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Bail reform on tap in legislature

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.

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