“In practice, the way bail works in Hawaii means that if you’re wealthy you get out of jail while you wait for trial, and if you aren’t – you don’t. Almost half of the people in Hawaii jails have not been convicted of the crime for which they’ve been accused – they’re only in jail because they can’t afford bail.” – Joshua Wisch, ACLU of Hawai’i Executive Director
In January 2018, ACLU Hawaii released a report on the need for bail reform in Hawaii titled “As Much Justice As You Can Afford–Hawaiiʻs Accused Face an Unequal Bail System.” The report was based on all cases filed in circuit court during the first semester of 2017 and found that a driving factor of overcrowding in Hawaii jails is due to pretrial incarceration. Here are some eye-opening statistics:
– 12 percent of people were released on their own recognizance or supervised release
– Circuit courts set money bail as a condition of release in 88 percent of cases, but only 44 percent were able to eventually post the amount of bail set by the court
– Bail is supposed to be set based on whether the arrestee is a flight risk, poses a danger to society, and ability to pay. However, in 91 percent of Hawaii cases, initial bail amount is equivalent to the amount set by the police in the arrest warrant, which is based solely only on the crime charged
– The average bail amount for a class C felony on Oahu is $20,000
– 69 percent of the arrestees who changed their pleas from innocent to guilty or no contest did so while held in jail, primarily because they could not afford bail
– Compared to other jails nationwide, Hawaii has long lengths of stay for pre-trial arrestees. Even arrestees who are ultimately released without having to pay bail, are held in jail for an average of 85 to 97 days, compared to an average of 15 days on the mainland
The study concludes that “detention or release should not be conditioned on an individual’s wealth or income. Reliance on money bail incarcerates people solely because of their poverty, ultimately creating devastating and reverberating consequences for arrestees, their families, and their communities.”
Rep. Kaniela Ing agrees that the current bail system is in need of improvement. “Right now, in the current system, if you were rich, you are innocent until you’re proven guilty, but if you are from a poor community, or like most of us who are living paycheck to paycheck, you were going to get detained even before you’re deemed to be guilty,” he said.
Ing helped introduce HB 1996, which proposes the use of a risk assessment process to determine whether offenders with no history of violence or flight risk concerns could be released from jail until a trial.
Opposers to the bill believe it is unnecessary because judges are given pre-trial reports and determine whether to release the defendant or set a bail amount.
“You can’t necessarily look at it from the perspective of what the person can afford or not afford. You have to look at it from the perspective of what are the risks?” said Randall Lee, assistant professor at Hawaii Pacific University, former judge of 10 years, and former prosecutor of 25 years. “The judge could reduce the bail. The judge could put someone on supervised release. They could put them on house arrest with electronic monitoring. They can put them in a drug program or a rehabilitation program,” said Lee.
Although judges do have the capability to make decisions based on each individual, this simply isn’t the standard operating procedure in Hawaii as many judges admit to setting bail at a particular amount based solely on the charged offense, according to the ACLU report.
Others worry that career criminals who commit non-violent crimes such as theft would be easily let off the hook because they aren’t considered a flight risk or danger to society.
It is clear that the bail system isn’t perfect, but what isn’t so clear is the best way to fix it. Perhaps, looking at practices that have worked in other jurisdictions would guide Hawaii on a path to bail reform.
Research shows that in lieu of money bail, phone call reminders increase appearance rates by as much as 42 percent and mail reminders can increase appearance rates by as much as 33 percent.
In D.C., up to 95 percent of arrestees are on non-financial release, yet court appearance rates hover at 87 percent or higher and arrest rates are no more than 12 percent over the last six years. They spend $18 per day in supervising costs per arrestee, compared to $146 per day to detain someone pretrial in Hawaii.