Criminal Justice Deep Dive: a Closer Look at Hawai'i Bail Statutes and Practices

• Citation: Vol. 28 No. 10
• Year: 2024

Criminal Justice Deep Dive: A Closer Look at Hawai'i Bail Statutes and Practices

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by Jongwook "Wookie" Kim and Samantha McNichols¹

Introduction

Hawai'i has a proud tradition of laws codifying the value of pretrial liberty, stretching back to the 1860s, and currently reflected in its statutes and constitution. This tradition centers on the right to pretrial release for individuals accused, yet not convicted, of committing any crime. These laws also state that pretrial liberty should not depend on wealth. In 2019, the Hawai'i legislature passed significant bail reform legislation intended to strengthen this right and align common practice with these values. On the five-year anniversary of the 2019 law, this article compares the law's impetus with available data and bail practices. Such analysis shows that pretrial detention continues to be the norm, and there is still much room for improvement in making pretrial liberty a reality.

Mass Incarceration and Pretrial Detention

The criminal legal system incarcerates thousands of people across Hawai'i in what Justice Sabrina McKenna has called "an over-incarceration epidemic."²According to the Prison Policy Initiative, nearly 24,000 Hawai'i residents are behind bars or under community supervision as of 2023, and Hawai'i "locks up a higher percentage of its people than almost any democratic country on earth."³The scale of incarceration has increased dramatically within the span of a lifetime, with "Hawaii's combined jail and prison population . . . increas[ing] 670%" in just the past four decades, as a recent task force observed.⁴

Multiple jails in Hawai'i far exceed design capacity and even in late 2023, detained individuals were sleeping on the floor due to overcrowding.⁵ The unsustainable levels of overcrowding and failing physical infrastructure have created dangerous conditions of confinement. This overcrowding persists even after the decades-long contracts to ship incarcerated people to private, for-profit prisons on the continental United States thousands of miles from home. People have been subject to many tragedies, controversies, and crises in Hawai'i prisons and jails, including many brought into sharp relief by the COVID-19 pandemic.⁶

Importantly, the effects of mass incarceration are not felt equally across the board. For example, Native Hawaiians and Pacific Islanders experience gross overrepresentation in the incarcerated population.⁷ About 38% of individuals in Hawai'i jails are homeless,⁸ a figure that has increased in the last decade.⁹

The practice of pretrial detention is one critical dimension of this ongoing crisis of mass incarceration. According to the Prison Policy Initiative, at least 15,000 different people are admitted into Hawai'i jails each year.¹⁰

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These individuals, detained in Hawai'i jails before being tried for their charge, constitute a significant percentage of the incarcerated population. At the end of July 2024, 61.7% of the population detained at the Oahu Community Correctional Center ("OCCC") were pretrial detainees. At the same time, pretrial detainees accounted for 35.1% of the total incarcerated population at the eight active jails and prisons located in Hawai'i.¹¹ Confronting the volume—the sheer number of lives impacted by pretrial detention—is one way of making sense of available data. In addition, the amount of time spent in pretrial detention is an important marker of how the system is operating. According to a recent report by the Hawai'i Correctional System Oversight Commission after a July 2024 tour, 220 people in the OCCC population—or about 35% of its pretrial population—have been held for more than 6 months in pretrial detention.¹²

This staggering pretrial detention is a problem, but it is not a new problem in Hawai'i. For example, the Intake Services Center received federal funding in the 1980s to "reduce the number of individuals incarcerated in the pretrial, pre-sentence, or sentenced categories"—yet the jail and prison population exploded between 1978 and 1997, multiplying to over six times in size.¹³

The vast majority of people who enter the jails and prisons here will eventually be released back into the community. A key question is when, and under what circumstances: will their release be preceded by a period of pretrial detention and separation from family, employment, and responsibilities? The administration of pretrial detention is a critical part of larger incarceration trends and public safety outcomes, which is why Hawai'i bail laws are so important.

For their part, both the bench and the bar in Hawai'i have spent time evaluating pretrial detention. This article builds on that work.

Defining Bail

By way of primer: what exactly is bail, and what is the purpose of bail?

