RELATING TO BAIL.

SB2279

THE SENATE

S.B. NO.

2279

THIRTY-THIRD LEGISLATURE, 2026

STATE OF HAWAII

A BILL FOR AN ACT

Relating
to Bail
.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

����
SECTION 1.
�
The legislature finds that bail providers, including
bail agents, sureties, and insurers, provide a valuable service to the public,
law enforcement, and the accused.
�
The
legislature further finds that the State's bail forfeiture rules create
unnecessary risks for bail providers, decreasing the incentive to furnish bail
under certain circumstances due to the high financial risk of forfeiture.
�
Due to this significant financial risk, bail
providers typically require a payment of ten per cent of the total bail amount.
�
This system disadvantages low-income defendants
charged with serious crimes because they are often unable to afford the
collateral payment and therefore ineligible for pretrial release.

����
The
legislature recognizes the vital role bail plays in the judicial system.
�
The presumption of innocence is a core
component of the country's criminal justice system.
�
Following this presumption, and barring
certain exceptions, it is therefore unjust to hold defendants in jail until
trial, pursuant to the bail clause of the eighth amendment of the United States
Constitution.
�
Monetary bail enables
defendants to secure their release until trial by depositing a dollar sum with
the court that is subject to forfeiture if the defendant fails to appear in
court as ordered.
�
Bail therefore
safeguards both the rights of the accused and public safety.

����
Defendants
with sufficient financial means may pay their own bail.
�
Those who can pay at least ten per cent of
the total sum may collateralize the remainder by pledging assets to a bail
agent.
�
Bail agents collaborate with
sureties and insurers, collectively known as bail providers, to finance the
total bail amount for deposit with the court.
�

All parties involved risk forfeiting their contributions to the deposit
should the defendant fail to appear in court.

����
In
addition to their role as financiers, bail agents also operate as quasi-law
enforcement officers due to their financial stake in the proceedings.
�
Bail agents have the legal authority,
expertise, duty, and incentive to monitor defendants and apprehend fugitives.
�
They provide this service at no cost to
taxpayers.
�
Without bail agents
performing this essential function, local police would be obligated to divert
additional resources from ongoing crimefighting efforts.

����
The
legislature further finds that, in the State,
bail may be forfeited
within thirty days of a defendant's failure to appear in court.
�
This is an unrealistic deadline for bail
agents to locate and apprehend fugitives.
�

Although the court may extend the deadline for good cause, failure is
not an option for bail providers.
�

Regardless of their efforts and circumstances, bail providers forfeit
the full monetary bail amount if they fail to apprehend the fugitive before the
deadline.
�
The full forfeiture may even
apply if a bail agent apprehends and delivers the defendant in time for trial
but misses the forfeiture deadline.

����
These
strict deadlines and corresponding forfeiture rules significantly increase the
financial risk of providing bail.
�
Accordingly,
bail providers require assets as collateral to insulate themselves from
potential losses.
�
Without collateral, which
is typically ten per cent of the total bail amount, the existing forfeiture
system would quickly bankrupt many bail providers.

����
Due

to this collateral requirement, defendants with limited financial means are
often unable to obtain bail and pretrial release.
�
Many defendants must ask family and friends
to act as guarantors by paying the ten per cent deposit to the bail agent and
pledging their assets to secure the remainder.
�

If the defendant is of low moral character and subsequently flees, their
guarantors, although completely innocent of wrongdoing, may lose their life
savings and homes to forfeiture.

����
The
legislature therefore finds that the existing bail system is flawed due to the
perverse incentives it creates.
�
These
include ending a bail agent's financial incentive to locate and apprehend
defendants that flee by ordering bail forfeiture; relying on the threat of
forfeiture of their guarantor's assets to deter bad-faith, destitute defendants
from fleeing; and predicating pretrial release on financial means, forcing many
defendants acting in good-faith but lacking monetary assets to remain in jail
until trial.

����
Despite
these flaws, the legislature acknowledges that bail reform is complex and must
be achieved incrementally to safeguard public safety.
�
The consequences of reforms such as eliminating
monetary bail or transitioning to a government-run bail system are historically
mixed.
�
Oregon outlawed commercial bail
bonds in 1973.
�
However, since
transitioning to a public-sector pretrial program, defendants'
failure-to-appear rates in the state have risen dramatically.

