FIXING HAWAII’S BAIL PROBLEM REQUIRES RETURN TO CORE CONSTITUTIONAL PRINCIPLES
Excerpt from Hawaii Free Press, published December 17, 2024
by James Waldron Lindblad, Bondsman, A-1 Bonding Hawaii
Hawaii's bail system is in need of reform -- most people involved in the process agree on that. Of course, the real challenge lies in determining what reforms are necessary and how to fund them. Having served as a compensated surety for criminal defendants in Hawaii for nearly 50 years, I am certain that the solution requires a return to the core constitutional principles from which we have strayed. The ACLU of Hawaii, in the Hawaii Bar Association Journal, October, 2024, makes a compelling -- and likely irrefutable -- case that reforms implemented in 2019 have not reduced pretrial incarceration, which was actually its key goal. I agree that things need to change. The challenge we face is how to achieve this while protecting public safety and ensuring that the court process remains efficient.
Hawaii does not have a "money bail" system, and if it did, it would be illegal. There is no such thing as "buying" your way out of jail here. Instead, Hawaii's statutes make it clear that bail is “signing of the recognizance by the defendant and the defendant's surety or sureties, conditioned for the appearance of the defendant at the session of a court of competent jurisdiction.”[1] This aligns with the laws of other states, which essentially treat bail as a tri-partite contract between the court, the surety (whether compensated or not) and the accused. The surety provides an enforceable guarantee that the defendant will appear, with the penalty being the amount set by the court. Courts are responsible for setting a bail amount that is "reasonably calculated" to serve the purposes for which bail is offered. [2]
The U.S. Supreme Court has emphasized that bail is not about "purchasing" freedom but rather providing the option of selecting the "jailers of his own choosing." [3] As William Blackstone famously wrote in his Commentaries, the accused are released into the “friendly custody” of a surety, rather than being sent to jail. [4] It is also important to note that the framers of both the Hawaii and U.S. Constitutions anticipated that private third parties would have the authority to arrest and return the accused to state custody in order to avoid paying a forfeiture.
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