SB192 HD2

PART I

SECTION 1. The legislature finds that house concurrent resolution no. 134, house draft 1 (2017), requested the judiciary to convene a criminal pretrial task force to:

(1) Examine and, as needed, recommend legislation and revisions to criminal pretrial practices and procedures to increase public safety while maximizing pretrial release of those who do not pose a danger or a flight risk; and

(2) Identify and define best practices metrics to measure the relative effectiveness of the criminal pretrial system, and establish ongoing procedures to take such measurements at appropriate time intervals.

Accordingly, the judiciary convened a criminal pretrial task force that consisted of twenty-nine members from various agencies and organizations with a broad spectrum of knowledge and experience. The task force membership included judges from circuit and district courts; the chair of the senate committee on public safety, intergovernmental, and military affairs; the chair of the house of representatives committee on judiciary; court administrator representatives from each circuit court; a representative from the department of the attorney general; a representative from the department of health; a representative from the department of public safety; a representative of the office of Hawaiian affairs; the police chiefs of the counties of Hawaii, Kauai, Maui, and the city and county of Honolulu; the prosecuting attorneys for the counties of Hawaii, Kauai, and Maui; a representative of the prosecuting attorney for the city and county of Honolulu; a representative of the office of the public defender; representatives of the criminal defense bar from each of the four counties; and a member of the public. Six subcommittees were formed, and each subcommittee met or otherwise exchanged information numerous times to facilitate the work of the task force. The task force met in plenary session a total of twelve times between August 11, 2017, and July 6, 2018. The task force submitted its report to the Legislature on December 14, 2018. The report contains twenty-five recommendations, some of which were accompanied by proposed legislation that was authored by the task force.

The purpose of this Act is to implement certain recommendations of the task force.

PART II

SECTION 2. The purpose of this part is to improve clarity and consistency in the criminal pretrial system by requiring that intake service centers:

(1) Conduct pretrial risk assessments and prepare bail reports within two working days of the offender's admission to a community correctional center;

(2) Inquire and report on the offender's financial circumstances;

(3) Evaluate the offender's risk of violence;

(4) Include the fully executed pretrial risk assessment as part of the bail report; and

(5) Periodically review and further validate the pretrial risk assessment tool at least every five years to evaluate the effectiveness of the tool and the procedures associated with its administration, and publicly report the findings of periodic reviews.

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 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[,] or 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~~] an offender'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 periodic reviews 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 offender concerning the offender's financial circumstances and include this information in the bail report; provided that the department of public safety's pretrial services officers shall be provided limited access for the purpose of viewing other state agencies' relevant data related to an offender's employment wages and taxes;

[~~(8)~~] (9) Provide pretrial bail reports to the courts on adult offenders, within two working days of admission of the offender to a community correctional center, that are [~~consented to by the defendant or that are~~] ordered by the court[.] or consented to by the offender. 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 pretrial bail 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~~] offender or [~~defendant's~~] the offender's counsel;

(B) To the prosecuting attorney;

(D) To any psychiatrist, psychologist, or other treatment practitioner who is treating the [~~defendant~~] offender 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. The research entity must be approved and contracted by the Department of Public Safety to protect the confidentiality of the information, insofar as the information is not a public record."

PART III

SECTION 4. The purpose of this part is to amend chapter 804, Hawaii Revised Statutes, to:

(1) Authorize a defendant in custody to petition a court for unsecured bail;

(2) Permit monetary bail to be posted with the police, other law enforcement agency, or the county correctional center where the defendant is held, on a twenty-four hours a day, seven days a week basis;

(3) Create rebuttable presumptions regarding both release and detention and to specify circumstances in which these presumptions apply; and

(4) Require the release of a defendant under the least restrictive conditions required to ensure:

(A) The defendant's appearance; and

(B) The protection of the public.

