SB2279

SECTION 1. The legislature finds that bail providers, including bail agents, sureties, and insurers, provide a valuable service to the public, law enforcement, and the accused. The legislature further finds that the State's bail forfeiture rules create unnecessary risks for bail providers, decreasing the incentive to furnish bail under certain circumstances due to the high financial risk of forfeiture. Due to this significant financial risk, bail providers typically require a payment of ten per cent of the total bail amount. This system disadvantages low-income defendants charged with serious crimes because they are often unable to afford the collateral payment and therefore ineligible for pretrial release.

The legislature recognizes the vital role bail plays in the judicial system. The presumption of innocence is a core component of the country's criminal justice system. Following this presumption, and barring certain exceptions, it is therefore unjust to hold defendants in jail until trial, pursuant to the bail clause of the eighth amendment of the United States Constitution. Monetary bail enables defendants to secure their release until trial by depositing a dollar sum with the court that is subject to forfeiture if the defendant fails to appear in court as ordered. Bail therefore safeguards both the rights of the accused and public safety.

Defendants with sufficient financial means may pay their own bail. Those who can pay at least ten per cent of the total sum may collateralize the remainder by pledging assets to a bail agent. Bail agents collaborate with sureties and insurers, collectively known as bail providers, to finance the total bail amount for deposit with the court. All parties involved risk forfeiting their contributions to the deposit should the defendant fail to appear in court.

In addition to their role as financiers, bail agents also operate as quasi-law enforcement officers due to their financial stake in the proceedings. Bail agents have the legal authority, expertise, duty, and incentive to monitor defendants and apprehend fugitives. They provide this service at no cost to taxpayers. Without bail agents performing this essential function, local police would be obligated to divert additional resources from ongoing crimefighting efforts.

The legislature further finds that, in the State, bail may be forfeited within thirty days of a defendant's failure to appear in court. This is an unrealistic deadline for bail agents to locate and apprehend fugitives. Although the court may extend the deadline for good cause, failure is not an option for bail providers. Regardless of their efforts and circumstances, bail providers forfeit the full monetary bail amount if they fail to apprehend the fugitive before the deadline. The full forfeiture may even apply if a bail agent apprehends and delivers the defendant in time for trial but misses the forfeiture deadline.

These strict deadlines and corresponding forfeiture rules significantly increase the financial risk of providing bail. Accordingly, bail providers require assets as collateral to insulate themselves from potential losses. Without collateral, which is typically ten per cent of the total bail amount, the existing forfeiture system would quickly bankrupt many bail providers.

Due to this collateral requirement, defendants with limited financial means are often unable to obtain bail and pretrial release. Many defendants must ask family and friends to act as guarantors by paying the ten per cent deposit to the bail agent and pledging their assets to secure the remainder. If the defendant is of low moral character and subsequently flees, their guarantors, although completely innocent of wrongdoing, may lose their life savings and homes to forfeiture.

The legislature therefore finds that the existing bail system is flawed due to the perverse incentives it creates. These include ending a bail agent's financial incentive to locate and apprehend defendants that flee by ordering bail forfeiture; relying on the threat of forfeiture of their guarantor's assets to deter bad-faith, destitute defendants from fleeing; and predicating pretrial release on financial means, forcing many defendants acting in good-faith but lacking monetary assets to remain in jail until trial.

Despite these flaws, the legislature acknowledges that bail reform is complex and must be achieved incrementally to safeguard public safety. The consequences of reforms such as eliminating monetary bail or transitioning to a government-run bail system are historically mixed. Oregon outlawed commercial bail bonds in 1973. However, since transitioning to a public-sector pretrial program, defendants' failure-to-appear rates in the state have risen dramatically.

Several studies demonstrate the advantages of maintaining a commercial bail industry. A 2005 study examining pretrial releases in California found that defendants released on their own recognizance or through a conditional release program were sixty per cent more likely to fail to appear in court than those released on surety bond. The study also highlighted the public service bail agents provide by apprehending fugitives. It found that defendants who failed to appear for court were two and a half times more likely to remain fugitives if they were released on their own recognizance or conditional or supervised release than if they were released on surety bond. The study estimated that with a larger rate of surety bond releases, the total cost savings of the counties examined could range between $14,000,000 and $109,000,000 annually (Michael K. Block, University of Arizona, The Effectiveness and Cost of Secured and Unsecured Pretrial Release in California's Large Urban Counties: 1990-2000 (2005)). These results demonstrate the fiscal, legal, and social advantages of utilizing bail agents. Due to their financial incentives and private powers, bail agents have a better history of maintaining the bail system than their public sector counterparts. The legislature therefore finds that the existing bail system must be reformed to sustain these advantages while expanding services accessible to defendants with limited financial means.

