include any information that is prohibited under section 353- . A copy of a pretrial bail report shall be provided no later than the commencement of the bail hearing and shall be provided only:

(A) To the defendant or defendant's counsel;

(B) To the prosecuting attorney;

(D) To any psychiatrist, psychologist, or other treatment practitioner who is treating the defendant pursuant to a court order;

(E) Upon request, to the adult client services branch; and

(F) In accordance with applicable laws, persons, or entities doing research. The research entity must be approved and contracted by the department of public safety to protect the confidentiality of the information, insofar as the information is not a public record."

SECTION 9. 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.

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

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

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

~~(4)~~ ~~There is a serious risk that the person will engage in illegal activity.~~]; and

the risk cannot be mitigated by any set of release conditions imposed by the court.

(c) [Under subsection (b)(1) 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.~~] There shall be

a rebuttable presumption that the person is entitled to release on recognizance or to supervised release, and that the person will appear in court when required. The burden of proof shall be upon the prosecution to establish, by clear and convincing evidence, that release under this subsection would be inappropriate based upon the criteria in subsection (b).

(d) If[~~, after~~] the court finds pursuant to 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 prosecution 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.

(e) Any bail set by the court shall be in an amount that the person is able to afford, based upon information in the bail report or the person's sworn affidavit or testimony, subject to any rebuttal evidence the prosecution may introduce, at the release hearing; provided that:

(1) In setting bail, 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 that is at or below the federal poverty level. If the person has no source of income other than public benefits or has a household income that is at or below the federal poverty level, the person shall be deemed unable to pay bail in any amount; and

(2) If the person has a household income that is above the federal poverty level and that is not derived from public benefits, the court shall consider an amount that the person could reasonably afford to pay within forty hours of the person's arrest."

SECTION 10. Section 804-7.1, Hawaii Revised Statutes, is amended to read as follows:

"§804-7.1 Conditions of release on bail, recognizance, or supervised release. (a) Upon a showing that there exists a danger that the defendant will commit a serious crime as defined in section 804-3(a) or will seek to intimidate witnesses, or will otherwise unlawfully interfere with the orderly administration of justice, the judicial officer named in section 804-5 may deny the defendant's release on bail, recognizance, or supervised release[.]; provided that denial of release on bail, recognizance, or supervised release shall not be based solely upon the defendant having:

(1) Recently tested positive for drug use;

(2) A prior criminal history, if the history contains only arrests but no convictions; or

(3) A prior revocation of release on bail, recognizance, or supervised release, regardless of whether in a prior criminal case or in the instant case.

(b) Upon the defendant's release on bail, recognizance, or supervised release, however, the court may enter an order:

(1) Prohibiting the defendant from approaching or communicating with particular persons or classes of persons, including the complainant; provided that when the alleged offense involves physical assault or sexual assault, a written protective order prohibiting the defendant from having contact in any form with the complainant or with any other witness shall automatically issue, and the defendant shall be advised of the protective order while on the record; except that no such order should be deemed to prohibit any lawful and ethical activity of defendant's counsel;

(2) Prohibiting the defendant from going to certain described geographical areas or premises;

(3) Prohibiting the defendant from possessing any dangerous weapon, engaging in certain described activities, or indulging in intoxicating liquors or certain drugs;

(4) Requiring the defendant to report regularly to and remain under the supervision of an officer of the court;

(5) Requiring the defendant to maintain employment, or, if unemployed, to actively seek employment, or attend an educational or vocational institution;

(6) Requiring the defendant to comply with a specified curfew;

(7) Requiring the defendant to seek and maintain mental health treatment or testing, including treatment for drug or alcohol dependency, or to remain in a specified institution for that purpose;

(8) Requiring the defendant to remain in the jurisdiction of the judicial circuit in which the charges are pending unless approval is obtained from a court of competent jurisdiction to leave the jurisdiction of the court;

(9) Requiring the defendant to submit to the use of electronic monitoring and surveillance;

(10) Requiring the confinement of the defendant in the defendant's residence;

(11) Requiring the defendant to satisfy any other condition reasonably necessary to ensure the appearance of the defendant as required and to ensure the safety of any other person or [~~community;~~] persons; or

(12) Imposing any combination of conditions listed above;

provided that the court shall impose the least restrictive non‑financial conditions required to ensure the defendant's appearance and to protect the public.

