Bail reform on tap in legislature

  • Mitch Roth
  • Rom Trader

A task force established to examine pretrial detention for criminal defendants has recommended eliminating bail for nonviolent offenders charged with misdemeanors and petty misdemeanors but stopped short of eliminating cash bail altogether.

That’s what the chairman of the panel, former Honolulu Circuit Judge Rom Trader, who was recently appointed as a federal magistrate judge, told legislators from each house’s judiciary and public safety committees on Jan. 22 at the state capitol in Honolulu.


Trader said the purpose of bail “is at the core of what we sought to try to address” and compared it to “a three-legged stool.”

“The things that bail was designed to address is to get people to appear in court, as they’re supposed to,” Trader said. “It’s also to ensure that people don’t go out there and commit further crimes, and they don’t pose a danger of the community or anyone else out there. That’s really the purpose of it. It is not punishment up front, basically where someone is arrested and they remain locked up until their case, essentially, is adjudicated.

“When we look at how bail decisions are made, how can we make objective and informed decisions, who can be safely released and who are those who cannot? … What is the information that relates to the risk that those people present, as far as risk of their nonappearance in court, risk of them committing another crimes and risk of them posing a danger to others in the community?”

A number of bills involving bail have been introduced this session including companion measures Senate Bill 1421 and House Bill 1289 which would, “with certain exceptions, eliminate the use of monetary bail and require defendants to be released on their own recognizance for traffic offenses, violations, nonviolent petty misdemeanor and nonviolent misdemeanor offenses.”

Either bill, if passed in its current form, would also give police officers the discretion to cite rather than arrest individuals for a nonviolent Class C felony or any misdemeanor or petty misdemeanor provided the officer reasonably believes the individual will appear in court as directed, the suspect has no outstanding arrest warrants and the offense doesn’t include domestic violence, sexual assault or robbery.

Both passed their first readings Jan. 24. Big Island senators Lorraine Inouye, Kai Kahele and Dru Kanuha were among sponsors of the Senate measure, while Puna Rep. Joy San Buenaventura is a House introducer.

There is a national discussion about elimination of cash bail. California last year became the first state to entirely scrap cash bail, although New Jersey passed a law in 2017 that eliminated bail for most criminal defendants.

According to proponents of eliminating the bail system, a monetary outlay for pretrial release unfairly targets indigent defendants and overburdens jails with pretrial detainees.

In Hawaii, another concern is the age and overcrowded conditions of community correctional centers in each county, which, while operated by the state, are the local equivalent of county jails. An entirely new, larger jail for Oahu is being considered, at a preliminary price tag of $525 million, and $5 million is in Gov. David Ige’s proposed budget for planning of a new Oahu Community Correctional Center. And Rep. Gregg Takayama, the House public safety chairman, has introduced legislation to instead purchase the Honolulu Federal Detention Center to replace OCCC.

Takayama also told the Tribune-Herald last week that long-awaited construction of additional inmate housing at Hawaii Community Correctional Center in Hilo could be forthcoming.

Legislators in 2016 approved $21 million for new inmate housing at HCCC. The funding, which would have to be released by Gov. David Ige for construction to occur, would cover housing, a new support building and electronic and security upgrades for the overcrowded jail.

The current capital improvement budget contains a request by DPS for $8.1 million for new medium-security housing at HCCC.

In his State of the Judiciary address to legislators last week, Hawaii Chief Justice Mark Recktenwald referred to the work of the the task force on pretrial detention and a second on prison reform as significant developments underway to reform Hawaii’s criminal justice system.

Recktenwald noted a new electronic reminder system on the neighbor islands, which enables defendants in criminal cases to get text reminders about their court dates, which Trader told legislators should be instituted statewide, comparing it to reminders from a doctor’s office.

“Even for us most disorganized types, that’s enough to get us to show up at the right time,” Trader said.

Hawaii County Prosecutor Mitch Roth attended the legislative briefings by both task forces. He said the need for jail upgrades is real but has misgivings about eliminating cash bail to reduce the jail population.

“In Hawaii County, especially, people have the right to have a bail hearing from the get-go,” Roth said. “I’m pretty sure our state has one of the lowest rate of pretrial detainees in the nation.”

Statistics compiled by the nonprofit think tank Vera Institute for Justice back Roth’s assertion. According to its study, in 2015, Hawaii had the fourth-lowest number of pretrial detainees per 100,000 population, 115, trailing only Rhode Island, Vermont and Minnesota.

New Mexico had the largest number of pretrial detainees per 100,000 people, 462, followed by Louisiana with 455.

“There are things we can do to improve the system, but just throwing away cash bail is not the answer,” he said. “By doing that, you put the community at risk, and the rewards are minimal. My worry is that we’ll adopt a system without putting all the necessary safeguards in place — for example, the drug treatment facilities, the mental health treatment, and legitimate pretrial assessment that takes into account the dangerousness of individuals, rather than just if they’re going to show in court. Because if you have somebody let out who’s going to kill somebody, that’s not a safe situation.


“You just can’t go do away with money bail without having all the other pieces in place. And right now, we don’t have them in place.”

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