Accordingly, the purpose of this Act is to:

(1) Predicate forfeiture rules on whether bail providers performed and continue to perform their duties with reasonable diligence;

(2) Clarify when bail providers may discharge their duties;

(3) Specify the factors courts shall consider to determine if bail providers are performing their duties with reasonable diligence or are negligent and should be subject to forfeiture;

(4) Require courts to hold a hearing to order a forfeiture, rather than entering a default judgement in favor of the State;

(5) Increase the deadline to file a motion to set aside forfeiture;

(6) Clarify that courts have discretion to further delay the forfeiture deadline; and

(7) Specify that bail providers are not in privity with defendants, and therefore not barred res judicata from filing a motion to set aside forfeiture if the defendant already made the same motion and was denied.

This Act shall be known and cited as the "Hawaii Fair Bail Act".

SECTION 2. Chapter 804, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"§804- Judicial discretion; bail proceedings. The court shall have maximum discretion to grant, deny, and set conditions of bail pursuant to article I, section 12, of the Hawaii State Constitution, including the form and amount pursuant to section 804-9. The court may consider any evidence to make its determination during bail proceedings."

SECTION 3. Section 804-1, Hawaii Revised Statutes, is amended to read as follows:

"§804-1 Bail [~~defined.~~]; definitions. As used in this chapter:

"Any time" includes nights, weekends, holidays, and the time after bail forfeiture, without restriction to court hours or administrative convenience.

[~~Bail,~~] "Bail" or [~~the~~] "the giving of [~~bail, is~~] bail" means the signing of the recognizance by the defendant and the defendant's surety or sureties, conditioned for the appearance of the defendant at the session of a court of competent jurisdiction to be named in the condition, and to abide by the judgment of the court.

"Bail agent" has the same meaning as defined in section 431:9N-101 and includes a producer or agent legally authorized to act on behalf of a surety and the court to locate and apprehend a defendant who flees or otherwise fails to appear in court as ordered.

"Bail bond" means a written financial guarantee provided to the court by a bail agent, defendant, or other party that can be forfeited if the defendant fails to appear in court as ordered without justifiable cause.

"Bail provider" includes any bail agent, surety, or insurer that assists in financing a defendant's bail and assumes certain responsibilities pursuant to this chapter.

"Defendant" or "principal" means any person who is a defendant in a criminal proceeding, or quasi-criminal proceeding, for whom a bail or peace bond is being considered, granted, revoked, or forfeit.

"Insurer" means a party, often a business entity, that assumes the risk of default for the benefit of a bail agent.

"Peace bond" means a surety bond required by a court to guarantee that a defendant will not violate a court order to refrain from engaging in specified conduct, violating the law, or breaching the peace.

"Surety" means a person or entity that assumes direct liability for a principal's bond obligation. "Surety" includes a business entity that provides a line of credit to a bail agent to deposit with the court as bail for a defendant that may be forfeited if the defendant fails to appear as ordered, in return for payment of a risk premium."

SECTION 4. Section 804-3, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(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;

(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;

(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[.];

(5) There is a serious risk that the person will infringe on or obstruct the legal rights of other persons;

(6) There is a serious risk that the person poses a danger to property;

(7) The person breached the conditions of bail in past criminal proceedings or has already breached the conditions of bail in the current proceedings; or

(8) Bail is prohibited by law for the alleged offense."

SECTION 5. Section 804-10.5, Hawaii Revised Statutes, is amended to read as follows:

"§804-10.5 [~~Sureties; qualification.~~] Bail providers; qualifications; duties. (a) In determining the sufficiency of a [~~surety or sureties,~~] bail provider, the court shall consider the [~~surety's or sureties':~~] historic conduct of the bail provider, including the bail provider's:

(1) Character;

(2) Reliability;

(3) Place of residence; and

(4) Financial and employment circumstances.

