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HB127
HOUSE OF REPRESENTATIVES
H.B. NO.
127
THIRTY-THIRD LEGISLATURE, 2025
STATE OF HAWAII
A BILL FOR AN ACT
RELATING
TO PRETRIAL RELEASE
.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
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SECTION 1.
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The legislature finds that the right to
physical liberty is one of the foundational principles of the United States
Constitution.
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In
United States v.
Salerno
, 481 U.S. 739 (1987), the United States Supreme Court unequivocally
stated that "[i]n our society, liberty is the norm, and detention prior to
trial or without trial is the carefully limited exception".
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As outlined in the 2018 final report
of the criminal pretrial task force, convened by the Hawaii state judiciary
pursuant to House Concurrent Resolution No. 134, H.D. 1, Regular Session of
2017, the right to liberty is also supported by the most basic constitutional
principles of presumption of innocence, due process, equal protection, the
right to counsel, and the right to confrontation.
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The legislature finds that the
current use of cash bail is widely understood to disadvantage poor people who
are unable to secure their liberty while awaiting trial.
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The legislature also recognizes
that, in Hawaii, the consequences of pretrial detention fall disproportionately
on Native Hawaiians, Pacific Islanders, and other people of color, who are more
likely to be arrested, detained, and unable to afford bail.
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The right to liberty should not be threatened
because of an individual's ethnicity or socioeconomic status.
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The legislature further finds that
reducing pretrial incarceration would help address severe overcrowding in
Hawaii's jails.
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In October 2022, the
Hawaii Correctional System Oversight Commission reported that seventy-eight per
cent of all people in jails are awaiting trial.
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Reducing pretrial incarceration rates would
also reduce the State's expenses.
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It
costs the State approximately $250 per day, or $91,250 per year, to incarcerate
each adult.
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The purpose of this Act is to
improve the State's system of pretrial justice by considering the need to
evaluate risks to public safety, individual constitutional rights, and the
fiscal and human harms that arise from overcrowded prisons.
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Specifically, this Act
requires:
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(1)
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The court to enter on the record its written
findings regarding the necessity of the conditions imposed on a defendant's
release; and
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(2)
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Bail to be set in an amount that the
defendant can afford based on certain factors.
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SECTION
2
.
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Section 804-4, Hawaii Revised Statutes, is
amended by amending subsection (a) to read as follows:
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"(a)
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If the charge is for an offense for which
bail is allowable under section 804-3, the defendant may be admitted to bail
before conviction as a matter of right and under the least restrictive
conditions required to ensure the defendant's appearance and to protect the
public.
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The court shall enter on the
record its written findings regarding why the conditions imposed on the
defendant are necessary to ensure defendant's appearance, or to protect the
public, or both.
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Except
for section 712-1207(7), bail shall be allowed for any person charged under
section 712-1207 only subject to the mandatory condition that the person
observe geographic restrictions that prohibit the defendant from entering or
remaining on public property, in Waikiki and other areas in the State
designated by county ordinance during the hours from 6 p.m. to 6 a.m.; [
and
]
provided [
further
] that nothing contained in this subsection shall be
construed as prohibiting the imposition of stricter geographic restrictions
under section 804-7.1.
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The right to bail
shall continue after conviction of a misdemeanor, petty misdemeanor, or
violation, and release on bail may continue, in the discretion of the court,
after conviction of a felony until the final determination of any motion for a
new trial, appeal, habeas corpus, or other proceedings that are made, taken,
issued, or allowed for the purpose of securing a review of the rulings,
verdict, judgment, sentence, or other proceedings of any court or jury in or by
which the defendant has been arraigned, tried, convicted, or sentenced;
provided that[
:
]
no bail shall be allowed:
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(1)
�
[
No bail shall be allowed after
]
After
conviction and [
prior to
]
before
sentencing in cases
where bail was not available under section 804-3, or where bail was denied or
revoked before conviction;
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(2)
�
[
No bail shall be allowed pending
]
Pending
appeal of a felony conviction where a sentence of imprisonment
has been imposed; and
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(3)
�
[
No bail shall be allowed pendin
g]
Pending
appeal of a conviction for a violation of section 712-1207,
unless the court finds, based on the defendant's record, that the defendant may
be admitted to bail subject to the mandatory condition that the person observe
geographic restrictions that prohibit the defendant from entering or walking
along the public streets or sidewalks of Waikiki or other areas in the State
designated by county ordinance pursuant to section 712-1207 during the hours
from 6 p.m. to 6 a.m.
Notwithstanding
any other provision of law to the contrary, any person who violates these bail
restrictions shall have the person's bail revoked after hearing and shall be
imprisoned forthwith."
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SECTION
3
.
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Section 804-9,
Hawaii Revised Statutes, is amended to read as follows:
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"
�804-9
�
Amount.
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The amount of bail
rests in the discretion of the justice or judge or the officers named in
section 804-5 and shall be set in a reasonable amount based upon all available
information, including the offense alleged, the possible punishment upon
conviction, and the defendant's financial ability to afford bail.
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Any
bail amount set, whether secured or unsecured, shall be in an amount that the
person is able to afford based on the person's affidavit or testimony at the
release hearing, subject to any rebuttal evidence from the prosecution.
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In the setting of bail, the following
shall apply:
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(1)
�
The court shall exclude from
consideration any income derived from public benefits; including supplemental
security income, social security disability insurance, and temporary assistance
for needy families; and any income below the federal poverty level;
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(2)
�
If the person has no income other
than public benefits or is a member of a household having a household income
below one hundred fifty per cent of the federal poverty level, the court shall
presume that the person is unable to pay any bail amount; and
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(3)
�
If the person's household income,
exclusive of any income derived from public benefits, is above one hundred
fifty per cent of the federal poverty level, the court shall consider what the
individual could reasonably pay within forty hours of arrest, subject to the
exclusions in paragraph (1).
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The bail amount should be so determined as
not to suffer the wealthy to escape by the payment of a pecuniary penalty, nor
to render the privilege useless to the poor."
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SECTION 4.
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This Act does not affect rights and duties
that matured, penalties that were incurred, and proceedings that were begun
before its effective date.
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SECTION 5.
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Statutory material to be repealed is
bracketed and stricken.
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New statutory
material is underscored.
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SECTION 6.
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This Act shall take effect on July 1, 2025.
INTRODUCED BY:
_____________________________
Report Title:
Pretrial
Release; Bail
Description:
Requires
the court to enter on the record its written findings regarding the necessity
of the conditions imposed on a defendant's release.
�
Requires bail to be set in an amount that the
defendant can afford based on certain factors.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.