The seemingly endless debate over bail reform in Hawaii has taken a new turn this year after a key House lawmaker declared she will block the funding needed to plan for a new jail until the state finally restructures the cash bail system that determines which arrestees are released, and which are detained.

That move by House Finance Committee Chairwoman Sylvia Luke to explicitly link the controversial issue of bail reform with plans for a new jail to replace the Oahu Community Correctional Center may turn out to be a game changer.

Earlier this month the state House passed a measure to allow many people accused of misdemeanors and petty misdemeanors to go free without posting bail while the court system decides their cases. House Bill 1567 was approved by the House in a lopsided 45-5 vote.

That same bill won preliminary approval from the Senate Public Safety, Intergovernmental and Military Affairs Committee on Tuesday, but its future is still uncertain.

Measures to overhaul Hawaii’s bail system have failed time and again at the Legislature, including bills that were killed in 2021, 2020, 2018 and 2017. Lawmakers did approve a measure in 2019 allowing judges to release some arrestees on “unsecured” bail — meaning they do not need to put up cash or security — but judges rarely, if ever, use the new law.

OCCC Oahu Community Correctional Center Dillingham side.
Plans for a new jail are being put on hold until Hawaii gets a better grip on who should be held before trial and who shouldn’t. Cory Lum/Civil Beat/2018

Luke, who is running for lieutenant governor, supercharged the bail debate this year when she rejected a request for $15 million to continue planning for a new Oahu jail. She is one of the most powerful members of the Legislature, and she declared that lawmakers must reform the state’s bail system before the jail project moves forward.

“Basically, you’re putting people in jail because they’re poor,” she said, describing how bail is used in Hawaii today. “We’re actually housing indigent individuals who have not been convicted, and because of that we need to right size the prison population before they commit to a prison, and that’s been my criticism, and we’re far from that.”

This is not a new issue for Luke, who co-sponsored a bill in 2017 to overhaul Hawaii’s bail system that also failed to pass. But Luke has a great deal of control over the state budget as the Finance Committee chairwoman, which means she is well positioned to play political hardball to force changes in the bail system.

Bail reform is an emotional issue for critics of the existing system, with some saying the current system can do harm to generations of Hawaii families.

Tiana Williams, a student at the University of Hawaii Manoa, told lawmakers Tuesday her father was charged with a non-violent offense, and he opted to stay in jail “knowing he could not afford to pay bail because he had four children at home who needed the money to put food on the table, which left my mother trying to make ends meet, going in and out of shelters.”

Tiana Williams, 22, told lawmakers Tuesday her family cycled in and out of homelessness after her father was arrested for a non-violent offense, and was unable to post bail. Williams was testifying in support of House Bill 1567, which would require people arrested for some misdemeanors and petty misdemeanors to be released without having to post bail. Screenshot/2022

“For years to come after that, my mother and father struggled to support us, and feed us,” said Williams, 22. “By ending cash bail, people will have more equal opportunity without the risk of debt, losing their jobs, homelessness, and losing custody of their children,” she said, ticking off those hardships on her fingers as she spoke to lawmakers.

The bail reform effort is focused this year on HB 1567, which began as a measure to require state judges to release without bail people who are arrested for traffic offenses, violations, non-violent misdemeanors, petty misdemeanors, and non-violent Class C felonies. Class C offenses are the least serious types of felonies, and often involve people caught with small quantities of drugs.

The proposed new law would not apply to anyone who is charged with negligent homicide, unauthorized entry into a dwelling, a violent crime or a sex offense, driving under the influence of an intoxicant, or violating a restraining order. Those people would all be required to post bail in order to win release while the courts determine the outcomes of their cases.

The bill also would not apply to: People who failed to show up for their court dates in the past two years; people who have convictions for a violent crime in the past eight years; people who were pending trial or on probation, parole or conditional release for another offense at the time of their arrest; or anyone who “presents a risk of danger to any other person or to the community, or a risk of recidivism.”

The original measure would also have authorized the director of the state Department of Public Safety to release anyone who is being held on bail of $99 or less, but that language was deleted from the most recent draft of the bill.

As the measure moved through the state House earlier this year, the House Judiciary and Hawaiian Affairs Committee tightened the restrictions in the bill by excluding any Class C felonies. That means that even if the bill passes, accused felons including low-level drug offenders would still have to post bail to win release pending their trials.

The most outspoken critic of HB 1567 in the House has been Republican Rep. Gene Ward, who warned his colleagues in a floor speech earlier this month that “with no bail, you’ve got no skin in the game, and no skin in the game means you go out and you do whatever you want to do.”

An inmate walks to another module at Oahu Community Correctional Center Jail during OCCC tour. 2019
An inmate walks from one module to another at the Oahu Community Correctional Center. It costs $219 per day to hold inmates in Hawaii correctional facilities, and as of Monday 144 prisoners were locked up to await trial for misdemeanor offenses. Cory Lum/Civil Beat/2019

“Mr. Speaker, this bill isn’t necessary, it’s contrary to all civilized society and … disincentivizes these people particularly with this smash and grab and any and all things happening in this nation. This is bad news. This is bad news,” Ward said.

