Bill Text: HI HB1542 | 2019 | Regular Session | Introduced

Hawaii House Bill 1542 (Prior Session Legislation)

Introduced

Bill Title: Relating To Bail.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Introduced - Dead) 2019-01-28 - Referred to PVM, JUD, FIN, referral sheet 6 [HB1542 Detail]

Download: Hawaii-2019-HB1542-Introduced.html

HOUSE OF REPRESENTATIVES	H.B. NO.	1542
THIRTIETH LEGISLATURE, 2019
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 the presumption of innocence is the primary principle that must guide determinations of pretrial release and detention. A defendant may not be convicted of a crime unless and until the government proves guilt beyond a reasonable doubt, without any burden placed on the defendant to prove the defendant's innocence. The underlying principle that there is a presumption of innocence in favor of the defendant is firmly rooted in the most basic constitutional principles. In the United States of America, liberty is the norm and detention should be the very limited exception.

A defendant must be accorded due process before being subjected to preventative detention. In the criminal pretrial context, the United States Supreme Court has long recognized a distinction between punitive measures that may not constitutionally be imposed prior to a determination of guilt and regulatory restraints that may be imposed. The bail process must be limited for use under a legitimate regulatory purpose and not as a pretrial punishment or to incapacitate an individual for an alleged crime. Bail cannot be used to circumvent due process protections required throughout the preventive detention process. Federal courts have held that:

(1) A defendant's financial circumstances and possible alternative release conditions must be considered prior to pretrial detention;

(2) The bail determination must be based on individualized, case-specific reasons;

(3) A meaningful bail hearing must take place promptly after arrest; and

(4) If a court concludes that an amount of bail the defendant is unable to pay is required to ensure the defendant's future court appearances, it may impose that amount only upon a determination by clear and convincing evidence that no less restrictive alternative will satisfy that purpose.

Pretrial release and detention practices also implicate equal protection principles. Since liberty is a fundamental right, traditional equal protection analysis requires the government to ensure that pretrial release and detention laws do not treat similar persons dissimilarly and to show that these laws are necessary to achieve a compelling or overriding state interest. Recently, civil rights organizations have begun suing counties in federal court on the theory that local bail laws are treating similar persons dissimilarly based on their wealth, and correlatively their race. The analysis can be boiled down to the following illustration: two misdemeanor arrestees are identical in every way, except that one arrestee is wealthy and the other arrestee is indigent. Without an individualized assessment, both arrestees will probably receive identical secured bail amounts. The wealthy arrestee is able to post bond, while the indigent arrestee is not. This results in the wealthy arrestee being less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration. The indigent arrestee, by contrast, must bear the brunt of all of these outcomes, simply because the arrestee has less money than the arrestee's wealthy counterpart. This system appears to violate the equal protection clause. Consequently, courts around the nation have increasingly mandated, on due process and equal protection grounds, individualized considerations of a defendant's personal and financial circumstances prior to the setting of bail.

The purpose of this Act is to achieve a more efficient and just pretrial system that upholds Hawaii's laws while preserving our community principles and local values by adopting the recommendations of the criminal pretrial task force established by House Concurrent Resolution No. 134, 2017 Regular Session.

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

"§804- _ Right to prompt hearing. Upon formal charge and detention, the defendant shall have a right to a prompt hearing concerning release or detention and whether any condition or combination of conditions will reasonably assure the defendant's appearance as required and the safety of any other person and the community. At the hearing, the defendant shall have the right to be represented by counsel, and, if financially unable to obtain representation, to have counsel appointed. The defendant shall be afforded an opportunity to testify, present witnesses, cross-examine witnesses who appear at the hearing, and present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing. The defendant may be detained pending completion of the hearing.

§804- Monetary bail; non-violent offenders. (a) Any defendant arrested and charged with a traffic offense, violation, nonviolent petty misdemeanor offense, or nonviolent misdemeanor offense shall be released on the defendant's own recognizance conditioned upon the defendant's appearance in court and any other least restrictive nonfinancial condition necessary to assure the defendant's appearance in court and protect the public; provided that this subsection shall not apply if:

(1) The offense involves assault, terroristic threatening, sexual assault, abuse of family and household members, violation of a temporary restraining order, violation of an order for protection, driving under the influence, negligent homicide, or any other crime of violence; or

(2) One or more of the following apply:

(A) The defendant has a history of non-appearance within the last twenty-four months;

(B) The defendant has at least one prior conviction for a misdemeanor or felony crime of violence;

(D) The defendant is on probation, parole, or conditional release at the time of arrest;

(E) The defendant is also concurrently charged with a violent petty misdemeanor, violent misdemeanor, or any felony offense arising from the same or separate incident; or

(F) The defendant presents a risk of danger to any other person or the community.

(b) If any of the exceptions in subsection (a) apply, monetary bail may be set in a reasonable amount. If the defendant is unable to post bail as ordered, the defendant shall be entitled to a prompt bail hearing."

