In September, public defender William Bagasol heard an all-too-familiar story about the inequity of Hawaii’s criminal justice system.

A homeless man on Oahu was arrested on a felony charge of drug possession, recalled Bagasol, a supervising deputy public defender for the felony division. The man was jailed and told he had to pay bail of $2,000 to get out while he awaited trial, an amount he could not afford.

He was stuck behind bars, trapped by his own poverty, while a wealthier defendant could have paid bail and walked free within hours.

“It happens every day, every single day,” said Bagasol, describing bail practices that he hopes may at last be on the verge of disappearing.

Bagasol is optimistic because bail-reform legislation, seven years in the making, is moving rapidly through the Legislature. The bills would require officials to make it easier for people to gain release if they are arrested for nonviolent crimes and are not a flight risk, require consideration of a defendant’s financial situation before setting bail, and eliminate money bail for low-risk offenses.

Sen Chair Clarence Nishihara, Chair of the Public Safety, Intergovernmental, and Military Affairs committee.
Sen. Clarence Nishihara said legislators are generally following task force recommendations as they pursue bail reform. Cory Lum/Civil Beat

The reform package of bills that breezed through the House and Senate public safety committees this week with unanimous approval tracks closely to recommendations issued by a task force in December that found that Hawaii’s bail bond amounts are “excessive.”

“We are pretty much accepting the recommendations of the task force,” said state Sen. Clarence Nishihara, chairman of the Public Safety, Intergovernmental, and Military Affairs Committee. “We are trying to advance the recommendations.”

Similarly, Rep. Gregg Takayama, chairman of the House Public Safety, Veterans and Military Affairs Committee, expressed satisfaction with the unanimous votes to endorse the task force recommendations.

“I think this is a major step forward,” Takayama said at the House hearing on the measure Wednesday.

Rep Gregg Takayama during leg briefing on prisons.
Rep. Gregg Takayama, right, steered the bail reform package through the committee he chairs. Cory Lum/Civil Beat

The package includes House bills 1436 and 1289, which are bound next for the House Judiciary Commitee, and Senate bills 1538 and 1421, which are headed for the Senate Judiciary and Ways and Means Committees.

The task force included judges, prosecuting attorneys, chiefs of police and social workers. It met for a year, found that Hawaii — and Honolulu in particular — is holding people it arrests for a much longer time than other jurisdictions and urged a number of changes to the system.

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The task force report followed on the heels of a similar but more damning report released by the Hawaii chapter of the American Civil Liberties Union in January 2018. The ACLU report found that about half of the people being held in Hawaii’s jails had not been convicted of a crime but were awaiting action on their cases. The report said that 88 percent of people detained were required to post bail as a condition of release but that only 44 percent were able to actually do so.

Bail is typically set at $11,000 for a class C felony charge, which includes crimes such as theft of goods worth more than $750, the ACLU found, but is frequently much higher.

Hawaii has long had a punitive bail system that makes it difficult for low-level nonviolent defendants to gain their release pending trial, many experts say. Itʻs gotten worse as the cost of living has outstripped the assets of many families, leaving people with little left over to help out a friend or relative who is in trouble with the law.

In misdemeanor cases, under state law, the bail amount is established by police and the prosecutor under a set formula, with the police chief as final arbiter. They are generally focused on achieving a quick conviction or guilty plea.

“Prosecutors treat bail as a device for getting pleas,” said criminal defense attorney Myles Breiner, a task force member and president of the Hawaii Association of Criminal Defense Lawyers. “If they hold them long enough, they will cut a deal to get out.”

Attorney Myles Breiner Gutteriez case. 27 dec 2016
Criminal defense attorney Myles Breiner served on the task force and testified in favor of bail reform. Cory Lum/Civil Beat

The task force report found that people who are arrested on petty misdemeanors in Hawaii are held in jail, on average, for 18 days before going to trial. And those who have mental health problems are held an average of 92 days, according to the report.

The task force also found large discrepancies in how long prisoners are held. People awaiting trial for misdemeanors are held by Maui Community Correctional Center an average of four days, but for 42 days at the Oahu Community Correctional Center, according to the report.

Some significant concerns about the bills also emerged at Wednesday’s House hearing.

While the state Judiciary, the Public Defender’s Office and the Office of Hawaiian Affairs supported the reform package, each is asking for changes.

The Honolulu Police Department and state Attorney General’s office came out in opposition in both verbal and written testimony.

HPD said releasing more people would allow some, like those charged with negligent driving, to go back onto the roads and pose a public danger. The AG’s office said the state is already making changes to its pretrial sentencing system because of what was learned during the task force review, and now it needs time to determine if the changes are adequate to solve the problems.

Kat Brady coordinator of the Community Alliance on Prisons testifies during oversight commission hearing.
Kat Brady, coordinator of the Community Alliance on Prisons, testifies on bail reform at the Senate hearing Tuesday. Cory Lum/Civil Beat

Nevertheless, prison-reform activists were cautiously optimistic that the bail-reform proposals would make it into law.

“I’m encouraged the discussion is taking place,” said Kat Brady, coordinator of the Community Alliance on Prisons. “We’ve never had these discussions about corrections reform. The red, conservative states are way ahead of us on reform. We have a lot of catching up to do.”

Attorney Rich Turbin, president of Hawaii Friends of Restorative Justice, said reform is long overdue.

“The system is extremely unfair, and this is the worst way the courts are unfair,” Turbin said. “It’s a crime to keep people in jail for just minor bail. You don’t need to be Martin Luther King Jr. to see the injustice of it.”

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