Lawmakers may be closing in on a political compromise this year that could finally reduce the number of people held in jail because they cannot post bail for low-level, non-violent offenses.

Bail reform was a key recommendation of the Criminal Pretrial Task Force in 2018, but the Legislature did not pursue any major reduction in the use of cash bail when it adopted some other task force recommendations in 2019.

This year, lawmakers may be taking the plunge with Senate Bill 1260, which would eliminate the use of monetary bail for at least some people accused of traffic offenses, non-violent misdemeanor and petty misdemeanor crimes and some low-level non-violent felonies.

The bill would require judges to release more people who are arrested for those offenses back into the community without bail while they wait for the courts to resolve their cases.

Advocates for change say the current system is unfair because it allows wealthy people to quickly post bail and win release, while poor people accused of the same offenses may remain in jail for months awaiting resolution of their cases.

Fairness aside, releasing more people without requiring bail would reduce jail costs, and also help reduce the inmate populations in Hawaii’s chronically overcrowded jails, according to advocates who want to overhaul the system.

Oahu Community Correctional Center guard tower near the corner of Puuhale Street. January 6, 2021
The Oahu Community Correctional Center guard tower near the corner of Puuhale Street. Some lawmakers contend the bail system in Hawaii is broken, and must be reformed or scrapped entirely. Cory Lum/Civil Beat/2021

Freshman Rep. Ernesto “Sonny” Ganaden said pretrial confinement today is a “holding pen for largely poor people who have mental illness.”

“It is broken, it has been broken for those who don’t have resources in our community, for indigenous people and especially for Pacific Islanders — the data bears that out,” he said.

Other jurisdictions across the country and in Western Europe and Asia no longer hold people in jail simply because they cannot pay enough money to get out, and requiring bail does nothing to reduce crime, Ganaden said.

No one can say yet how many more inmates would win pretrial release if the bail changes are adopted, in part because the latest version of the bill is a complex proposal that specifically excludes many prisoners.

For example, the new House version of SB 1260 would still require people who are arrested for misdemeanors and petty misdemeanors to post bail if they were on probation, on parole or awaiting trial for other crimes when they are arrested on a new charge.

Bail would also be required for people who were convicted of a violent crime in the last eight years, and people who have a history of skipping their court dates during the previous two years.

People who are arrested in cases that involve violating a restraining order or a court injunction would also still be required to post bail, along with people arrested for driving a vehicle under the influence of an intoxicant and negligent homicide.

That list of exceptions suggests the pool of people who would actually qualify for release without bail under the House bill might be pretty small.

Hawaii’s four jails held 1,653 inmates at the end of February, and state Department of Public Safety spokeswoman Toni Schwartz said the department has not yet analyzed what impact the versions of SB 1260 would have on Hawaii’s jail populations.

Schwartz said in a written statement the department was holding only 87 pre-trial inmates for misdemeanors or petty misdemeanors in February.

Another 32 were held for traffic offenses or violations, while 243 were held for non-violent Class C felonies, which is the lowest level of felony offense.

Hawaii’s four jails held 1,653 inmates at the end of February. Numerous exceptions to the elimination of cash bail suggests the number of people who would actually qualify for release might be pretty small.

However, some of those inmates may also have had other charges pending against them, which means some very likely would not have qualified for release without bail under the House proposal.

The state Senate unanimously passed a more ambitious version of the bill that likely would have resulted in releases without bail in more felony cases, but bail reform advocates concluded SB 1260 has a better chance of passing this year if they use a more cautious, step-by-step approach.

“This is a compromise measure,” said William Bagasol, supervising deputy public defender, in describing the House version of the bill. “We thought there would be more movement, a more realistic chance of passing if we kind of do it incrementally.”

“Anything new, people are not going to embrace, it’s just the way humans are anyway,” he said.

Honolulu Prosecuting Attorney Steve Alm said in written testimony last week that while he supports “the eventual elimination of the cash bail system,” he opposes SB 1260.

Matthew Dvonch, special counsel to the city prosecutor, said that before the bail system is abolished, Alm wants the Department of Public Safety to beef up its Intake Services Center Division to provide better supervision of those who are released into the community.

Alm also favors adopting a system of “signature bonds” in which people who are released sign for a bond amount. Those pre-trial arrestees are not required to put up cash to be released, but they are required to pay the signature bond amount if they fail to show up in court, Dvonch said.

Republican Rep. Gene Ward also opposes SB 1260, arguing that “if it ain’t broke, don’t fix it. I think what we’ve got is sufficient.”

Ward said it might make sense to reduce bail amounts so that more people can get out of jail while they wait for their cases to be resolved, but “you’ve got to have skin in the game.”

The existing correctional system with its high recidivism rate  doesn’t work, “but we’ve got nothing to replace it,” Ward said.

He said he wants more information on what kinds of bail changes have worked in other communities, and would then be open to some sort of pilot project to test out the idea in Hawaii.

But bail reform is a top priority for the Hawaii Correctional System Oversight Commission, which was created by lawmakers in 2019 to provide independent oversight of the state correctional system.

Retired Judge Ronald Ibarra, who serves on the commission, told the House Judiciary Committee in written testimony last week that the bail reform bill will help reduce costly and unnecessary pretrial incarceration.

“Ensuring the safety of those in state custody as well as envisioning potential change for the future depends on responsible population reduction and fair and reasonable bail reform,” Ibarra wrote.

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