SECTION 5. Chapter 804, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§804- Unsecured bail. (a) After an amount of bail is determined by a justice or judge pursuant to section 804-9, a defendant in custody may petition the court for unsecured bail. Upon a showing that:

(1) Securing the bail bond or obtaining a surety or sureties to secure the bail bond pursuant to section 804-11.5 would result in significant financial hardship; and

(2) The continued incarceration of the defendant would jeopardize the defendant's ability to maintain employment, remain enrolled in any educational or training program, care for a dependent, continue medical or therapeutic treatment, or maintain housing;

the court may order the defendant released upon the execution of an unsecured financial bond for all or part of the bail amount by the defendant and any additional obligors as may be required by the court, upon the deposit of cash or other security as described in section 804-11.5 for any remaining bail amount not covered by the unsecured financial bond, and subject to any other conditions of release that will reasonably assure the appearance of the defendant in court as required and protect the public.

(b) In the event that a defendant fails to appear in court as required or breaches any other condition of release, the court shall enter an order of forfeiture of the unsecured financial bond.

(1) The defendant's:

(A) Employment status and history;

(B) Family relationships, specifically the nature and extent of those relationships;

(D) Character and reputation;

(E) Ties to the community;

(F) Financial circumstances; and

(G) Prior criminal record, if any, and any prior failures to appear in court;

(2) The agreement of any person to assist the defendant to appear in court when required and to satisfy the conditions of release;

(3) The results of an empirical and validated pretrial risk assessment;

(4) The offense charged and any potential sentence; and

(5) Any other facts the court finds relevant to the defendant's likelihood to appear in court and satisfy the conditions of release."

SECTION 6. Section 804-3, Hawaii Revised Statutes, is amended by amending subsections (a) through (c) to read as follows:

"(a) For purposes of this section[~~, "serious crime"~~]:

"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, and "bail"~~] or a class B or C felony involving violence or threat of violence to any person.

"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 a 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 the person's appearance and to protect the public, unless the prosecution demonstrates by clear and convincing evidence that:

(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 that one or more of the foregoing serious risks exists, the person 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~~] person 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~~] person 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~~] person is on probation or parole for a serious crime involving violence or threat of violence to a person."

SECTION 7. 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 to 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 8. 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 shall impose conditions of release or bail that are the least restrictive conditions required to ensure the accused's appearance and to protect the public."

SECTION 9. 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 person 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 the bail amount at the police department, law enforcement agency, or community correctional center where the person is detained. The monetary bail shall be payable on a twenty-four hours a day, seven days a week basis. Upon posting or payment of bail, the person, the person's representative, or the person's agent shall be provided a bail receipt, and the person shall be released from custody forthwith."

SECTION 10. 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~~] ensure the appearance of the [~~person~~] defendant as required and to [~~assure~~] ensure the safety of any other person or community; or

(10) Imposing any combination of conditions listed above[.];

provided that the court shall impose the least restrictive non-financial conditions required to ensure the defendant's appearance and to 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 11. 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 a reasonable amount based upon all available information, including the offense alleged, the possible punishment upon conviction, and the offender's financial ability to afford bail. The bail amount 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.~~]"

PART IV

SECTION 12. The purpose of this part is to afford pretrial detainees greater and continuing opportunities to be released by:

(1) Requiring the relevant community correctional centers to conduct regular reviews and surveys of the jail population to identify pretrial defendants who may be appropriate for pretrial release or supervision; and

(2) Providing the results of these reviews to the courts who may then consider modifying the previously issued bail order.

SECTION 13. Chapter 353, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"§353- Community correctional centers; periodic reviews of pretrial detainees. (a) The relevant community correctional centers, on a periodic basis but no less frequently than every three months, shall conduct reviews of pretrial detainees to reassess whether a detainee should remain in custody or whether new information or a change in circumstances warrants reconsideration of a detainee's pretrial release or supervision.

(b) For each review conducted pursuant to subsection (a), the relevant community correctional center shall transmit its findings and recommendations to the appropriate court, prosecuting attorney, and defense counsel.

(c) If a motion to modify bail is filed pursuant to a recommendation made pursuant to subsection (b), a hearing shall be scheduled at which the court shall consider the motion."

PART V

SECTION 14. The purpose of this part is to implement and expand alternatives to pretrial detention by:

(1) Expressly including electronic monitoring and home detention as alternatives to incarceration in chapter 804, Hawaii Revised Statutes;

(2) Requiring the judiciary, in consultation with the department of public safety, to develop and adopt a policy for courts to use when assessing whether a defendant's risk of non-appearance or recidivism may be mitigated by home detention or electronic monitoring;

(3) Making appropriations to the department of public safety to support pretrial defendants released from detention on a supervised basis;

(4) Making appropriations to the department of public safety for the electronic monitoring of pretrial defendants, including the acquisition, operation, and upkeep of electronic monitoring devices; and

(5) Requiring the department of public safety to submit a report to the legislature prior to the convening of the regular session of 2020 detailing the department's expenditure plan for the funding appropriated pursuant to this part.