����
Several
studies demonstrate the advantages of maintaining a commercial bail
industry.
�
A 2005 study examining
pretrial releases in California found that defendants released on their own
recognizance or through a conditional release program were sixty per cent more
likely to fail to appear in court than those released on surety bond.
�
The study also highlighted the public service
bail agents provide by apprehending fugitives.
�

It found that defendants who failed to appear for court were two and a
half times more likely to remain fugitives if they were released on their own
recognizance or conditional or supervised release than if they were released on
surety bond.
�
The study estimated that
with a larger rate of surety bond releases, the total cost savings of the
counties examined could range between $14,000,000 and $109,000,000 annually
(Michael K. Block, University of Arizona,
The Effectiveness and Cost of
Secured and Unsecured Pretrial Release in California's Large Urban Counties:
1990-2000
(2005)).
�
These results
demonstrate the fiscal, legal, and social advantages of utilizing bail
agents.
�
Due to their financial
incentives and private powers, bail agents have a better history of maintaining
the bail system than their public sector counterparts.
�
The legislature therefore finds that the
existing bail system must be reformed to sustain these advantages while
expanding services accessible to defendants with limited financial means.

����
Accordingly,
the purpose of this Act is to:

����
(1)
�
Predicate forfeiture rules on whether
bail providers performed and continue to perform their duties with reasonable
diligence;

����
(2)
�
Clarify when bail providers may
discharge their duties;

����
(3)
�
Specify the factors courts shall consider to
determine if
bail providers are performing their duties with reasonable
diligence or are negligent and should be subject to forfeiture;

����
(4)
�
Require
courts to hold a hearing to order a forfeiture, rather than entering a default
judgement in favor of the State;

����
(5)
�
Increase the deadline to file a motion
to set aside forfeiture;

����
(6)
�
Clarify that courts have discretion to
further delay the forfeiture deadline; and

����
(7)
�
Specify that bail providers are not in
privity with defendants, and therefore not barred res judicata from filing a
motion to set aside forfeiture if the defendant already made the same motion
and was denied.

����
This
Act shall be known and cited as the "Hawaii Fair Bail Act".

����
SECTION
2.
�
Chapter 804, Hawaii Revised Statutes,
is amended by adding a new section to part I to be appropriately designated and
to read as follows:

����
"
�
804-
�
Judicial discretion; bail proceedings.
�
The court shall have maximum discretion to grant, deny, and set
conditions of bail pursuant to article I, section 12, of the Hawaii State
Constitution, including the form and amount pursuant to section 804-9.
�
The court may consider any evidence to make
its determination during bail proceedings.
"

����
SECTION

3
.
�
Section 804-1,
Hawaii Revised Statutes, is amended to read as follows:

����
"�804-1
�
Bail
[
defined.
]
; definitions.
�
As
used in this chapter:

����
"Any
time" includes nights, weekends, holidays, and the time after bail
forfeiture, without restriction to court hours or administrative convenience.

����
[
Bail,
]

"Bail"
or [
the
]
"the
giving of [
bail, is
]

bail" means
the signing of the recognizance by the defendant and
the defendant's surety or sureties, conditioned for the appearance of the
defendant at the session of a court of competent jurisdiction to be named in
the condition, and to abide by the judgment of the court.

����
"Bail
agent" has the same meaning as defined in section 431:9N-101 and includes
a producer or agent legally authorized to act on behalf of a surety and the
court to locate and apprehend a defendant who flees or otherwise fails to
appear in court as ordered.

����
"Bail
bond" means a written financial guarantee provided to the court by a bail
agent, defendant, or other party that can be forfeited if the defendant fails
to appear in court as ordered without justifiable cause.

����
"Bail
provider" includes any bail agent, surety, or insurer that assists in
financing a defendant's bail and assumes certain responsibilities pursuant to
this chapter.

����
"Defendant"
or "principal" means any person who is a defendant in a criminal
proceeding, or quasi-criminal proceeding, for whom a bail or peace bond is
being considered, granted, revoked, or forfeit.

����
"Insurer"
means a party, often a business entity, that assumes the risk of default for
the benefit of a bail agent.

����
"Peace
bond" means a surety bond required by a court to guarantee that a
defendant will not violate a court order to refrain from engaging in specified
conduct, violating the law, or breaching the peace.

