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The battle over bail: Reform efforts fail despite ACLU study critical of state’s courts, jails

  • Mitch Roth, left, and Stanton Oshiro

The issue of bail reform appears to be dead in the state Legislature this year, despite a recent report that found Hawaii’s bail amounts are set unfairly high.

The House Committee on Public Safety on Thursday deferred action on House Bill 2221 for a year, pending a report by a task force created last year by the Legislature to examine pretrial practices and procedures in regard to criminal defendants.

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The action came two days after the Senate Committee on Public Safety, Intergovernmental and Military Affairs shelved a companion measure, Senate Bill 2860.

The bills proposed eliminating monetary bail for criminal defendants unless a court finds they’re unlikely to appear for trial. About 41 percent of the total inmate population in the Oahu community correctional system in 2016 were pretrial detainees, the bills state.

Those submitting written testimony opposing the bills include the City and County of Honolulu Prosecutor’s Office and Big Island bail bondsman Scot Ling, owner of 4Freedom LLC, who noted that bail bondsmen assume responsibility when their bonded defendants miss court dates.

“If these catch-and-release individuals fail to show up for court, who will be responsible for apprehending them?” Ling asked.

The bills were supported by the American Civil Liberties Union of Hawaii, which on Wednesday released a report called “As Much Justice As You Can Afford — Hawaii’s Accused Face an Unequal Bail System.”

The ACLU report concludes that the state’s community correctional centers — which house pretrial detainees and people convicted of misdemeanors and petty misdemeanors — are overcrowded because courts are setting bail in higher amounts than most pretrial defendants can post. It describes Hawaii’s overcrowded jails as “dismal” and “inhumane and unconstitutional.”

ACLU’s study of 1,375 cases filed in the state’s circuit courts in which criminal defendants requested a jury trial found monetary bail was required about 93 percent of the time on Oahu and 88 percent statewide. The study of cases in the first six months of 2017 concluded more than 50 percent of defendants don’t post bail, “likely because they cannot afford it.”

The study found Oahu judges set the highest bail amounts for Class C felonies, which are punishable by up to five years in prison, with bail of $20,000 or more for 65 of 243 arrestees charged with a single Class C felony, and the majority of cases with bail set at either $11,000 or $15,000.

On the Big Island, bail was generally lower, with standard bail for a single Class C felony at $2,000 and high bail at $10,000.

“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,” Joshua Wisch, ACLU of Hawaii executive director, said in a statement. “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.”

“Bail is not supposed to be punishment,” added Mateo Caballero, ACLU of Hawaii legal director. “Bail is supposed to minimize the risk of flight and danger to society while preserving the constitutional rights of the accused. … Instead, bail practices regularly cause people to waive their rights just to get out of jail. That is unjust and violates the constitution.”

The ACLU’s study said there are about 1,100 pretrial detainees in Hawaii on an average day, with incarceration costing $146 a day per person.

The Department of Public Safety’s end-of-month population report for December, the latest available, showed 397 inmates at Hawaii Community Correctional Center in Hilo — 176 percent of its operating bed capacity of 226 inmates. Pretrial detainees represented 45 percent of HCCC’s head count.

The ACLU report also pointed to what it called “extraordinarily long” stays for pretrial detainees in Hawaii who are eventually granted release under nonfinancial conditions — an average 71 days in Honolulu. It did note Big Island courts are “trying to rectify this problem” by conducting “their own mini-version of a bail study if no bail report has been prepared yet.”

Hawaii County Prosecutor Mitch Roth took issue with the ACLU report, which he said “made it seem that Hawaii is way out of whack.”

Roth pointed to a 2014 Vera Institute report, “Incarceration Trends,” showing 44 states with pretrial incarceration rates of more than 100 people per 100,000 residents, with nine of those states having rates in excess of 300 per 100,000 residents. Hawaii and five other states weren’t included in the Vera study because their systems combine prisons and jails.

Roth said given Hawaii’s 2018 U.S. Census estimate of 1.43 million population, the pretrial incarceration rate is less than 100 people per 100,000 residents.

“What it shows is that Hawaii’s numbers are really not that bad,” Roth said.

“They also make the statement that these people are waiting in custody because they just aren’t rich, because they are poor people. They’re in custody because they broke the law. Most of the time … the prosecutors are arguing against releasing people on their own recognizance because they’re a danger to society.”

Roth said other factors affecting pretrial detention length include a need for more judges and defendants seeking delays in their cases.

“Oftentimes, the defense asks for a continuance, and the court is so overburdened with other cases that they’re continuing these cases,” he said.

Stanton Oshiro, a Hilo defense attorney, said another reason for lengthy pretrial detention is because prosecutors often “overcharge” defendants for a crime more severe than the underlying act “with the intent of eventually allowing them to plead to something close to what they’re actually guilty of.”

“That happens a lot. Not always, and not with all prosecutors, but it does happen,” Oshiro said.

Oshiro said judges, prosecutors and defense lawyers statewide are discussing bail reform.

“They’re looking at the federal model, where they have signature bonds, which means defendants don’t actually have to post bail, they just have to sign their names,” he explained. “They’ve done studies and found that the number of people who don’t appear, percentage-wise and per capita, is actually no different in the federal system than it is in the state system.”

Hilo defense attorney Brian De Lima said he doesn’t think people are being kept in jail “just because they’re indigent.”

“Many times, they’re being kept in jail because of criminal history and other issues of dysfunction,” De Lima said. “I think it’s important to note that there’s a lot of merit on why judges maintain bail on certain individuals. Bail should be reasonable to ensure a person’s presence in court. And generally, judges are maintaining bail due to the fact that the defendant may have a record that doesn’t justify supervised release. I think the judges generally do a good job, from my experience, in the Third Circuit of determining when it’s appropriate to reduce bail or to authorize supervised release.”

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The report is available online at www.acluhi.org/bailstudy

Email John Burnett at jburnett@hawaiitribune-herald.com.