(c) The judicial officer may revoke a defendant's [~~bail upon proof that the defendant has breached any of the conditions imposed.~~] release on bail, recognizance, or supervised release; provided that the revocation is in accordance with the requirements of section 804-7.3."

SECTION 11. Section 804-7.2, Hawaii Revised Statutes, is amended to read as follows:

"§804-7.2 Violations of conditions of release on bail, recognizance, or supervised release. (a) [~~Upon~~] Subject to the limitation set out in subsection (d), upon verified application by the prosecuting attorney alleging that a defendant has intentionally violated the conditions of release on bail, recognizance, or supervised release, the judicial officer named in section 804-5 shall issue a warrant directing the defendant be arrested and taken forthwith before the court of record for hearing.

(b) [~~Upon~~] Subject to the limitation set out in subsection (d), upon verified application by a pretrial officer of the intake service center that a defendant has intentionally violated the conditions of release on bail, recognizance, or supervised release, the court may issue an order pertaining to bail to secure the defendant's appearance before the court or a warrant directing that the defendant be arrested and taken forthwith before the court of record for hearing.

(c) [A] Subject to the limitation set out in subsection (d), a law enforcement officer having reasonable grounds to believe that a released felony defendant has violated the conditions of release on bail, recognizance, or supervised release, may, where it would be impracticable to secure a warrant, arrest the defendant and take the defendant forthwith before the court of record.

(d) A defendant shall not be arrested under this section solely because the defendant has tested positive for drug use."

SECTION 12. Section 804-7.3, Hawaii Revised Statutes, is amended to read as follows:

"§804-7.3 Sanctions for violation of conditions of release on bail, recognizance, or supervised release. After hearing, and upon finding that the defendant has intentionally violated reasonable conditions imposed on release on bail, recognizance, or supervised release, the court may impose different or additional conditions upon defendant's release or revoke defendant's release on bail, recognizance, or supervised release[.]; provided that:

(1) The burden of proof shall be upon the prosecution to establish, by clear and convincing evidence, that the defendant intentionally violated a condition of release, and that the condition was reasonable under the totality of the circumstances; and

(2) If the court revokes the defendant's release and the revocation is based upon the violation of a condition of release that did not involve the defendant's commission or alleged commission of a new offense or the defendant's failure to appear in court in the instant case, the court shall enter findings into the record that no other non-financial condition or combination of conditions can be imposed that would ensure the defendant's appearance and the safety of the public, and that the revocation is therefore necessary as an action of last resort."

PART III

SECTION 13. The legislature finds that existing state laws relating to certain violations of community supervision have resulted in skyrocketing rates of incarceration and severe overcrowding in state correctional facilities. The legislature recognizes that use of alcohol and illicit substances by probationers and parolees is often rooted in the complex issue of addiction and not simply due to a deliberate choice to disregard the law or the terms of probation or parole. Subjecting a probationer or parolee to arrest and potential revocation of community supervision is disruptive to the person's overall efforts and progress in leading a pro-social life--and is also costly for the State. The State currently spends $219 per day, or $79,935 per year, to incarcerate just one person. Research shows that, in contrast, community-based services are a fraction of the cost of incarceration.

The legislature believes that, instead of expending funds to arrest a probationer or parolee who has tested positive for drug use, and holding a hearing on whether probation or parole should be revoked based on the positive test, funds should be reinvested in employment, housing, social services, and community-based treatment programs that more effectively reduce recidivism.

