More than three years ago, a panel of Hawaii’s police chiefs, judges, prosecutors and defense lawyers came up with a package of proposals to overhaul the pretrial bail system. Their stated mission was to increase public safety while also reducing the number of inmates locked up in the state’s chronically overcrowded jails.

On Monday, Gov. David Ige is expected to announce he may veto one of that panel’s most ambitious proposals, approved by the Legislature this year as House Bill 1567. That measure would require that judges release without bail some of the people who are arrested for low-level, non-violent offenses.

Passage of the bill this year and the events leading up to Ige’s anticipated veto dramatically illustrate the chasm between reformers who want to overhaul Hawaii’s troubled correctional system, and a public that fears changes to Hawaii’s system of punishing crime.

Advocates for criminal justice reform regard the bail bill as a modest adjustment to the existing system because relatively few people were expected to qualify for release without bail under the bill. As Community Alliance on Prisons Coordinator Kat Brady put it, it was a “first step.”

But the public uproar over the bill after it passed last month startled — and stung — some lawmakers. If Ige does veto the bill, it seems unlikely the Legislature will rush to pass anything like it anytime soon.

Demonstrators hold signs fronting the OCCC Oahu Community Correctional Center.
Demonstrators seeking reforms in the correctional system hold signs fronting the Oahu Community Correctional Center. A bill to release low-level, non-violent offenders has drawn criticism from law enforcement and the county mayors. Cory Lum/Civil Beat/2022

Bail reform is not a new issue at the state Capitol. Lawmakers considered bills on the subject for five out of the last six years, and the language in HB 1567 closely tracks one of a long list of changes proposed by the Criminal Pretrial Task Force in 2018.

That task force was created by the Legislature and convened by state Supreme Court Chief Justice Mark Recktenwald. The panel included the four county police chiefs, four county prosecutors, five state judges and five criminal defense lawyers, and it spent a year studying issues surrounding bail.

Among other proposals, the final task force report recommended that for non-violent petty misdemeanor and misdemeanor offenses, as well as traffic offenses and violations, cash bail should be eliminated and defendants should be released without bail “with certain exceptions.”

“Many jurisdictions across the nation have shifted away from money bail systems and have instead adopted risk-based systems,” according to the final task force report. “Defendants are released based on the risks they present for non-appearance and recidivism, rather than their financial circumstances.”

Apart from the cost savings and practical benefits of reducing the number of inmates in Hawaii’s overcrowded jails, critics of the existing system say bail reform would advance the bedrock principle of equal treatment under the law.

Cash bail allows people who have been arrested but not convicted to win release while they await trial, rather than sitting in jail for long stretches while their cases are resolved. Wealthy and middle-class defendants can usually produce the required cash and go free. Poor people often cannot.

“Historically in recent and current American criminal justice, the liberty interests of poor and racial minority criminal suspects have not been taken at all seriously,” said David Johnson, a sociology professor at University of Hawaii who specializes in criminal justice issues.

In the overwhelming majority of pretrial jail detentions, it is poor people who cannot pay to get out, which allows many people to turn a blind eye to the issue, Johnson said.

“If there was a liberty interest for you, or me, or other middle class folk, or of elites in politics or business or government, the liberty interests would be the subject of much more concern, and this sort of thing simply wouldn’t be allowed to happen,” he said.

The Legislature took a cautious approach, and 20 separate provisions were written into the bill to restrict the number of people who could be released without bail under the proposed new law.

For example, the bill does not apply to anyone who failed to show up for court in the past two years, or people who were pending trial or on probation, parole or conditional release for another offense at the time of their arrest. It does not apply to people charged with sex offenses or violent crimes, or people with convictions for a violent crime in the past eight years.

Nor does it apply to anyone who is charged with negligent homicide, unauthorized entry into a dwelling, driving under the influence of an intoxicant, or violating a restraining order. All of those people would be required to post bail in order to win release while the courts determine the outcomes of their cases.

Lawmakers also added an element that was not in the task force recommendation: The final version of the bill allowed for release without bail of some defendants who are arrested for non-violent Class C felonies, which are the least serious felony offenses. Felony drug offenders were specifically excluded, meaning they would still have to post bail.

The bill also has catch-all language to give judges the authority to require bail for anyone who “presents a risk of danger to any other person or to the community, or a risk of recidivism.”

Tiana Williams, a student at the University of Hawaii at Manoa, testified this spring in support of House Bill 1567, which would allow people arrested for some minor, non-violent offenses to be released without bail. It appears likely that Gov. David Ige will veto the bill. Screenshot/2022

It is not known how many prisoners could be released if the bill were signed into law, but only about 10% of the current pretrial population of about 1,100 inmates are being held for misdemeanor offenses. The bill would apply to a fraction of those people as well as an unknown number of low-level felons.

