When a Judiciary-led task force delivers its recommendations to legislators about how to improve Hawaii’s pretrial legal system, there apparently will be no call for comprehensive reform of the money bail system used to release some defendants after their initial arrest.

That would disappoint advocates of criminal justice reform who want Hawaii to follow the lead of other states like New Jersey, which overhauled its entire bail system in 2017, or California, which this year became the first state to rid itself of the cash bail system entirely.

The ACLU of Hawaii issued a report in January showing that in cases where bail was set, less than half of criminal defendants were able to pay it and instead remained days, even weeks, in jail, which costs taxpayers $170 a day per inmate.

“There should be a number of offenses where bail is not required,” said Mateo Caballero, legal director of the ACLU of Hawaii.

The task force is keeping quiet on more subtle recommendations regarding bail.

“I’m not trying to be cagey,” said state Circuit Court Judge Rom Trader, who leads the state task force that is putting finishing touches on the report to the Legislature due in December. “But there’s not going to be any big surprises in there.”

Oahu Community Corrections Center OCCC.

The Oahu Community Correctional Center in Kalihi currently holds about 1,200 inmates, about 250 more than the facility’s maximum capacity.

Cory Lum/Civil Beat

Bail’s Human Cost

The ACLU and advocates for inmates, along with some judges and lawyers, have long argued that the nation’s cash bail system deprives pretrial criminal defendants of their Eighth Amendment right against excessive bail and imposes on their right to be considered innocent until proven guilty. They say the system favors richer defendants, even if they are more dangerous.

Critics point to cases of poorer individuals whose lives were irrevocably altered after they were arrested for minor crimes, losing their jobs, homes and even children when they cannot afford bail.

Bail is the monetary promise criminal defendants make to return for their court dates after their initial arrest. Defendants can either pay the entire amount ordered by the court or they can contact a bail bond company to put up the money for their release. If they fail to show up, the bail or bond is forfeited to the court. Otherwise, it’s returned once the case is adjudicated.

Today there are efforts to reform the pretrial process in nearly three dozen states. In Texas, authorities have been forced by pending lawsuits to stop using bail for lesser  offenses. In other states, legislatures are restricting the use of bail and creating pretrial service departments, as New Jersey did in 2017. Some are tightening controls over the bail bond industry.

The ACLU and inmate advocates favor alternatives to bail such as requiring more defendants to be monitored with ankle bracelets or through weekly check-ins via text or phone.

“Bail is not supposed to be punishment,” Caballero said.

The ACLU report found that 88 percent of people who are jailed have to pay bail before they are released. When they can’t afford it, they sit longer.

Trader said the task force wants a more efficient, cost-effective pretrial process that keeps the public safe when criminal defendants are released.

Jim Lindblad, owner of A-1 Bail Bonds, said his industry is opposed to sweeping reforms that leave judges with two choices: detain without bail or release. Lindblad, who began his career in Oregon in pretrial detention, said he is not against reforming the bail system.

Judges need a smorgasbord of release choices,” he said.

And those choices, Lindblad said, should include bail.

Oahu Community Corrections Center OCCC intake office.

The OCCC intake office. An ACLU report found that 88 percent of people who are jailed in Hawaii have to pay bail before they are released.

Cory Lum/Civil Beat

Reforms In Hawaii

Since 2011, Hawaii has worked to reduce the amount of time pretrial inmates are kept in the state’s jails, enlisting the help of the Council Of State Governments Justice Center, which reviewed inmate populations.

Seven years later, the results have been mixed. While Hawaii lawmakers approved measures to consider sentencing alternatives for convicted criminals, they also approved a change in the penal code that called for mandatory minimum sentences for  habitual theft offenders.

Today, the state’s deteriorating facilities hold more inmates than they were originally designed to house. At least 1,400 Hawaii inmates continue to be housed at a private prison in Arizona. And now, after years of debate, Gov. David Ige recently announced the selection of the Animal Quarantine Station in Halawa as the site of a new, larger jail to replace the 1980s-era Oahu Community Correctional Center.

But inmate rights advocates argue that if the state offered better alternatives to incarceration, including more options for the treatment of drug abuse and mental health services, as well as tighter limits on the use of bail, a larger jail would not be needed.

“This is a short-sighted strategy that goes against best practices in criminal justice reform happening across the United States,” said Carrie Ann Shirota of the Hawaii Justice Coalition, which advocates for inmates’ rights. “Other states are working to shrink their jail and prison populations by investing in policy strategies that are cost-effective, and ultimately promote public safety.”

Mountains of boxes with records at Oahu Community Corrections Center OCCC.

Piles of inmate records at OCCC, which the state plans to replace with a larger facility.