����
"Surety"
means a person or entity that assumes direct liability for a principal's bond obligation.
�
"Surety" includes a business entity
that provides a line of credit to a bail agent to deposit with the court as
bail for a defendant that may be forfeited if the defendant fails to appear as
ordered, in return for payment of a risk premium.
"

����
SECTION

4
.
�
Section 804-3,
Hawaii Revised Statutes, is amended by amending subsection (b) to read as
follows:

����
"(b)
�
Any person charged with a criminal offense
shall be bailable by sufficient sureties; provided that bail may be denied
where the charge is for a serious crime, and:

����
(1)
�
There is a serious risk that the person
will flee;

����
(2)
�
There is a serious risk that the person
will obstruct or attempt to obstruct justice, or therefore, injure, or
intimidate, or attempt to thereafter, injure, or intimidate, a prospective
witness or juror;

����
(3)
�
There is a serious risk that the person
poses a danger to any person or the community; [
or
]

����
(4)
�
There is a serious risk that the person
will engage in illegal activity[
.
]
;

����
(5)
�
There is a serious risk that the
person will infringe on or obstruct the legal rights of other persons;

����
(6)
�
There is a serious risk that the
person poses a danger to property;

����
(7)
�
The person breached the conditions
of bail in past criminal proceedings or has already breached the conditions of
bail in the current proceedings; or

����
(8)
�
Bail is prohibited by law for the
alleged offense.
"

����
SECTION

5
.
�
Section
804-10.5, Hawaii Revised Statutes, is amended to read as follows:

����
"�804-10.5
�
[
Sureties; qualification.
]

Bail providers; qualifications; duties.
�
(a)
�
In
determining the sufficiency of a [
surety or sureties,
]
bail provider,

the court shall consider the [
surety's or sureties':
]
historic
conduct of the bail provider, including the bail provider's:

����
(1)
�
Character;

����
(2)
�
Reliability;

����
(3)
�
Place of residence; and

����
(4)
�
Financial and employment circumstances.

����
(b)
�
No person
or
entity
shall be
a
sufficient [
surety
]
bail provider
who:

����
(1)
�
Has been convicted of perjury for submitting a false
statement under section 804-11.5;

����
(2)
�
Does not satisfy the requirements of section 804-11.5;
or

����
(3)
�
Does not satisfy the requirements of article 9A,
chapter 431, if posting an insurance bond as defined in section 431:1-210(1).

����
(c)
�
The duties of a bail provider shall include:

����
(1)
�
Ensuring that the defendant, or any
other person pledging assets as collateral for bail on behalf of the defendant,
is duly informed of the terms, fees, costs, and possible adverse consequences
of the transaction;

����
(2)
�
Posting bail timely, in the amount
and in accordance with any order or instructions issued by the court;

����
(3)
�
Taking reasonable measures to:

���������
(A)
�
Monitor the whereabouts of the
defendant throughout the trial or until discharged by the court; and

���������
(B)
�
Remind the defendant of any relevant
hearing times and dates, including the times and dates of trial;

����
(5)
�
Taking appropriate measures to
assist the defendant as needed to appear in court as ordered for hearings and
trial; and

����
(6)
�
Diligently searching for, apprehending,
and surrendering the defendant as directed by the court if the defendant fails
to appear as ordered for a hearing or trial, flees, or otherwise violates the
terms of bail.

The
duties of bail providers cooperating to secure a person's bail may overlap or
be independent at each bail provider's discretion; provided that the bail
providers are collectively responsible for ensuring all duties are performed.
"

����
SECTION

6
.
�
Section 804-14,
Hawaii Revised Statutes, is amended to read as follows:

����
"�804-14
�
Discharge of
[
sureties.
]

bail providers who provide bail bonds for
pretrial release.
�
[
Those
who may have become bail for anyone,
]
Any bail provider
may at any
time discharge [
themselves,
]
oneself
by surrendering [
him
]

the defendant
to the custody of any sheriff [
or
]
,
chief of
police [
or his
]
, the sheriff's or chief's
authorized subordinate[
.
]
,
or any appropriate federal law enforcement agency, by filing a notice or motion
with the court as follows:

����
(1)
�
If the defendant has not breached
the terms of bail or pretrial release, the bail provider may seek discharge for
other reasons; provided that the bail provider shall return all fees and
expenses charged to the defendant and others and assist the defendant as needed
to procure alternate sources of bail;

