Innocent until proven guilty. It’s one of the cornerstones of the American criminal justice system. And to some, it can be a source of frustration and anger.
How to achieve a balance between public safety and rights of the accused before trial? Police, public safety officials, prosecutors, defense attorneys and judges grapple with tough questions daily — bail or not?
If so, how much and under what conditions? Are there other options available that would be more safe and appropriate?
Many recognized the process needed another look and the 2017 Legislature passed a resolution (HCR 134) to form a Criminal Pretrial Task Force.
The task force was united in the belief that the changes recommended be grounded in maximizing public safety, ensuring that defendants show up in court, and enabling the more equitable release of the accused, who are presumed innocent. In short, the goal was to advance a safer and fairer pretrial system for all.
Our 31-member statewide task force — including top leaders from the above agencies, as well as legislators, representatives of the Office of Hawaiian Affairs, Department of Health and the public — spent the last year scrutinizing the current system. We solicited and received extensive input from the bail bonds industry, ACLU, victim’s rights and criminal justice reform advocates, and the general public. We also pored over multiple local and national studies, examined best practices and invited national experts to share results from other jurisdictions. We examined every stage from arrest to judicial decision-making and everything in between.
A key area of focus was bail versus jail until trial, and the laws, resources and alternatives that are or should be available.
The purpose of bail is to ensure that defendants show up in court, not to impose punishment up front. The amount should be based on the alleged crime, along with a thorough assessment of risks the individual poses to the community, and the defendant’s financial situation. Those posing little to no risk may be safely released, while those who will not appear in court or who pose a danger should be detained.
Believe it or not, there are people sitting in jail for non-violent petty misdemeanors and certain traffic offenses who pose very little risk to the community, but cannot afford bail. After spending even a brief time in jail, they may have lost their jobs, benefits and perhaps their homes and custody of their children. Those who needed substance-abuse treatment likely didn’t get it.
Our discussions were intense but respectful. Ultimately, the task force was united in ensuring the recommendations were based on validated data and evidence to keep the public safe. Changes in practice could also lower costs to the state, counties and taxpayers. Moreover, these improved practices are wholly consistent with the most basic of our constitutional principles that all persons are presumed innocent until proven guilty beyond a reasonable doubt.
Key recommendations include:
>> Broader discretion for police officers to issue citations for low- level offenses.
>> Better risk assessment tools and processes to quickly obtain needed information and share the results with judges, prosecutors and attorneys involved in the case.
>> Consideration for the victim’s concerns, and determination of appropriate supervision or detention of defendants.
>> A more robust continuum of options for judges and others to consider when determining the right level and type of supervision of defendants. Examples include electronic monitoring, home detention, clean-and-sober residences and treatment programs.
>> Law changes to enable defendants to be released on their own recognizance, and any non-financial condition needed to ensure they appear in court. Key exceptions would be for violent crimes or history thereof, prior non-appearance in court, or existing involvement in a criminal case.
While there is no magic bullet, by working collaboratively, practical and effective solutions will emerge to create a much fairer and safer pretrial system for Hawaii.
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The full Hawaii Criminal Pretrial Reform report is on the Judiciary’s website (see www.808ne.ws/2SjhffO Opens in a new tab).
Rom Trader, a First Circuit Court judge, chaired the Criminal Pretrial Task Force.