Cory Lum/Civil Beat

The New Jersey Model

In 2017, New Jersey’s ambitious overhaul of its cash bail system drew praise from lawmakers and social justice advocates. The move came three years after then-Gov. Chris Christie, a Republican, began approving a series of efforts to streamline the legal system.

New Jersey judges, relying on a computer algorithm developed by the Laura and John Arnold Foundation, were able to decide more quickly whether defendants should be detained or released without bail. By the end of 2017, judges had made pretrial release decisions for 81 percent of jailed defendants within 24 hours. The state’s pretrial population dropped by 20 percent.

But results like these do not come with immediate cost savings. While New Jersey officials released more pretrial defendants quicker, it has relied on other methods such as ankle bracelets for those who need some degree of monitoring.

New Jersey spent more than $700,000 on technology upgrades for its ankle bracelet monitoring program alone. And that’s  just a fraction of the $130 million the state began setting aside in 2014 for the pretrial makeover. Judges and court staff received extensive training, more employees were hired and computer upgrades were extensive. Pretrial service departments were created.

By spring of this year, New Jersey Judge Glenn Grant, the administrator of that state’s court system, warned: “The funding of an ongoing court operation through court filing fees is simply not sustainable.”

His report noted that the amount of court fees collected in New Jersey had fallen and that the new pretrial services program would need a more stable funding stream from the legislature.

Grant also pointed out that for pretrial defendants to be successful upon release, more community-based substance abuse treatment programs, mental health services and housing assistance were needed.

Bail and Public Safety

Earlier this year, the Hawaii Legislature let bail reform measures stall to give Trader’s task force time to finish its report on how to improve all aspects of the pretrial process.

Meanwhile, a relatively low bail was set for a defendant who subsequently killed a police officer on the Big Island.

The case involving convicted felon Justin Waiki reinforced the worse fears of judges and prosecutors that allowing criminals to pay their way out of jail before trial can lead to even worse crimes.

Justin Waiki in an undated photo provided by the Hawaii Police Department.

AP

Whether the Waiki case has any bearing on the task force’s work remains to be seen. But it illustrates the factors at play when a judge determines how and when to release someone facing criminal charges.

Waiki, 33, was extradited from Las Vegas to Hawaii last year after violating terms of his probation in connection with a 2013 firearm and drug conviction. A Big Island judge rejected prosecutors’ request that Waiki be held on $20,000 bail because of his flight risk history.

Instead, the court set a $7,000 bond for Waiki. When Waiki failed to appear in court in March, a warrant was issued for his arrest. Four months later, Hawaii County Police Officer Bronson Kaliloa was shot and killed as he approached Waiki’s car during a traffic stop. Waiki was killed during the resulting pursuit and seven people have been indicted for helping him while he was on the run from police.

Hawaii County Prosecuting Attorney Mitch Roth, who declined to speak about the Waiki case because of the ongoing investigation, did talk about what he and others say is lost in the campaign for an overhaul of the bail system: public safety.

“We’re not incarcerating a lot of minor criminals,” said Roth, who is also a member of Trader’s task force.

A look at jail population at the end of August supports his contention. In a state of 1.4 million people, about 1,100 were in jails as pretrial defendants, including 597 booked at OCCC in Kahili. More than 80 percent of those were arrested on felony charges.

“The majority of people who are in pretrial have extensive records,” Roth said.

To determine the risk a pretrial defendant poses if released, Hawaii relies on the Ohio Risk Assessment System, in which defendants are scored before their bail hearings based on their past criminal history and other factors. The use of that system earned Hawaii a B rating in 2017 by the Pretrial Justice Institute, a group that has been studying pretrial procedures since the 1970s.

In addition to New Jersey, more than a dozen other states are using the Arnold Foundation’s Public Safety Assessment, which has been praised as a better predictor of whether a defendant will reoffend or return to court for trial. Judges in Houston began using it after lawsuits were filed against Harris County. Officials in Texas’ Dallas County, which is also fighting a lawsuit over its bail system, announced this week they plan to use the same tool.

Roth and Trader find the Arnold Foundation tool interesting, but it’s unlikely Hawaii will follow the lead of other states.

“I think it’s worth a discussion,” Trader said. “But we’re not at this point going to change tools.”

No predictor is perfect. Critics of the pretrial system in New Jersey have pointed to cases where dangerous suspects were released and offended again. A 2016 report by ProPublica found risk assessment tools can be biased against minority defendants.

Roth would like to see more sharing of information once a risk assessment report is finished.

“What I love about this,” he said of the New Jersey risk reports, “is they’re giving that to the prosecutor and the judges.”

Meanwhile, advocates hope the Waiki case will not deter the state from moving forward on even modest bail reforms.

“Since the law does not exist in a vacuum, real-life stories may and often are taken into consideration,” said Shirota of the Hawaii Justice Coalition. “However, sound public policy discussions should be driven by research and evidence-based practices, not merely in response to an egregious case.”

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