(b) No person or entity shall be a sufficient [~~surety~~] bail provider who:

(1) Has been convicted of perjury for submitting a false statement under section 804-11.5;

(2) Does not satisfy the requirements of section 804-11.5; or

(3) Does not satisfy the requirements of article 9A, chapter 431, if posting an insurance bond as defined in section 431:1-210(1).

(1) Ensuring that the defendant, or any other person pledging assets as collateral for bail on behalf of the defendant, is duly informed of the terms, fees, costs, and possible adverse consequences of the transaction;

(2) Posting bail timely, in the amount and in accordance with any order or instructions issued by the court;

(3) Taking reasonable measures to:

(A) Monitor the whereabouts of the defendant throughout the trial or until discharged by the court; and

(B) Remind the defendant of any relevant hearing times and dates, including the times and dates of trial;

(5) Taking appropriate measures to assist the defendant as needed to appear in court as ordered for hearings and trial; and

(6) Diligently searching for, apprehending, and surrendering the defendant as directed by the court if the defendant fails to appear as ordered for a hearing or trial, flees, or otherwise violates the terms of bail.

The duties of bail providers cooperating to secure a person's bail may overlap or be independent at each bail provider's discretion; provided that the bail providers are collectively responsible for ensuring all duties are performed."

SECTION 6. Section 804-14, Hawaii Revised Statutes, is amended to read as follows:

"§804-14 Discharge of [~~sureties.~~] bail providers who provide bail bonds for pretrial release. [~~Those who may have become bail for anyone,~~] Any bail provider may at any time discharge [~~themselves,~~] oneself by surrendering [~~him~~] the defendant to the custody of any sheriff [or], chief of police [~~or his~~], the sheriff's or chief's authorized subordinate[.], or any appropriate federal law enforcement agency, by filing a notice or motion with the court as follows:

(1) If the defendant has not breached the terms of bail or pretrial release, the bail provider may seek discharge for other reasons; provided that the bail provider shall return all fees and expenses charged to the defendant and others and assist the defendant as needed to procure alternate sources of bail;

(2) If the defendant has breached any condition of bail or pretrial release other than failure to appear, the bail provider, after discovering the breach:

(A) Shall notify the court of the breach; and

(B) May surrender the defendant to law enforcement and move that the court grant the bail provider discharge; provided that the bail provider shall surrender the defendant if so ordered by the court; provided further that, if the motion for discharge is granted, the court shall have the discretion to hold the defendant in custody pending trial or allow the defendant to seek a new source of bail;

(3) If the defendant fails to appear for any hearing or trial as ordered by the court, after the defendant is apprehended and surrendered to the custody of law enforcement, the bail provider may seek discharge; and

(4) If, due to a breach by the defendant, the court increases the bail amount, the court shall afford the bail provider the option to decline the additional financial risk and grant the bail provider a discharge upon request, whereupon the court shall enable the defendant to seek a new source of bail."

SECTION 7. Section 804-41, Hawaii Revised Statutes, is amended to read as follows:

"§804-41 Discharge of [~~surety.~~] bail providers who provide peace bonds. At any time before the breach of the condition of the peace bond, the [~~surety~~] bail provider may discharge oneself by surrendering the principal into the hands of any sheriff [or], the chief of police [or], the sheriff's or chief's authorized subordinate[.], or any appropriate federal law enforcement agency, by filing a notice or motion with the court as follows:

(1) If the defendant has not breached the terms of the peace bond, the bail provider may seek to discharge oneself for other reasons; provided that the bail provider shall return all fees and expenses charged to the defendant and others and assist the defendant as needed to procure alternate sources of peace bond;

(2) If the defendant has breached any condition of the peace bond, the bail provider, after discovering the breach:

(A) Shall notify the court of the breach; and

(3) If, due to a breach by the defendant, the court increases the peace bond amount, the court shall afford the bail provider the option to decline the additional financial risk and grant the bail provider discharge upon request, whereupon the court may enable the defendant to seek a new source of peace bond."