SECTION 15. Section 804-7.1, Hawaii Revised Statutes, is amended to read as follows:

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

(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;

(9) Requiring the defendant to submit to the use of electronic monitoring and surveillance;

(10) Requiring the confinement of the defendant in the defendant's residence;

[~~(9)~~] (11) 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)~~] (12) Imposing any combination of conditions listed above.

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

SECTION 16. The judiciary, in consultation with the department of public safety, shall develop and adopt a policy for courts to use when assessing as a condition for release on bail whether a defendant's risk of non-appearance or recidivism may be mitigated by home detention or electronic monitoring. The policy shall include:

(1) Specific criteria for the court to consider when making this decision; and

(2) A requirement for a court to provide specific findings explaining the court's determination that home detention or electronic monitoring is not appropriate for a defendant.

SECTION 17. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2019-2020 and the same sum or so much thereof as may be necessary for fiscal year 2020-2021 for the intake service centers to support pretrial defendants released from detention on a supervised basis through the establishment or expansion of any of the following support services:

(1) Residential and outpatient treatment programs for substance abuse and mental health disorders;

(2) Housing with support services for homeless defendants;

(3) Day-reporting centers for defendants who may have difficulty complying with regular supervised release;

(4) Electronic monitoring, including the acquisition, operation, and upkeep of electronic monitoring devices; and

(5) Any other alternative programs implemented by the department of public safety pursuant to section 353‑10.5, Hawaii Revised Statutes;

provided that the department of public safety may contract with private service providers for the foregoing services.

The sums appropriated shall be expended by the department of public safety for the purposes of this part.

SECTION 18. The department of public safety shall submit a report to the legislature, no later than twenty days prior to the convening of the regular session of 2020, detailing the department's expenditure plan for the funding appropriated pursuant to this part.

PART VI

SECTION 19. The purpose of this part is to integrate victims' rights into the criminal pretrial system by requiring that intake service centers consider victims' concerns when making pretrial release recommendations.

SECTION 20. (a) No later than December 31, 2020, the department of public safety shall revise the pretrial risk assessment processes currently used by its intake service centers with respect to offenses committed against persons, including offenses involving domestic violence and violation of restraining orders and protective orders, to ensure integration of victims' rights into the criminal pretrial system by requiring consideration of the following factors in making pretrial release recommendations:

(1) Whether the defendant has a history of involvement with the victim of the offense, including any prior police contact that involved both the victim and the defendant, and the status of the relationship between the victim and the defendant, if any;

(2) Whether the defendant has any prior criminal history;

(3) Whether there is a risk that the defendant will re-victimize, stalk, or otherwise harm the victim; and

(4) Any concerns raised by the victim with respect to the defendant's potential release from custody.

(b) The department shall submit a report to the legislature, no later than twenty days prior to the convening of the regular session of 2021, on the progress made in revising the pretrial risk assessment processes, as required by subsection (a).

PART VII

SECTION 21. The purpose of this part is to appropriate moneys to the department of public safety to provide intake service centers with necessary funding, personnel, training, facilities, access, information, and technical support to meet current and projected future responsibilities in conducting timely risk assessments, efficiently disseminating bail reports, and supervising pretrial defendants.

SECTION 22. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2019-2020 and the same sum or so much thereof as may be necessary for fiscal year 2020-2021 for necessary personnel, training, facilities, access, information, and technical support for intake service centers to meet current and projected responsibilities in conducting timely risk assessments, efficiently disseminating bail reports, and supervising pretrial defendants.

The sums appropriated shall be expended by the department of public safety for the purposes of this part.

PART VIII

SECTION 23. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 24. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 25. This Act shall take effect on July 1, 2050.

THE SENATE	S.B. NO.	192
THIRTIETH LEGISLATURE, 2019		S.D. 1
STATE OF HAWAII		H.D. 2