The billed passed with votes of 18-7 in the Senate and 45-6 in the House, but there was a surge in television news coverage of the measure in the weeks that followed, including interviews with a retired police officer, a bail bondsman, and a lobbyist for retailers.

Some critics predicted it would “create more crime.” Another described the bill as “a win for criminals.” One protester at the Capitol asserted that “if they can do the crime, they should pay the time,” falsely suggesting that bail is punishment, and ignoring the fact that the bill applies only to people who haven’t yet been convicted.

Honolulu Mayor Rick Blangiardi told reporters he was appalled the bail bill had passed, and he repeatedly criticized it in media interviews after session ended. He also lobbied Ige directly to veto the bill, and predicted after his meeting with the governor that “I don’t think it’s got a snowball’s chance in hell of passing.”

Blangiardi also asserted the public alarm at the bail bill was part of something bigger.

At a press conference with the other county mayors to call for a veto of the bail bill, Blangiardi declared: “In reality, this a major effort if you will, a statement by us to our people about our commitment to public safety and the priority that it is. It’s also a statement about our support of our police department, and the future of our cities.”

Hawaii County Mayor Mitch Roth said in an interview last week that the “collateral damages would be huge” from the bill.

“What they are trying to do is already in place. Judges already are letting people out for minor offenses. They’re not holding first-time offenders for these minor offenses,” he said. This bill allows “people who have broken the laws numerous times to be released without holding them.”

“It doesn’t take into account victims’ fears … and it further erodes the trust in the criminal justice system, which has already been eroding in the last several years as the state, the Judiciary, has made a conscious effort to release as many people as they can from the criminal justice system,” said Roth, a former county prosecutor.

Lawmakers heard the outcry, and some quickly had second thoughts. House Judiciary Vice Chairman Scot Matayoshi, who introduced the bill and helped work out the final draft, wrote a letter to Ige just 16 days after the measure passed to urge the governor to veto it.

Matayoshi wrote in his letter he still believes Hawaii’s bail system is unfair because it requires many poor people to remain in jail, while people of greater means charged with exactly the same offenses can post bail and go free while they await trial. He also cited the overcrowded conditions in Hawaii jails, and the high cost of jailing people, which averages $219 per day.

However, he added: “I respect the concerns that are being raised by opponents of HB 1567. The issue of bail reform in Hawaii obviously requires more scrutiny and public outreach.”

Matayoshi said in an interview that the bill itself needs to be restructured, and the Legislature may not be ready to take up the issue again next year.

Governor David Ige speaks during a press conference on Covid-19 at the Captiol.
The state Attorney General’s Office opposed House Bill 1567 throughout the session this year, which suggests Gov. David Ige may be inclined to veto the measure. Cory Lum/Civil Beat/2022

Another clue that Ige may veto the measure is his Attorney General’s Office opposed the measure. Written testimony from that office said the bill was premature, and it “may not adequately address a number of important interests, including the need to secure the appearance of defendants and to protect the public.”

Senate Judiciary Committee Chairman Karl Rhoads, who helped move the measure through the state Senate, said he is baffled by the outcry.

“My feeling is this is some sort of national campaign, because it’s gotten an awful lot of attention for how little it actually does. It feels like a Republican talking point to me,” Rhoads said. “It has gotten so much attention, and I’m looking at the language of the bill, and I just don’t see it.”

The bill applies only to people held before trial for minor, non-violent crimes, so most arrestees who would be released without bail would be released immediately anyway if convicted, he said. In other words, the critics are upset about the timing of releasing people who haven’t been convicted, and will get out of jail soon no matter what.

“It also feels to me like most people just don’t understand it, including some people who should,” Rhoads said.

Some critics of the bill seem to believe bail is a punishment, he said, when in it is actually a tool to ensure people show up for their court dates.

Meanwhile, the Oahu Community Correctional Center has an operational bed capacity of 954, and was holding 1,107 prisoners as of Monday, with some inmates sleeping on floors. The Hawaii Community Correctional Center in Hilo has an operational capacity of 226 inmates, and was holding 317.

Mark Patterson, chairman of the Hawaii Correctional Systems Oversight Commission, believes the bill is a necessary step toward larger reforms of the criminal justice system. The commission, which includes two retired judges, a former director of Department of Public Safety and a former deputy director, wrote to Ige to ask that he sign the bill.

“It’s too easy to dump a body in (the Department of) Public Safety,” said Patterson, who is a former corrections captain. “The prosecutors, the mayors, the police forces, they don’t want to think outside of just having to dump the body.”

Patterson said the bail bill “will force everyone to start thinking of what are the alternatives, and move in that direction, because if you’re not forced to move in that direction, you think that (jail) is the final answer.”

“It’s too easy to dump a body, and it’s harder to care,” he said.

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