HOUSE OF REPRESENTATIVES	H.B. NO.	1279
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII

A BILL FOR AN ACT

relating to bail.

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

SECTION 1. The legislature finds that the right to physical liberty is one of the foundational principles of the United States Constitution. The United States Supreme Court has been unequivocal in stating that "[i]n our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception."

The legislature recognizes that the 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 other people of color, who are more likely to be arrested, detained, and unable to afford bail.

The legislature further finds that reducing pretrial incarceration would help address severe overcrowding in Hawaii's jails. The American Civil Liberties Union of Hawaii reported that almost half of the people in the State's jails remain incarcerated because they are unable to afford bail while awaiting trial. Reducing pretrial incarceration rates would also help to reduce the State's expenses. It costs the State approximately $238 per day, or $86,870 per year, to incarcerate each adult.

The legislature notes that the federal system and other states and counties have successfully implemented pretrial reforms that reduce the need for cash bail.

Accordingly, the purpose of this Act is to:

(1) Establish a rebuttable presumption that a person charged with a crime is entitled to unconditional release; and

(2) Require the court to consider conditioning pre-trial release on nonfinancial conditions before ordering bail if unconditional release is inappropriate.

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 may be denied where the charge is for a serious crime, and:] 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]:

(A) Obstruct or attempt to obstruct justice[, or therefore injure,]; or

(B) 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 [danger to any person or the community; or

(4) There is a serious risk that the person will engage in illegal activity.] significant and articulable danger to a specific or reasonably identifiable person or persons; and

(4) The risks cannot be mitigated by any set of pretrial 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.] that the person is entitled to unconditional release, or release on the person's own recognizance, and that the person will appear in court when required. A hearing shall be held within forty-eight hours of the person's arrest and before a court grants unconditional release. If unconditional release under this section is inappropriate based on the criteria in subsection (b), the burden of proof shall be on the State to establish this by clear and convincing evidence.

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

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

[(d)] (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 shall enter on the record its findings with respect to the denial of bail. The burden of proof shall be on the State to establish, by clear and convincing evidence, that there is no condition or combination of conditions that would reasonably assure the appearance of the person when required or the safety of any other person or persons.

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

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

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

(3) If the person's household income, excluding any income derived from public benefits, is above the federal poverty level, the court shall consider the amount of bail the person could reasonably pay within forty‑eight 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 upon its approval.

INTRODUCED BY:

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Report Title:

Crime; Unconditional Release; Pre-trial Release; Bail

Description:

Establishes a rebuttable presumption that a person charged with a crime is entitled to unconditional release. Requires the court to consider conditioning pre-trial release on nonfinancial conditions before ordering bail if unconditional release is inappropriate.

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