SB 725: RELATING TO BAIL.

A BILL FOR AN ACT

relating to bail.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The legislature finds that according to ACLU Hawaiʻi, "research shows that money bail has no correlation with public safety".  When a defendant cannot afford bail, that defendant is detained pretrial.  A few days in jail can lead to a defendant losing a job or housing, or missing school or important payments.  Pretrial detention should therefore be employed only as necessary to ensure the safety of the public or the defendant's appearance in court.

     The legislature also finds that in 2019, the legislature enacted Act 179, Session Laws of Hawaii 2019 (Act 179), which aimed to address these concerns by overhauling the bail system.  Among other things, Act 179 required the release of a defendant under the least restrictive conditions necessary to ensure the defendant's appearance and the protection of the public and required monetary bail to be set in reasonable amounts based on all available information, including the defendant's ability to pay.  These reforms sought to produce a fairer criminal justice system and to relieve overcrowding in the State's prisons.

     The legislature further finds that over five years since the enactment of Act 179, these reforms do not appear to have had their intended effect.  According to Jongwook "Wookie" Kim and Samantha McNichols, Criminal justice deep dive:  a closer look at Hawaiʻi bail statutes and practices, 28 Hawaii Bar Journal (2024), there has been "no significant reduction" in the number of people detained pretrial since 2019.  While the number of pretrial detainees has remained static, the share of pretrial detainees among the State's incarcerated population has risen by over eight per cent.  As of July 2024, "61.7 [per cent] of the population detained at the Oahu Community Correctional Center were pretrial detainees".

     The legislature further finds that these outcomes have largely remained unchanged because judicial procedures regarding bail have remained the same since 2019, despite Act 179's efforts to change them.  In testimony on the bill that became Act 179, the judiciary reported that "little, if any, inquiry is made concerning the defendant's financial circumstances" during bail hearings.  As of 2024, according to Kim and McNichols, it was still the case that "[a] person's ability to pay was not assessed on the record".  This failure to make findings on the record is already causing downstream problems for the courts.  In State v. Carter, 546 P.3d 1210 (2024), the intermediate court of appeals recently reversed the first circuit court for making "no findings" assessing a defendant's ability to pay bail, or explaining why a bail amount was reasonable based on all available evidence of the defendant's financial circumstances.

     The legislature further finds that stronger provisions are necessary to ensure that Act 179 lives up to its full potential. A handful of other jurisdictions – including Michigan; Massachusetts; Cook County, Illinois; and Harris County, Texas –  have rules or judicial decisions which require judges to make findings on the record regarding a defendant's ability to pay.

     Accordingly, the purpose of this Act is to require judges to make findings regarding a defendant's ability to afford bail, thereby creating a fairer pretrial system and ensuring that a sufficient record is developed to enable meaningful appellate review of bail decisions.

     SECTION 2.  Section 804-9, Hawaii Revised Statutes, is amended to read as follows:

     "§804-9  Amount.  (a)  The amount of bail rests in the discretion of the [justice or judge or the officers named in section 804-5] bail judge and shall be set in a reasonable amount based upon all available information, including the offense alleged, the possible punishment upon conviction, and the defendant's financial ability to afford bail.  The bail amount should be so determined as not to suffer the wealthy to escape by the payment of a pecuniary penalty, nor to render the privilege useless to the poor.

     (b)  When the bail judge imposes monetary bail as a condition of release, the judge shall make findings on the record that:

     (1)  The judge has considered the defendant's financial ability to afford bail and determined that the defendant is able to pay the amount of monetary bail required;

     (2)  The judge adopts or rejects the findings of the intake service center made pursuant to section 353-10(b)(8) regarding the defendant's financial ability to afford bail; provided that if the judge rejects the findings, the judge shall state on the record the specific evidence the judge is relying upon to reject the findings;

     (3)  Explain how the bail amount was calculated; and

     (4)  Explain why no alternative, less restrictive financial or non-financial restrictions will suffice to ensure the defendant's presence in court and the protection of the public.

     (c)  If the bail judge sets the bail amount at an amount that exceeds the defendant's ability to pay, the judge shall explain on the record why the bond amount is the lowest amount necessary to reasonably ensure the safety of the public and the defendant's appearance in court.

     (d)  For the purposes of this section, "bail judge" means the justice, judge, or officers named in section 804-5."

     SECTION 3.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 4.  This Act shall take effect upon its approval.

Report Title:

Judges; Bail; Findings

Description:

Requires judges to make certain findings regarding a defendant's ability to afford bail.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.