HB127

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:

(1) The court to enter on the record its written findings regarding the necessity of the conditions imposed on a defendant's release; and

(2) Bail to be set in an amount that the defendant can afford based on certain factors.

SECTION 2. Section 804-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(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. The court shall enter on the record its written findings regarding why the conditions imposed on the defendant are necessary to ensure defendant's appearance, or to protect the public, or both.

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[:] no bail shall be allowed:

(1) [~~No bail shall be allowed after~~] After conviction and [~~prior to~~] before 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~~] Pending appeal of a felony conviction where a sentence of imprisonment has been imposed; and

(3) [~~No bail shall be allowed pendin~~g] 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."

SECTION 3. 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 and shall be set in a reasonable amount based upon all available information, including the offense alleged, the possible punishment upon conviction, and the defendant's financial ability to afford bail.

Any bail amount set, whether secured or unsecured, shall be in an amount that the person is able to afford based on the person'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 person 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 person is unable to pay any bail amount; and

(3) If the person'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 individual could reasonably pay within forty hours of arrest, subject to the exclusions in paragraph (1).

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."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect on July 1, 2025.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	127
THIRTY-THIRD LEGISLATURE, 2025
STATE OF HAWAII