Rep. Sean Quinlan, a Democrat, countered that “in this country and in this state, it is possible to go to jail for traffic offenses. Imagine you’re a low income person, you’re driving your car, you get pulled over by the police for speeding, but you’re also uninsured. Things happen, life happens, you miss your court date, and now you’ve got a bench warrant out for your arrest.”

“Now you’re going to jail, so what we’ve essentially done is criminalized poverty,” Quinlan said.

But Ward dismissed the bill as little more than an attempt to save money. “We’re jeopardizing the safety of the public by saying, ‘Hey, we don’t want to spend money on a new prison, we don’t want to spend money on keeping the prisoners in there.’ This is simply a cost-cutting mechanism.”

In fact, supporters of bail reform do often cite the high cost of locking up people who are arrested for minor offenses, but haven’t yet been convicted of anything.

The state Department of Public Safety calculates that the cost of housing an inmate in Hawaii in 2020 was $219 per day, and as of Monday the state was holding 144 people in its jails who were arrested for misdemeanor offenses and awaiting trial. It is not known how many of those prisoners would qualify for release under the latest version of HB 1567.

The state Attorney General’s Office opposes the bill along with Honolulu Prosecuting Attorney Steve Alm, who observed that even the version of the bill that emerged from the House “fails to account for the plethora of concerning charges that could be classified as non-violent misdemeanor or petty misdemeanor offenses.”

Alm cited the offenses of harassment by stalking, promoting pornography for minors and solicitation of a minor for prostitution as examples of crimes for which arrestees could be automatically released without bail if the bill becomes law.

“Although the prosecution and defense may not always agree with a judge’s ruling as it pertains to bail, the (prosecutor’s) department does believe that a judge more appropriately evaluates all the factors permitted by statute, to make a case-by-case decision,” according to Alm’s testimony.

The bill is backed by the the ACLU of Hawaii and the Hawaii Correctional System Oversight Commission, which pointed out the bill would implement one of the key recommendations from a Task Force on Pretrial Reform that was created by the Legislature itself in 2017.

That task force recommended that defendants should be released without bail for “traffic offenses, violations, non-violent petty misdemeanor and non-violent misdemeanor offenses with certain exceptions.” However, the Legislature never implemented that proposal.

Oahu Community Corrections Center OCCC.
The Department of Public Safety urgently wants to built a replacement for the Oahu Community Correctional Center, which is Hawaii’s largest jail. But the issue of bail reform may need to be resolved first. Cory Lum/Civil Beat

Corrections officials have not specifically endorsed the latest bail reform proposal, but they haven’t rejected it, either. They point out their job is to house the prisoners that are sent to them by the courts, not to decide which inmates should go free.

In response to questions about the issue, the Department of Public Safety said in a written statement that “justice reforms that place an emphasis on sentencing/bail reform, pre-trial diversion programs, expansion/development of new special courts, and other alternatives to incarceration should be pursued by policymakers with the Hawaii Judiciary and State Legislature, the appropriate entities for addressing such reforms.”

But the department is clearly concerned about anything that could jeopardize its plans to build a replacement for OCCC, an aging, overcrowded and inefficient facility.

“Because of OCCC’s deteriorating conditions and outdated design, the facility is no longer serving its intended purpose with a limited ability to provide the safe, secure, healthy and other environments for Hawaii’s inmates,” the department said in a written statement. “This is one reason why replacing OCCC with a modern facility is necessary.”

“Currently, OCCC inmates with special needs, including those who are mentally ill and infirm, as well as inmates in protective and maximum custody, cannot be properly separated from the general inmate population. In addition, OCCC cells designed for one or two inmates regularly house three to four offenders,” according to the department.

OCCC is the largest jail in the state, and a report in 2017 concluded that replacing it with a new facility could cost anywhere from $433 million to $673 million, depending on the final design. The official cost estimate to build the jail is $525 million, which originates from calculations done in 2017.

Gov. David Ige has selected a site for the new jail in Halawa, and the department has already spent $10 million on planning the new facility. This year the public safety department is requesting $15 million to continue that process, which is the planning money Luke and the House Democrats deleted from their draft of the state construction budget earlier this month.

The department is tentatively planning for a new jail with 1,012 jail beds for pretrial and other inmates, and another 393 less secure beds to house convicted felons who are soon to be released. But Luke contends corrections officials won’t really know how large the jail should be until the bail reform debate is resolved.

She argues that “if we do significant bail reform, and there’s a bail reform bill going through this year, we anticipate a lot of these pretrial detainees not being in jail.”

“If we give them the $15 million, that means they’re that much closer to building out a jail. So, we don’t think it’s timely yet, so that’s why it’s important for us to reject,” Luke said.

The Department of Public Safety, meanwhile, says it needs “a modern, state-of-the-art facility (that) will improve conditions for inmates and staff and broaden programming and treatment services and capabilities that will help prepare inmates to successfully return to the community.”

“Providing a nurturing, healthy, and humane environment while in detention is crucial to preparing them for successful reintegration into society,” the department said in its statement. “Since the majority of all inmates (95%) are eventually released, conditions within OCCC must support their successful re-entry into Hawaiian society.”

HB 1567 now goes to the Senate Judiciary Committee for further consideration.

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