����
(2)
�
If the defendant has breached any
condition of bail or pretrial release other than failure to appear, the bail provider,
after discovering the breach:

���������
(A)
�
Shall notify the court of the
breach; and

���������
(B)
�
May surrender the defendant to law
enforcement and move that the court grant the bail provider discharge; provided
that the bail provider shall surrender the defendant if so ordered by the
court; provided further that, if the motion for discharge is granted, the court
shall have the discretion to hold the defendant in custody pending trial or
allow the defendant to seek a new source of bail;

����
(3)
�
If the defendant fails to appear for
any hearing or trial as ordered by the court, after the defendant is
apprehended and surrendered to the custody of law enforcement, the bail provider
may seek discharge; and

����
(4)
�
If, due to a breach by the
defendant, the court increases the bail amount, the court shall afford the bail
provider the option to decline the additional financial risk and grant the bail
provider a discharge upon request, whereupon the court shall enable the
defendant to seek a new source of bail.
"

����
SECTION

7
.
�
Section 804-41,
Hawaii Revised Statutes, is amended to read as follows:

����
"�804-41
�
Discharge of
[
surety.
]

bail providers who provide peace bonds.
�
At any time before the breach of the
condition of the
peace
bond, the [
surety
]
bail provider
may
discharge oneself by surrendering the principal into the hands of any sheriff [
or
]
,

the chief of police [
or
]
,
the sheriff's or chief's authorized
subordinate[
.
]
, or any appropriate federal law enforcement agency, by
filing a notice or motion with the court as follows:

����
(1)
�
If the defendant has not breached
the terms of the peace bond, the bail provider may seek to discharge oneself
for other reasons; provided that the bail provider shall return all fees and
expenses charged to the defendant and others and assist the defendant as needed
to procure alternate sources of peace bond;

����
(2)
�
If the defendant has breached any
condition of the peace bond, the bail provider, after discovering the breach:

���������
(A)
�
Shall notify the court of the
breach; and

���������
(B)
�
May surrender the defendant to law
enforcement and move that the court grant the bail provider discharge; provided
that the bail provider shall surrender the defendant if so ordered by the
court; provided further that, if the motion for discharge is granted, the court
shall have the discretion to hold the defendant in custody pending trial or
allow the defendant to seek a new source of peace bond; and

����
(3)
�
If, due to a breach by the
defendant, the court increases the peace bond amount, the court shall afford
the bail provider the option to decline the additional financial risk and grant
the bail provider discharge upon request, whereupon the court may enable the
defendant to seek a new source of peace bond.
"

����
SECTION

8
.
�
Section 804-51,
Hawaii Revised Statutes, is amended to read as follows:

����
"�804-51
�
[
Procedure.
]

Forfeiture; procedures;
requirements.
�

(a)
�
Whenever the court, in
any criminal cause, [
forfeits
]
due to the flight of the defendant or
breach of other bond terms, contemplates the forfeiture of
any bond or
recognizance given [
in a criminal cause
],
either sua sponte or upon a
motion from the prosecutor,
the court shall [
immediately enter up
]
schedule
a hearing to determine whether
judgment
should be rendered
in favor
of the State and against the principal or principals,
bail agent,
surety
or sureties, and surety insurer or surety insurers on the bond, jointly and
severally, for the full amount of the
bond and
penalty
, if any,

thereof[
,
and
]
.
�
Notice of the hearing shall be served at
least thirty days before the hearing via the judicial electronic filing and
service system to all parties registered with the system or via personal
service or certified mail, return receipt requested, to all parties not
registered with the judicial electronic filing and service system.

����
(b)
�
If the bond was provided by a bail agent, regardless
of whether in concert with a surety or insurer, the bond shall only be forfeited
if:

����
(1)
�
The bail agent, surety, or insurer failed
to perform their duties with reasonable diligence or are failing to continue to
perform those duties with reasonable diligence.
�
To determine whether a bail provider's duties
were and continue to be performed with reasonable diligence, the court:

���������
(A)
�
Shall consider whether the bail provider
acted appropriately given the factual circumstances, instead of whether the
bail provider succeeded or failed in apprehending the defendant;

���������
(B)
�
May consider any evidence, including
hearsay;

���������
(C)
�
Shall base adjudication on the
preponderance of evidence standard; and

���������
(D)
�
May require the bail provider to
provide the court with additional evidence at regular intervals after the
hearing to demonstrate continued good-faith efforts to perform their duties
with diligence;

����
(2)
�
The bail provider violated any law
relevant to their duties; or

����
(3)
�
The bail provider disobeyed an order
from the court.