SECTION 8. Section 804-51, Hawaii Revised Statutes, is amended to read as follows:

"§804-51 [~~Procedure.~~] Forfeiture; procedures; requirements. (a) Whenever the court, in any criminal cause, [~~forfeits~~] due to the flight of the defendant or breach of other bond terms, contemplates the forfeiture of any bond or recognizance given [~~in a criminal cause~~], either sua sponte or upon a motion from the prosecutor, the court shall [~~immediately enter up~~] schedule a hearing to determine whether judgment should be rendered in favor of the State and against the principal or principals, bail agent, surety or sureties, and surety insurer or surety insurers on the bond, jointly and severally, for the full amount of the bond and penalty, if any, thereof[, ~~and~~]. Notice of the hearing shall be served at least thirty days before the hearing via the judicial electronic filing and service system to all parties registered with the system or via personal service or certified mail, return receipt requested, to all parties not registered with the judicial electronic filing and service system.

(b) If the bond was provided by a bail agent, regardless of whether in concert with a surety or insurer, the bond shall only be forfeited if:

(1) The bail agent, surety, or insurer failed to perform their duties with reasonable diligence or are failing to continue to perform those duties with reasonable diligence. To determine whether a bail provider's duties were and continue to be performed with reasonable diligence, the court:

(A) Shall consider whether the bail provider acted appropriately given the factual circumstances, instead of whether the bail provider succeeded or failed in apprehending the defendant;

(B) May consider any evidence, including hearsay;

(D) May require the bail provider to provide the court with additional evidence at regular intervals after the hearing to demonstrate continued good-faith efforts to perform their duties with diligence;

(2) The bail provider violated any law relevant to their duties; or

(3) The bail provider disobeyed an order from the court.

(c) The bail provider shall not be construed as being in privity with a defendant who breaches any requirement of bond, and shall therefore not be barred res judicata or otherwise precluded from moving the court to set aside a forfeiture or moving for a discharge of their obligations, regardless of whether the defendant or defendant's counsel previously made the same motions and regardless of whether those motions were denied.

(d) If the court orders a forfeiture following a hearing pursuant to subsections (a) and (b), the court shall cause execution to issue thereon [~~immediately~~] after the expiration of [~~thirty~~] ninety days from the date that notice is given via the judicial electronic filing and service system to registered parties, or, to parties not registered with the system, via personal service or certified mail, return receipt requested, to the bail agent, surety or sureties, or the surety insurer or surety insurers on the bond, of the entry of the judgment in favor of the State, unless before the expiration of [~~thirty~~] ninety days from the date that notice is given to the bail agent, surety or sureties, or the surety insurer or surety insurers on the bond of the entry of the judgment in favor of the State, a motion or application of the principal or principals, bail agent, surety or sureties, surety insurer or surety insurers, or any of them, showing good cause why execution should not issue upon the judgment, is filed with the court[.]; provided that the court may extend, waive, or modify the ninety-day period for filing a motion to set aside forfeiture pursuant to subsection (e). If the motion or application, after a hearing held thereon, is sustained, the court shall vacate the judgment of forfeiture and, if the principal surrenders or is surrendered pursuant to section 804-14 or section 804-41, return the bond or recognizance to the principal, bail agent, surety, or surety insurer, whoever shall have given it, less the amount of any cost, as established at the hearing, incurred by the State as a result of the nonappearance of the principal or other event on the basis of which the court forfeited the bond or recognizance. If the motion or application, after a hearing held thereon, is overruled, execution shall forthwith issue and shall not be stayed unless the order overruling the motion or application is appealed from as in the case of a final judgment. If the motion or application, after a hearing held thereon, is granted, the State may appeal the order granting the motion or application as in the case of a final judgment.

(e) The court shall have the discretion to extend, waive, or modify all procedural deadlines in forfeiture proceedings.

(f) If the defendant fled and has not been located and apprehended, no forfeiture shall be ordered unless a National Crime Information Center warrant is entered at least thirty days before forfeiture.

(g) This section shall be considered to be set forth in full in words and figures in, and to form a part of, and to be included in, each and every bond or recognizance given in a criminal cause, whether actually set forth in the bond or recognizance, or not."

SECTION 9. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 10. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 12. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2279
THIRTY-THIRD LEGISLATURE, 2026
STATE OF HAWAII