TIME TO PUSH THE RESET BUTTON ON HAWAII LEGISLATIVE BAIL REFORM
When a legislator who sponsors a bill subsequently turns around and asks the governor to veto it, you know something is very wrong. Such is the case with Hawaii House Bill 1567, which was authored by Rep. Scot Matayoshi (D-District 49) and approved by the state legislature last month.
The Hawaii Constitution specifically allows judges to not require bail, clearly indicating it may dispensed with if a court is reasonably satisfied that a defendant will appear as ordered. Exceptions are made in cases where an individual has been charged with an offense punishable by life imprisonment. HB-1567 clearly conflicts with that provision and substitutes legislative line drawing in place of required judicial discretion. The bill would also eliminate money bail, in contradiction to the state constitution, which specifically delineates when bail is not allowed.
Without bail, an individual must remain in jail. But when bail is posted, there is greater incentive for appearance and recovery of a defendant. Numerous studies have shown that requiring bail reduces long-term fugitive rates.
Ostensibly, HB-1567 would solve the injustice of the poor languishing in jail. This despite clear evidence indicating that individuals who remain incarcerated are twice as dangerous as those who post bail and typically have a combination of ten prior strikes, including committing new crimes while out on bail and failing to appear in court.
HB-1567 contains a wide variety of sensible exceptions to zero bail, such as prior violent crimes, intended to address valid concerns. However, it also sets an exceptionally low bar for judges, allowing them to impose bail simply if a defendant presents a risk of danger to any other person or to the community. In effect, judges would be able to impose bail on any defendant because everyone presents “a risk of danger” to a certain degree. These exceptions simply swallow the rule, meaning the legislation would do absolutely nothing to advance the cause of justice for the poor in our system.
Lawmakers in Hawaii would be wise to look at other states that sought to protect the poor, while also increasing public safety in their bail systems. For years, lawsuits filed in both federal and state courts have led to due process improvements for indigent defendants. In the process, arbitrary practices have been eliminated, while individualized consideration has increased.
As for increasing public safety, legislatures in Delaware, Georgia, Missouri, Texas and Virginia have introduced bills or passed laws that disqualify an individual from receiving free bail under certain circumstances substantiated by vetted research. Hawaii might also wish to examine Ohio's recent constitutional amendment, which explicitly requires consideration of public safety in addition to appearance.
If HB-1567 is signed into law and somehow passes constitutional muster, it will cause judges who have previously imposed bail to have their orders overruled. This will have overwhelmingly negative consequences. Judges who felt the need to order the incarceration of defendants will be forced to release them -- and do so without requiring them to post bail. Without "skin in the game," these individuals will have no incentive to return to court. We can expect an increase in pretrial crime, while justice for victims of crime will be diminished when defendants skip court without penalty.
Despite good intentions, Rep. Matayoshi's HB-1567 is bad legislation and so fundamentally flawed, that it would be impossible to be fixed. We can only hope that Governor Ige listens to the advice of its author and vetoes this disaster of a bill.