����
(c)
�
The bail provider shall not be construed as
being in privity with a defendant who breaches any requirement of bond, and
shall therefore not be barred res judicata or otherwise precluded from moving
the court to set aside a forfeiture or moving for a discharge of their
obligations, regardless of whether the defendant or defendant's counsel
previously made the same motions and regardless of whether those motions were
denied.

����
(d)
�
If the court orders a forfeiture following a
hearing pursuant to subsections (a) and (b), the court
shall cause
execution to issue thereon [
immediately
] after the expiration of [
thirty
]

ninety
days from the date that notice is given via
the
judicial
electronic filing and service system
to registered parties, or, to
parties not registered with the system, via
personal service or certified
mail, return receipt requested, to the
bail agent,
surety or sureties
,

or the surety insurer or surety insurers on the bond, of the entry of the
judgment in favor of the State, unless before the expiration of [
thirty
]

ninety
days from the date that notice is given to the
bail agent,

surety or sureties
,
or the surety insurer or surety insurers on the bond
of the entry of the judgment in favor of the State, a motion or application of
the principal or principals,
bail agent,
surety or sureties, surety
insurer or surety insurers, or any of them, showing good cause why execution
should not issue upon the judgment, is filed with the court[
.
]
;
provided that the court may extend, waive, or modify the ninety-day period for
filing a motion to set aside forfeiture pursuant to subsection (e).
�
If the motion or application, after a hearing
held thereon, is sustained, the court shall vacate the judgment of forfeiture
and, if the principal surrenders or is surrendered pursuant to section 804-14
or section 804-41, return the bond or recognizance to the principal,
bail
agent,
surety, or surety insurer, whoever shall have given it, less the
amount of any cost, as established at the hearing, incurred by the State as a
result of the nonappearance of the principal or other event on the basis of
which the court forfeited the bond or recognizance.
�
If the motion or application, after a hearing
held thereon, is overruled, execution shall forthwith issue and shall not be
stayed unless the order overruling the motion or application is appealed from
as in the case of a final judgment.
�
If
the motion or application, after a hearing held thereon, is granted, the State
may appeal the order granting the motion or application as in the case of a
final judgment.

����
(e)
�
The court shall have the discretion to
extend, waive, or modify all procedural deadlines in forfeiture proceedings.

����
(f)
�
If the defendant fled and has not been
located and apprehended, no forfeiture shall be ordered unless a National Crime
Information Center warrant is entered at least thirty days before forfeiture.

����
(g)
�
This section shall be considered to be
set forth in full in words and figures in, and to form a part of, and to be
included in, each and every bond or recognizance given in a criminal cause,
whether actually set forth in the bond or recognizance, or not."

����
SECTION
9.
�
This Act does not affect rights and
duties that matured, penalties that were incurred, and proceedings that were
begun before its effective date.

����
SECTION
10.
�
If any provision of this Act, or the
application thereof to any person or circumstance, is held invalid, the
invalidity does not affect other provisions or applications of the Act that can
be given effect without the invalid provision or application, and to this end
the provisions of this Act are severable.

����
SECTION
11.
�
Statutory material to be repealed is
bracketed and stricken.
�
New statutory
material is underscored.

����
SECTION
12.
�
This Act shall take effect upon its
approval.

INTRODUCED BY:

_____________________________

Report Title:

Bail
Bonds; Peace Bonds; Bail Agents; Sureties; Insurers; Bail Forfeiture;
Defendants; Limited Financial Means

Description:

Amends bail
and peace bond forfeiture rules to predicate forfeiture on whether bail
providers performed and continue to perform their duties with reasonable
diligence.
�
Clarifies when bail providers
may discharge their duties.
�
Specifies
the factors that courts shall consider in determining if bail providers are
performing their duties with reasonable diligence or are negligent and should
be subject to forfeiture.
�
Requires
courts to hold a hearing to order a forfeiture.
�

Extends the deadline to
file motions to set aside forfeitures.
�

Clarifies that courts may extend, waive, or modify any procedural
deadlines in forfeiture proceedings.
�

Species that bail providers are not in privity with defendants, and
therefore not barred res judicata from filing certain motions.

The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.