The purpose of this part is to:

(1) Provide that at any time before trial, any party representing the defendant or providing information to the court concerning the defendant may request that the court order the defendant to undergo a substance abuse assessment and participate in any necessary treatment;

(2) Prohibit the arrest of a probationer or parolee solely due to the person having tested positive for drug use; and

(3) Prohibit the revocation of probation or parole solely due to the person having tested positive for drug use.

SECTION 14. Chapter 805, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§805- Drug screening; request. At any time before trial, any party representing the defendant, or providing information to the court concerning the defendant, may request that the court order the defendant to undergo a substance abuse assessment and participate in any necessary treatment; provided that this section shall not preclude a request of this nature being made subsequent to trial or any conviction that results therefrom."

SECTION 15. Chapter 806, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§806- Drug screening; request. At any time before trial, any party representing the defendant, or providing information to the court concerning the defendant, may request that the court order the defendant to undergo a substance abuse assessment and participate in any necessary treatment; provided that this section shall not preclude a request of this nature being made subsequent to trial or any conviction that results therefrom."

SECTION 16. Section 353-66, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (b) to read:

"(b) No parole shall be revoked and no credits forfeited without cause, which [~~cause~~] must be stated in the order revoking the parole[,] but shall not be based solely upon the parolee having tested positive for drug use, or in the order forfeiting the credits after notice to the paroled prisoner of the paroled prisoner's alleged offense and an opportunity to be heard; provided that when a person is convicted in the State of a crime committed while on parole and is sentenced to imprisonment, or when it is shown by personal investigation that a parolee has left the State without permission from the paroling authority and due effort is made to reach the parolee by registered mail directed to the parolee's last known address, no hearing shall be required to revoke the parolee's parole; and provided further that when any duly licensed psychiatrist or licensed psychologist finds that continuance on parole will not be in the best interests of a parolee or the community, the paroling authority, within the limitations of the sentence imposed, shall order the detention and treatment of the prisoner until such time as the prisoner shall be found by any duly licensed psychiatrist or licensed psychologist to be eligible for continuance on parole."

2. By amending subsection (d) to read:

"(d) The paroling authority may at any time order the arrest and temporary return to custody of any paroled prisoner, as provided in section 353-65, for the purpose of ascertaining whether or not there is sufficient cause to warrant the paroled prisoner's reimprisonment or the revoking of the paroled prisoner's parole or other action provided for by this part[.]; provided that a parolee shall not be arrested under this subsection solely because the parolee has tested positive for drug use."

SECTION 17. Section 706-625, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:

"(3) The court shall revoke probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or has been convicted of a felony[.]; provided that the court shall not revoke probation solely because the defendant has tested positive for drug use. The court may revoke the suspension of sentence or probation if the defendant has been convicted of another crime other than a felony."

SECTION 18. Section 706-626, Hawaii Revised Statutes, is amended to read as follows:

"§706-626 Summons or arrest of defendant on probation; commitment without bail. [At] (1) Subject to the restriction in subsection (2), at any time before the discharge of the defendant or the termination of the period of probation:

[~~(1)~~] (a) The court may, in connection with the probation, summon the defendant to appear before it or may issue a warrant for the defendant's arrest;

[~~(2)~~] (b) A probation or law enforcement officer, having probable cause to believe that the defendant has failed to comply with a requirement imposed as a condition of the order, may arrest the defendant without a warrant and the defendant shall be held in custody pending the posting of bail pursuant to a bail schedule established by the court, or until a hearing date is set; provided that when the punishment for the original offense does not exceed one year, the probation or law enforcement officer may admit the probationer to bail; or

[~~(3)~~] (c) The court, if there is probable cause to believe that the defendant has committed another crime or has been held to answer therefor, may commit the defendant without bail, pending a determination of the charge by the court having jurisdiction thereof.

(2) A defendant shall not be arrested under this section solely because the defendant has tested positive for drug use."

PART IV

SECTION 19. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 20. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1336
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII