| 47 | | - | SECTION 1. The legislature finds that the right to physical liberty is one of the foundational principles of the United States Constitution. 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". 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. The legislature further 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. The legislature also recognizes that, in the State, 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. The right to liberty should not be threatened because of an individual's ethnicity or socioeconomic status. The legislature further finds that reducing pretrial incarceration would help address severe overcrowding in the State's jails. In October 2022, the Hawaii correctional system oversight commission reported that seventy-eight per cent of all people in jails are awaiting trial. Reducing pretrial incarceration rates would also reduce the State's expenses. It costs the State approximately $250 per day, or $91,250 per year, to incarcerate each adult. 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. Specifically, this Act requires bail to be set in an amount that the defendant can afford based on certain factors. SECTION 2. Section 804-7.5, Hawaii Revised Statutes, is amended to read as follows: "[[]§804-7.5[]] Right to a prompt hearing; release or detention. (a) For the purposes of this section, "prompt hearing" means a hearing that occurs at the time of the defendant's arraignment, or as soon as practicable. (b) Upon formal charge and detention, a defendant shall have the right to a prompt hearing concerning: (1) Release or detention; [and] (2) Whether any condition or combination of conditions will reasonably ensure: (A) The defendant's appearance as required; and (B) The safety of any other person and the community[.]; and (3) Whether monetary bail should be confirmed or set. (c) 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 at the hearing. The defendant and the prosecution shall both be afforded an opportunity to present information by proffer or otherwise. (d) If the court finds that monetary bail should be confirmed or set, any bail amount confirmed or set, whether secured or unsecured, shall be in an amount that the defendant is able to afford based on the defendant's affidavit or testimony at the release hearing, subject to any rebuttal evidence from the prosecution. In the setting and confirming of bail, the following shall apply: (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; (2) If the defendant 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 defendant is unable to pay any bail amount; and (3) If the defendant'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 defendant could reasonably pay within forty hours of arrest, subject to the exclusions in paragraph (1). (e) The court shall enter findings on the record regarding its consideration and determination of subsection (d)(1) to (3). [(d)] (f) The rules concerning the admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing. [(e)] (g) The defendant may be detained pending completion of the hearing. (h) Bail may be considered at any time following the prompt hearing upon the defendant's motion or the court's own motion. In any subsequent hearing where bail is reviewed, confirmed, or set, the court shall conduct the proceeding pursuant to subsections (d) and (e); provided that the subsequent hearing need not be prompt." SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 5. This Act shall take effect on July 1, 3000. |
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| 47 | + | SECTION 1. The legislature finds that the right to physical liberty is one of the foundational principles of the United States Constitution. 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". 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. 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. 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. The right to liberty should not be threatened because of an individual's ethnicity or socioeconomic status. The legislature further finds that reducing pretrial incarceration would help address severe overcrowding in Hawaii's jails. In October 2022, the Hawaii correctional system oversight commission reported that seventy-eight per cent of all people in jails are awaiting trial. Reducing pretrial incarceration rates would also reduce the State's expenses. It costs the State approximately $250 per day, or $91,250 per year, to incarcerate each adult. 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. Specifically, this Act requires bail to be set in an amount that the defendant can afford based on certain factors. SECTION 2. Section 804-7.5, Hawaii Revised Statutes, is amended to read as follows: "[[]§804-7.5[]] Right to a prompt hearing; release or detention. (a) For the purposes of this section, "prompt hearing" means a hearing that occurs at the time of the defendant's arraignment, or as soon as practicable. (b) Upon formal charge and detention, a defendant shall have the right to a prompt hearing concerning: (1) Release or detention; [and] (2) Whether any condition or combination of conditions will reasonably ensure: (A) The defendant's appearance as required; and (B) The safety of any other person and the community[.]; and (3) Whether monetary bail should be confirmed or set. (c) 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 at the hearing. The defendant and the prosecution shall both be afforded an opportunity to present information by proffer or otherwise. (d) If the court finds that monetary bail should be confirmed or set, any bail amount confirmed or set, whether secured or unsecured, shall be in an amount that the defendant is able to afford based on the defendant's affidavit or testimony at the release hearing, subject to any rebuttal evidence from the prosecution. In the setting of bail, the following shall apply: (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; (2) If the defendant 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 defendant is unable to pay any bail amount; and (3) If the defendant'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 defendant could reasonably pay within forty hours of arrest, subject to the exclusions in paragraph (1). (e) The court shall enter findings on the record regarding its consideration and determination of subsection (d)(1) to (3). [(d)] (f) The rules concerning the admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing. [(e)] (g) The defendant may be detained pending completion of the hearing." SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 5. This Act shall take effect on July 1, 3000. |
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