Bail refers to the conditions of release for a person charged with crime(s), pending trial. In the United States, and in Hawai'i, the most common condition of release is the arrestee's payment of money or some form of security (typically a secured bond) guaranteeing that the person will show up in court.¹⁴

The bail process is intended to ensure an individual's appearance in court, consistent with the presumption of innocence that is foundational to our criminal legal system. Indeed, as the Hawai'i Supreme Court has stated, "the primary purpose of bail is . . . to secure the presence of the defendant to answer the charges against him or her." State v. Camara, 81 Hawai'i 324, 332, 916 P2d 1225, 1233 (1996). Likewise, for almost a century and a half, the United States Supreme Court has similarly stated that "the object of bail in criminal cases is to secure the appearance of the principal before the court for the purposes of public justice." United States v. Ryder, 110 U.S. 729, 736 (1884). The Court has emphasized that, "[u]nless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." Stack v. Boyle, 342 U.S. 1, 4 (1951).

Layered on top of this "primary purpose" is the government's interest in public safety, which is most often raised by the prosecution. The Hawai'i Supreme Court has recognized that the "state has a legitimate interest in protecting its communities from those who threaten their welfare, and that this interest may be taken into account in the setting of pretrial bail," so long as the incorporation of that interest is "reasonable" and "satisfy[ies] the minimal demands of procedural due process." Huihui v. Shimoda, 64 Haw. 527, 542, 644 P.2d 968, 978 (1982); see also Hawaii Revised Statutes § 804-4.

Bail is not intended to be used as punishment. As the Hawai'i Supreme Court has stated, the point of bail "is not to punish a defendant or surety, nor to increase the revenue of the State, but rather to honor the presumption of innocence, by allowing a defendant to prepare his [or her] case" without being held behind bars. State v. Diaz, 128 Hawai'i 215, 224, 286 P.3d 824, 833 (2012).¹⁵

Further, contrary to popular belief, the bail process does not automatically require that money exchange hands. Courts can impose other conditions. These alternatives include release on own recognizance (ROR), where the arrestee is released based on a written promise to appear in court without any financial obligation. Another option is the unsecured bond, which does not require upfront payment but holds the arrestee liable for the bond amount if they fail to appear in court for their case. Hawaii Revised Statutes § 804-9.5. Courts may also impose conditions such as pretrial supervision (supervised release), where the arrestee must regularly check in with a pretrial officer, or travel restrictions that prevent a person from leaving or entering a geographic area. These alternatives are intended to ensure the individual's appearance in court without imposing financial conditions for freedom.

The Impact of Financial Conditions of Release

In 2015, the national median bail amount set by courts for a person facing a felony charge was $ 10,000—while the median annual income for a person in pretrial detention was $15,109.¹⁶ What is more, at least 37% of adults in the U.S. cannot cover a $400 emergency expense.¹⁷ These are troubling indications that many arrestees cannot afford money bail.

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There are reasons to suggest that this phenomenon also holds true in Hawai'i. In 2020, about 43% of one-adult households in Hawai'i had an income below the state self-sufficiency level.¹⁸ Furthermore, approximately 3 in 4 households in Hawai'i are carrying debt, with Native Hawaiians and Filipinos being more likely to have income below the basic cost of living or living below the federal poverty line.¹⁹

And yet, both in the United States and in Hawai'i, the most common condition of pretrial release is requiring payment in exchange for release, as a guarantee to appear in court. This is commonly referred to as the "money bail" system. For example, a 2018 analysis showed that circuit courts across Hawai'i set money bail in 88% of cases.²⁰ The practical outcome of such a system is that, when the police arrest someone, the accused can purchase their release from pretrial detention if they possess enough money. But someone who is unable to afford that bail amount remains incarcerated while they wait for trial.

Research shows the devastating impact of pretrial detention on not only the person detained, but also on family members and the broader community. Starting with the individual charged with a crime, a few days in jail can initiate a domino effect causing loss of job, housing, and even child custody.²¹ Jail keeps individuals from showing up for work, which can lead to termination and loss of essential income. Similarly, when someone is locked up, they can miss school, rental payments, medical appointments, fall behind on life obligations, and cannot provide care for children and family members in their household.

When it comes...