Hawaii Should Support Cash Bail Reform

Is it fair? Is it just? Is it humane? That’s what we should be asking ourselves as we lock innocent people away.

Everyone in our country has the implied constitutional right to innocence until they are tried and found guilty by a jury of their peers. This belief has been enshrined within the American identity for years through case law and amendments to the Constitution. Yet, by implementing a bail system here in America, we have forgotten this foundational idea.

House Bill 1567 is a bill that is expected to go into law if Gov. David Ige does not veto it. The bill aims to eliminate bail for nonviolent misdemeanors and class C felonies. Opposition to this bill arises from the fear that eliminating bail for individuals accused of committing a crime would increase crime and make our communities unsafe.

However, despite these concerns, this bill would serve as a stepping stone to a more fair, just, and rehabilitative criminal justice system here in Hawaii. Although the bill does have shortcomings, it provides a foundation for other reforms like Senate Bill 2778, which would allow for the release of all pretrial defendants unless they pose a threat to the community.

Although HB 1567 has just been passed this session, the state has known for years that there is a need for reform. In 2016, the HCR 85 Task Force investigated the criminal justice system here in Hawaii, and they concluded “mass incarceration does not work” and a “rehabilitative approach is the only sustainable way to make our communities safe.”

Despite the conclusion of the report, Hawaii continues to perpetuate a punitive, rather than a rehabilitative, criminal justice system. Besides HB 1567, the recommendations laid out in the report have largely been ignored.

Punishing The Poor

First, let’s address the bill and its language. Although this bill is designed to eliminate bail for nonviolent offenders, there are still various exceptions to a person not being issued bail.

If “the defendant presents a risk of danger to any other person or to the community,” “the defendant has at least one prior conviction for a misdemeanor crime of violence or felony crime of violence within the last eight years,” or “the defendant was awaiting trial or sentencing at the time of arrest,” then bail would still be issued.

The vagueness of the conditions and other safeguards make it so that judges and prosecutors could still issue bail to most people. So, realistically many detainees could still be issued bail. Despite claims to the contrary, this bill isn’t going to be as drastic or radical as people claim.

Next, let’s look at actual research into bail reform. Bail is not a system that keeps the community safe or ensures that people come back to court. It is a system that targets the financially vulnerable and keeps them in the criminal justice system, often increasing their chances of committing new crimes.

A 2013 study commissioned by the Laura and John Arnold Foundation found that, “When held for 2-3 days, low risk defendants were almost 40% more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours.”

If people truly care about public safety, rather than advocating for bail to remain as it currently is, they should be advocating for keeping people out of jail through the elimination of bail being a condition of release.

A 2008 study and a 2020 study conducted by Francesco Drago, Roberto Galbiati, and Pietro Vertova and Santiago Tobón, respectively, both found that overcrowding within prisons — which is a constant issue in Hawaii’s jails — increases recidivism rates. This data supports the need for bail reforms, not complacency, when it comes to protecting the public.

This bill isn’t going to be as drastic or radical as people claim.

Looking at this issue from a more ethical perspective, the bail system we currently have in place simply punishes people for being poor. In a country where everyone is presumed innocent unless and until proven guilty, the bail system remains an everlasting bastion for the opposite.

Despite detainees not being proven guilty by a jury of their peers, the bail system forces them into jail because they cannot afford to pay. Keeping people in jail awaiting trial, which bail is designed to do, only keeps the poor locked up.

In contrast, the people who are accused of the exact same crime but have money, get to be released. Even if found guilty, many people will serve no jail time or will spend more time in jail than what their sentences call for.

While people proclaim that bail keeps the community safe and reduces crime, in reality it punishes people for being poor and makes the communities more unsafe. Don’t let a chance to change this system go to waste and please support HB 1567, as well as any subsequent bills that move our criminal justice system towards one that focuses on rehabilitation, not incarceration.