Hawai’i Legislature Going Down Precarious “End Cash Bail” Road Again as New York Prepares to Further Roll-Back End Cash Bail Reform Law on April 1

Hawai’i Legislature Going Down Precarious “End Cash Bail” Road Again as New York Prepares to Further Roll-Back End Cash Bail Reform Law on April 1

There was a great policy debate about bail reform last year in Hawai’i that turned out to be just that—a debate.  That is because the Governor ultimately vetoed the proposed bail reform legislation at the request of the legislative sponsor.  That legislation was based largely on the now-clearly-failed New York “end money bail” model.  Well, bail reform is back in the form of House Bill 1336 – an even more aggressive and bolder effort to end cash bail for more defendants than the legislation would have done last year.

Unfortunately, the debate in Hawai’i has started up once again, with the House having already snuck out House Bill 1336 on a vote of 32 yes votes to 19 no votes with little fanfare or media coverage.

This legislation can be described as a no money bail law because it eliminates the law of bail by sufficient sureties.  It replaces bail with the right to release—on a bail everyone can afford, mostly $0.  The Supreme Court of Hawai‘i has stated that “bail is not excessive merely because [an] arrestee is unable to pay it, ‘but he is entitled to an opportunity to make it in a reasonable amount.”  Sakamoto v. Won Bae Chang, 56 Haw. 447, 451 (1975)(emphasis added).  This legislation reverses that result and settled law in Hawai’i that dates back over 100+ years.

What is lost in all of this is that bail by sufficient sureties also empowers the People of the State of Hawaii and victims of crime to ask that the financial guarantee be sufficient enough to guarantee appearance in court as a matter of fact and law.  That is what bail is all about, at least according to the U.S. Supreme Court in Stack v. Boyle, 342 U.S. 1 (1951) and the Hawai’i Supreme Court in Sakamoto.  That is all no more, under House Bill 1336.  The defendant WILL AFFORD HIS BAIL regardless of what the People of Hawai’i or victims of crime have to say about that.

The absolute right to release on a bail that the legislation says “shall be in an amount that the person is able to afford” is all that remains, with the limited categories and circumstances where today the courts are able to simply deny bail (called preventative detention).  To add insult to injury, the legislation makes it more difficult for prosecutors to prove the need for preventative detention, making it less likely preventative detention may be used as an alternative to a bail that is sufficient but that a defendant cannot afford. The legislation requires now a more specific showing of a specific or articulable person to whom the defendant is a danger (rather than general harm) or proving the defendant will “willfully” abscond rather than just take off.

Don’t let us convince you this is a problem.  Review the opposition statements from a wide variety of groups.  The Judiciary, State of Hawai’i issued a statement of opposition as follows: “…the Judiciary opposes the bill as currently written as it is directly in contradiction to the provisions of Act 179 and endangers public safety.”  It is also important to point out that the State Attorney General also opposes this legislation for various reasons.

New York already went down this road, making a list of end cash bail offenses and watching the recidivists among that group become more emboldened by not being jammed up in jail.  Mayor Eric Adams is arguing that there are a few thousand violent recidivists wreaking havoc on New York City, who are taking advantage of the bail reform laws.   Two-roll backs of bail reform ago, everyone thought it would work.  But it didn’t.  And now Governor Kathy Hochul recently announced that the law will be rolled back a third time as part of the passage of the annual budget on or before April 1, 2023.  Of course, closer to Hawai’i, the end cash bail/zero bail reform for certain offenses in Yolo County, California dramatically increased crime.

It appears everyone seems to get it—these zero bail reforms have unfortunately helped recidivist defendants continue in their recidivism, to not face punishment but to also not get the help that they need.  It also turns out that judges were not using bail excessively—they were using it when repeat, violent criminals who do skip court came before them, rich or poor.  Unfortunately, the Hawai’i legislature wrongly believes that an absolute right to release is going to strengthen the teeth of criminal enforcement and thus deter crime.  That turned out not to be the case in New York and will not be the case in Hawai’i if House Bill 1336 becomes law.