RELATING TO PRETRIAL REFORM.

SB3208

THE SENATE

S.B. NO.

3208

THIRTY-THIRD LEGISLATURE, 2026

STATE OF HAWAII

A BILL FOR AN ACT

RELATING
TO PRETRIAL REFORM
.

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 Hawaii has many
defendants incarcerated pretrial � that is, before they have had an opportunity
to defend themselves against the charges alleged.
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The legislature further finds that Hawaii has
spent at least a decade analyzing and considering reforms to the pretrial
system.
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These efforts have produced
extensive recommendations and critiques; yet, by many accounts, too many
individuals continue to be detained before trial.

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Detaining an arrestee before a court
has determined guilt contradicts the fundamental principle of "innocent
until proven guilty."
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More than one
hundred thirty years ago, the United States Supreme Court affirmed that
"[t]he principle that there is a presumption of innocence in favor of the
accused is the undoubted law, axiomatic and elementary, and its enforcement
lies at the foundation of the administration of our criminal law" (
Coffin
v. United States
, 156 U.S. 432, 453 (1895)).

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The Supreme Court has also stated
that "[i]n our society liberty is the norm, and detention prior to trial
or without trial is the carefully limited exception" (
United States v.
Salerno
, 481 U.S. 739, 755 (1987)).
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Pretrial
detention may be imposed for arrestees charged with certain felonies only when
the government demonstrates, by clear and convincing evidence after an
adversarial hearing, that no release conditions "will reasonably assure .
. . the safety of any other person and the community" (481 U.S. 739).

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Drawing on these foundational cases,
the Hawaii judiciary conducted the most comprehensive recent statewide efforts
to improve the pretrial system, which culminated in the final report of the
criminal pretrial task force in 2018.
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This
two-hundred-fifty-page report outlined twenty-five recommendations to improve
the pretrial system.
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For purposes of
this legislation, one of the most significant recommendations states:

The use of monetary bail should be
eliminated and defendants should be released on their own recognizance for
traffic offenses, violations, non-violent petty misdemeanor and non-violent
misdemeanor offenses with certain exceptions.
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Many jurisdictions across the nation have shifted away from money bail
systems and have instead adopted risk-based systems.
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Defendants are released based on the risks
they present for non-appearance and recidivism, rather than their financial
circumstances.
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At least for lower-level
offenses, the Task Force recommends a shift away from money bail.

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The legislature also finds that Act
179, Session Laws of Hawaii 2019, guided by task force recommendations, made
significant changes to pretrial laws.
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However, little, if any, change has occurred in the number of defendants
held pretrial.

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Nationwide trends also show growing support
for releasing nonviolent defendants without cash bail.
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In 2022, Illinois became the first state to
eliminate all cash bail for all defendants.
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Other jurisdictions, including the District of
Columbia and several major cities, have also eliminated cash bail for
nonviolent misdemeanors and felonies.

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Accordingly, the purpose of this Act
is to reduce the number of pretrial defendants incarcerated in jails by:

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(1)
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Eliminating the
use of monetary bail and requiring release on recognizance for violations, traffic
offenses, nonviolent petty misdemeanor offenses, nonviolent misdemeanor
offenses, and certain nonviolent class C felony offenses unless specified
statutory exceptions apply;

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(2)
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Creating a
"wilful flight" standard that is fairer to the arrestee and focuses
on ensuring safety and compliance, rather than penalizing an isolated failure
to appear; and

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(3)
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Requiring victim
notification at each stage of the decision-making process in a case.

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SECTION
2
.
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Chapter 804,
Hawaii Revised Statutes, is amended by adding two new sections to be
appropriately designated and to read as follows:

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"
�804-
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Pretrial
release; nonviolent offenders.
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(a)
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Except as otherwise provided in this section,
any defendant arrested, charged, and held for a violation, traffic offense,
nonviolent petty misdemeanor offense, nonviolent misdemeanor offense, or
nonviolent class C felony offense shall be ordered by the court to be released
on the defendant's own recognizance at arraignment and plea, conditioned upon:

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(1)
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The general
conditions of release on bail set forth in section 804-7.4; and

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(2)
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Any other least
restrictive, non-monetary condition necessary to:

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(A)
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Ensure
the defendant's appearance in court; and

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(B)
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Protect
the public.

Conditions under section 804-7.1 may also be
imposed at the court's discretion.

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(b)
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This section shall not apply if:

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(1)
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The offense
involves:

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(A)
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Assault;

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(B)
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Terroristic
threatening;

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(C)
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Sexual
assault;

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(D)
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Abuse
of family or household members;

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(E)
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Violation
of a temporary restraining order;

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(F)
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Violation
of an order for protection;

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(G)
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Violation
of a restraining order or injunction;

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(H)
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Operating
a vehicle under the influence of an intoxicant; or

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(I)
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Negligent
homicide;

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(2)
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The defendant presents a specific, real, and
present threat to any other person or to the community; or

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(3)
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The defendant has a high likelihood of wilful
flight.

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(c)
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If the court releases the defendant on
personal recognizance, the court may require the defendant to sign a written acknowledgement
agreeing to comply with the conditions of release, including the general
conditions of release on bail set forth in section 804-7.4.
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The defendant's address shall remain a matter
of public record with the clerk of the court.

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(d)
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Failure to appear as required shall
constitute an offense subject to punishment at the court's discretion for
violation of pretrial release conditions.

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(e)
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If
any of the exclusions in subsection (b) apply, bail may be set in a reasonable
amount pursuant to section 804-9, based upon all of the available information
including the defendant's financial ability to afford bail.
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If the defendant is unable to post the amount
of bail set, the defendant shall be entitled to a prompt hearing as set forth
in section 804-7.5.

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(f)
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If the court decides to detain the defendant
or set monetary bail, the court shall make written findings explaining why less
restrictive conditions would not reasonably assure:

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(1)
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The safety of any
person or the community; or

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(2)
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The defendant's
appearance in court.

At each subsequent appearance, the court shall
determine whether continued detention or the continued imposition of conditions
remain necessary to avoid a specific, real, and present threat to any other
person or to the community, or to prevent the wilful flight of the defendant.
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The court may reconsider detention or
conditions at any time without requiring new information or changed
circumstances.

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(g)
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This
section shall neither preclude a law enforcement agency from setting an initial
bail amount before arraignment, nor prevent a court from determining bail or
conditions of release at arraignment if an initial bail amount was set by a law
enforcement agency before arraignment.

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(h)
�

For the purposes of this section, "wilful flight" means
intentional conduct undertaken with the purpose of thwarting the judicial
process to avoid prosecution, as evidenced by recurring or patterned conduct to
evade prosecution or by a failure to take affirmative steps to communicate
regarding or remedy missed court dates.
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"Wilful flight" does not include isolated instances of nonappearance
in court.

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�804-
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Victim rights notification.
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Notwithstanding
chapter 801D, during all stages of a defendant's pretrial case, the prosecution
shall notify any victim of decisions made in the case.
"

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SECTION
3.
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New statutory material is
underscored.

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SECTION 4.
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This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________

Report Title:

Bail;
Pretrial Release; Nonviolent Offenders

Description:

Requires
release on recognizance for defendants charged with violations, traffic
offenses, nonviolent petty misdemeanors, nonviolent misdemeanors, and
nonviolent class C felonies, subject to conditions.
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Establishes exclusions for specified offenses,
threats to public safety, and wilful flight.
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Requires findings when bail or detention is
imposed, ongoing review of continued detention or conditions, and a prompt
hearing if bail cannot be posted.
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Requires
prosecutors to notify victims of pretrial decisions.

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