SECTION 3. Section 353-10, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The centers shall:

(1) Provide orientation, guidance, and technical services;

(2) Provide social-medical-psychiatric-psychological diagnostic evaluation;

(3) Conduct internal pretrial risk assessments and prepare and provide a bail report to the court on adult offenders within [~~three~~] two working days of admission to a community correctional center [~~which shall then be provided to the court for its consideration~~]; provided that this paragraph shall not apply to persons subject to county or state detainers, holds, or persons detained without bail, persons detained for probation violation, persons facing revocation of bail or supervised release, and persons who have had a pretrial risk assessment completed prior to admission to a community correctional center. For purposes of this [[]paragraph[]], "pretrial risk assessment" means an objective, research-based, validated assessment tool that measures a defendant's risk of flight [~~and~~], risk of criminal conduct, and risk of violence or harm to any person or the general public while on pretrial release pending adjudication[;]. The pretrial risk assessment tool and procedures associated with its administration shall be periodically reviewed and subject to further validation at least every five years to evaluate the effectiveness of the tool and the procedures associated with its administration. The findings of any review shall be publicly reported;

(4) Provide correctional prescription program planning and security classification;

(5) Provide other personal and correctional services as needed for both detained and committed persons;

(6) Monitor and record the progress of persons assigned to correctional facilities who undergo further treatment or who participate in prescribed correctional programs;

(7) Provide continuing supervision and control of persons ordered to be placed on pretrial supervision by the court and persons ordered by the director; [~~and~~]

(8) Make inquiry with the defendant concerning their financial circumstances and report any information in the bail report; and

[~~(8)~~] (9) Provide pretrial bail reports within two working days to the courts on adult offenders that are consented to by the defendant or that are ordered by the court. A complete copy of the executed pretrial risk assessment delineating the scored items, the total score, any administrative scoring overrides applied, and written explanations for administrative scoring overrides shall be included in the report. The pretrial bail reports shall be confidential and shall not be deemed to be public records. A copy of a pretrial bail report shall be provided only:

(A) To the defendant or defendant's counsel;

(B) To the prosecuting attorney;

(D) To any psychiatrist, psychologist, or other treatment practitioner who is treating the defendant pursuant to a court order;

(E) Upon request, to the adult client services branch; and

(F) In accordance with applicable laws, persons, or entities doing research."

SECTION 4. Section 803-6, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) In any case in which it is lawful for a police officer to arrest a person without a warrant for a nonviolent class C felony, any misdemeanor, any petty misdemeanor, or violation, the police officer may[~~, but need not,~~] exercise discretion and issue a citation in lieu of the requirements of [[]subsection[]] (a), if the police officer finds and is reasonably satisfied that the person:

(1) Will appear in court at the time designated;

(2) Has no outstanding arrest warrants which would justify the person's detention or give indication that the person might fail to appear in court; [~~and~~]

(3) That the offense is of such nature that there will be no further police contact on or about the date in question, or in the immediate future[.]; and

(4) The offense does not involve domestic violence, sexual assault, robbery, or any other offense enumerated in chapter 707."

SECTION 5. Section 804-3, Hawaii Revised Statutes, is amended by amending subsections (a), (b), and (c) to read as follows:

"(a) For purposes of this section, "serious crime" means murder or attempted murder in the first degree, murder or attempted murder in the second degree, [or] a class A [~~or B~~] felony, [~~except forgery in the first degree and failing to render aid under section 291C-12,~~] or a class B or C felony involving violence or threat of violence to any person; and "bail" includes release on one's own recognizance, supervised release, and conditional release.

(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:~~] There shall be a rebuttable presumption that any person charged with a criminal offense, other than a serious crime, shall be released or admitted to bail under the least restrictive conditions required to ensure their appearance and protect the public, unless the prosecution demonstrates by clear and convincing evidence:

(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.

If the prosecution demonstrates by clear and convincing evidence one or more of the serious risks listed in paragraphs (1) through (4) exists, the defendant shall be detained if the court finds that no condition or combination of conditions is sufficient to reasonably eliminate, reduce, or mitigate the risks presented.

(c) Under subsection (b)(1) a rebuttable presumption arises that there is a serious risk that the person will flee or will not appear as directed by the court where the person is charged with a criminal offense punishable by imprisonment for life with or without possibility of parole. For purposes of subsection (b)(3) and (4) a rebuttable presumption arises that the person poses a serious danger to any person or community or will engage in illegal activity where the court determines that:

(1) The defendant has been previously convicted of a serious crime involving violence or threat of violence against a person within the ten-year period preceding the date of the charge against the defendant;

(2) The defendant is [~~already on bail on~~] pending trial or sentencing for a felony charge involving violence or threat of violence against a person; or

(3) The defendant is on probation or parole for a serious crime involving violence or threat of violence to a person."

