Hawaii may not eliminate its cash-bail system entirely, but lawmakers are considering measures that could reduce the number of defendants who are left incarcerated because they cannot post bail.

Setting bail at reasonable amounts and eliminating it for low level offenses were just some of the recommendations made recently by the Criminal Pretrial Task Force, which was created by the Legislature to suggest revisions to criminal pretrial practices.

Less than half of criminal defendants are able to post bail in cases where bail is set, according to a report by the ACLU last year.

“People are presumed innocent until proven guilty,” former Circuit Court Judge Rom Trader, the task force chairman, said at a hearing Tuesday for members of the Senate and House judiciary and public safety committees. “They are entitled to the same protections, and should not suffer disparate treatment based on their background, their ethnicity or the size of their pocketbook.”

Oahu Community Corrections Center OCCC intake office.

The Oahu Community Correctional Center intake office. Two proposed bills would seek to reduce the number of pretrial defendants.

Cory Lum/Civil Beat

One bill, HB294, would require the release of any defendant charged with a minor crime who does not pose a flight risk or a danger to the community. The bill wold require courts to hold a hearing for release within 40 hours of an arrest.

And it  would also require courts to consider alternatives to bail if a defendant can’t be released.

Another bill, HB175, would allow a defendant to be released on an unsecured bail bond if they can prove that posting the full bail upfront would pose a financial hardship and that remaining incarcerated could cost them their job. If a defendant failed to appear before the court, they would be required to pay the bond amount.

Neither of the bills have been scheduled for hearings yet, but Sen. Karl Rhoads, who chairs the Senate Judiciary Committee, said they may have enough support to move forward.

“I don’t think it’s dead in the water,” he said of efforts to reform Hawaii’s bail  system.

Rep. Chris Lee said during the hearing that lawmakers may take incremental steps to move toward a bail system less reliant on upfront cash payments. Trader recommended against complete elimination of the cash-bail system.

“I think there are plenty of folks who think that the time’s now and that we should do what some other jurisdictions have done and jump in with both feet,” Trader said, referring to moving completely away from a cash-bail system.

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Circuit Court Judge Shirley Kawamura, also a task force member, told lawmakers that if legislation is passed to move away from a cash system, then they would need to find alternatives for some defendants, including those who pose flight risks.

For certain defendants, she said an alternative could be a halfway house to put some judges at ease over releasing a defendant without bail.

Trader agreed.

“The more options the judges have then the better chances of identifying a plan that is appropriate for a certain category of individual that may not be able to be released without that option,” Trader told Civil Beat. “The more resources there are, the more options there are, then the better off we’ll be.”

Lawmakers also heard a presentation by Associate Justice Michael Wilson, who lead a task force on prison reform. The task force said Hawaii needs an overhaul of its prison system to change its focus from incarceration to rehabilitation.

Among that task force’s recommendations is eliminating Hawaii’s dependence on for-profit, out-of-state prisons.

The prospects for prison reform legislation seem dimmer than for bail reform this session, but there is a proposed bill in the House that would outlaw the use of for-profit prisons.

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