SECTION 6. Section 804-4, Hawaii Revised Statutes, is amended to read as follows:

"§804-4 When a matter of right. (a) 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. 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. 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:

(1) No bail shall be allowed after conviction and prior to sentencing in cases where bail was not available under section 804-3, or where bail was denied or revoked before conviction;

(2) No bail shall be allowed pending appeal of a felony conviction where a sentence of imprisonment has been imposed; and

(3) No bail shall be allowed 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.

(b) The court shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the court finds:

(1) By clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released; and

(2) That the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

If the court makes these findings, the court shall order the release of the person in accordance with section 804-7.1[.] under the least restrictive conditions required to ensure the defendant's appearance and protect the public. No defendant entitled to bail, whether bailed or not, shall be subject, without the defendant's written consent, to the operation of any sentence passed upon the defendant, while any proceedings to procure a review of any action of the trial court or jury in the premises are pending and undetermined, except as provided in section 641-14(a) or section 712-1207."

SECTION 7. Section 804-5, Hawaii Revised Statutes, is amended to read as follows:

"§804-5 By whom allowed. In cases where the punishment for the offense charged may be imprisonment for life not subject to parole, or imprisonment for a term more than ten years with or without fine, a judge or justice of a court of record, including a district judge, shall be competent to admit the accused to bail, in conformity with sections 804-3 to 804-6. In all other cases, the accused may be so admitted to bail by any judge or justice of a court of record, including a district judge, and in cases, except under section 712-1207, where the punishment for the offense charged may not exceed two years' imprisonment with or without fine, the sheriff, the sheriff's deputy, the chief of police or any person named by the chief of police, or the sheriff of Kalawao, regardless of the circuit within which the alleged offense was committed, may admit the accused person to bail. The court may impose conditions of release or bail which are the least restrictive conditions required to ensure the defendant's appearance and protect the public."

SECTION 8. Section 804-7, Hawaii Revised Statutes, is amended to read as follows:

"§804-7 Release after bail. [~~When bail is offered and taken the prisoner shall be discharged from custody or imprisonment.~~] Any defendant for whom a monetary amount of bail has been set by the police, other law enforcement agency, or the court shall be permitted to post said bail amount at the police department, law enforcement agency, or county correctional center where the defendant is detained. Said monetary bail shall be payable seven days a week on a twenty-four-hour basis. Upon posting or payment of bail, the defendant or the defendant's representative or agent shall be provided a bail receipt and the defendant shall be released from custody forthwith."

SECTION 9. Section 804-7.1, Hawaii Revised Statutes, is amended to read as follows:

"§804-7.1 Conditions of release on bail, recognizance, or supervised release. Upon a showing that there exists a danger that the defendant will commit a serious crime or will seek to intimidate witnesses, or will otherwise unlawfully interfere with the orderly administration of justice, the judicial officer named in section 804-5 may deny the defendant's release on bail, recognizance, or supervised release.

Upon the defendant's release on bail, recognizance, or supervised release, however, the court may enter an order:

(1) Prohibiting the defendant from approaching or communicating with particular persons or classes of persons, except that no such order should be deemed to prohibit any lawful and ethical activity of defendant's counsel;

(2) Prohibiting the defendant from going to certain described geographical areas or premises;

(3) Prohibiting the defendant from possessing any dangerous weapon, engaging in certain described activities, or indulging in intoxicating liquors or certain drugs;

(4) Requiring the defendant to report regularly to and remain under the supervision of an officer of the court;

(5) Requiring the defendant to maintain employment, or, if unemployed, to actively seek employment, or attend an educational or vocational institution;

(6) Requiring the defendant to comply with a specified curfew;

(7) Requiring the defendant to seek and maintain mental health treatment or testing, including treatment for drug or alcohol dependency, or to remain in a specified institution for that purpose;

(8) Requiring the defendant to remain in the jurisdiction of the judicial circuit in which the charges are pending unless approval is obtained from a court of competent jurisdiction to leave the jurisdiction of the court;

(9) Requiring the defendant to satisfy any other condition reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person or community; or

(10) Imposing any combination of conditions listed above[.] or any other least restrictive nonfinancial conditions required to assure the defendant's appearance and protect the public.

The judicial officer may revoke a defendant's bail upon proof that the defendant has breached any of the conditions imposed."

SECTION 10. Section 804-9, Hawaii Revised Statutes, is amended to read as follows:

"§804-9 Amount. The amount of bail rests in the discretion of the justice or judge or the officers named in section 804-5[~~; but~~] and shall be set in reasonable amounts based upon all available information, including the offense alleged, possible punishment upon conviction, and the offender's financial ability to afford bail. Bail amounts 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. [~~In all cases, the officer letting to bail should consider the punishment to be inflicted on conviction, and the pecuniary circumstances of the party accused.~~]"

SECTION 11. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 12. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 13. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

Report Title:

Bail; Criminal Pretrial Task Force

Description:

Incorporates the statutory revisions suggested by the Criminal Pretrial Task Force established by House Concurrent Resolution No. 134, 2017 Regular Session.

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