FIXING HAWAII’S BAIL PROBLEM REQUIRES RETURN TO CORE CONSTITUTIONAL PRINCIPLES

by James Waldron Lindblad, Bondsman, A-1 Bonding Hawaii

Hawaii's bail system is in need of reform -- most people involved in the process agree on that. Of course, the real challenge lies in determining what reforms are necessary and how to fund them. Having served as a compensated surety for criminal defendants in Hawaii for nearly 50 years, I am certain that the solution requires a return to the core constitutional principles from which we have strayed. The ACLU of Hawaii, in the Hawaii Bar Association Journal, October, 2024, makes a compelling -- and likely irrefutable -- case that reforms implemented in 2019 have not reduced pretrial incarceration, which was actually its key goal. I agree that things need to change. The challenge we face is how to achieve this while protecting public safety and ensuring that the court process remains efficient.

Hawaii does not have a "money bail" system, and if it did, it would be illegal. There is no such thing as "buying" your way out of jail here. Instead, Hawaii's statutes make it clear that bail is “signing of the recognizance by the defendant and the defendant's surety or sureties, conditioned for the appearance of the defendant at the session of a court of competent jurisdiction.”[1] This aligns with the laws of other states, which essentially treat bail as a tri-partite contract between the court, the surety (whether compensated or not) and the accused. The surety provides an enforceable guarantee that the defendant will appear, with the penalty being the amount set by the court. Courts are responsible for setting a bail amount that is "reasonably calculated" to serve the purposes for which bail is offered. [2]

The U.S. Supreme Court has emphasized that bail is not about "purchasing" freedom but rather providing the option of selecting the "jailers of his own choosing." [3] As William Blackstone famously wrote in his Commentaries, the accused are released into the “friendly custody” of a surety, rather than being sent to jail. [4] It is also important to note that the framers of both the Hawaii and U.S. Constitutions anticipated that private third parties would have the authority to arrest and return the accused to state custody in order to avoid paying a forfeiture. [5]

The notion that someone can simply "purchase" their freedom is contrary to law. Like most states, Hawaii operates under a system of personal sureties, where a third party takes custody of the defendant under a contract. This contract requires forfeiture of the sum set by the court if the defendant fails to appear. To emphasize this point, I often tell people: cash is not a surety. Unlike me, cash cannot arrest someone and return them to jail if they fail to appear in court as required.

Hawaii is not immune to the problems seen in other states. When it comes to progress, it’s tempting to create a "money bail system" straw man, dismantle it, then advocate for release without bail, rather than seek real solutions. As the ACLU pointed out, Honolulu has the longest case disposition times in the United States, [6] an issue that undoubtedly needs to be addressed.

Now, let's address the real issue contributing to the harm, which has nothing to do with bail. As Hawaii Supreme Court Chief Justice Mark Recktenwald noted in 2011, Hawaii has experienced "extensive and increasing delays" in the pretrial process. [7] In fact, as of 2024, there is no evidence to suggest these delays have done anything but get worse. While that may sound like a simple observation, the reality is that prolonged pretrial delays are the primary cause of growing pretrial jail populations. This, in turn, leads to all the negative consequences of over-incarcerating individuals awaiting trial.

To illustrate this further, I call your attention to a statewide study by the PEW Charitable Trusts of Michigan's system, which found that 82% of pretrial jail costs were driven by just 17% of defendants. [8] Who were they? These were defendants held for 30 days or more, usually on serious charges or non-bailable holds. The remaining 83% of defendants, who stayed less than 30 days, accounted for only 18% of total pretrial jail costs. This is similar to national data from PEW Charitable trusts that found that 85% of jail costs are caused by a mere 21% of defendants.[9] Therefore, even if Hawaii were to release half of its pretrial population -- those considered low-risk, who typically stay under 30 days -- it would only reduce overall jail costs by 8.5% over the course of a year.

The increase in time to a speedy trial is likely the main driving force of rising pretrial incarceration rates in Hawaii, as well as across the United States. For example, the federal criminal justice system has seen the average time to case disposition grow from 60 days in the mid-1980s to nearly a year today -- a rise of over 600%.[10] If the PEW study results from Michigan were applicable to Hawaii, which warrants its own study, reducing the disposition time for the 17% of cases that last 30 days or more by just 20% could have a significant impact. This reduction could lead to a 16.4% decrease in pretrial incarceration. Cutting those times in half could lower pretrial jail costs by 41%. These reductions in disposition times would not negatively impact public safety; they would simply expedite the process of determining guilt or innocence, the critical turning point in a criminal case. In fact, reducing disposition times could enhance public safety, as swiftness of punishment -- along with the certainty of being caught -- is one of the two key evidence-based methods for increasing crime deterrence. For victims, the well-worn phrase "justice delayed is justice denied" underscores yet another reason why we must accelerate the process.

It is evident that the judiciary is not currently equipped to conduct the kind of robust bail hearings the ACLU envisions -- and perhaps that also needs to change. Achieving this would certainly require increased investment in the judiciary, something I would fully support. Custodial decisions in Hawaii should be grounded in thorough due process overseen by a judge, not partially delegated to a confidential pretrial report generated by a computer program from Columbus, Ohio.

In practice, the judiciary may be overly relying on an algorithm provided by pretrial services as a shortcut to due process. Civil rights groups on the mainland have criticized this algorithm, first for being racially biased[11] and second for being excessively harsh, which often leads to higher bail amounts and burdens defendants with over-supervision during pretrial. This approach essentially sets them up for failure, as the necessary criminal interventions and services to address their criminogenic needs are not sufficiently available during this period. Moreover, if bail amounts are indeed set too high -- beyond the reach of third-party sureties -- this poses a significant issue. Defendants with high bail are likely to fall into the 30 days or longer category, where there is the greatest potential for reducing pretrial incarceration. This group is also the most likely to be released into the custody of a surety rather than on their own recognizance, which would be a more accountable solution to over-incarceration. [12] Such an arrangement involves a transfer of custody through a contract, rather than relying solely on a defendant's promise to remain crime-free and appear in court. As we know, not all defendants should simply be trusted. We need a middle ground for situations where trust is lacking and the solution lies in implementing incentivized and accountable personal sureties.

The examples cited by the ACLU reinforce the argument that this is not fundamentally a “money bail” issue. Rather, it highlights a lack of timeliness in case dispositions. The Kalief Browder case, cited by ACLU, has long been debunked as a bail issue. [13] In this case, a juvenile spent over two years at Rikers Island, New York, for a minor charge with a no-bail hold placed on him due to his probation for another minor offense. Keeping a juvenile on a misdemeanor charge under a non-bailable hold for two years is not a “money bail” issue. [14] In fact, Mr. Browder’s family attempted to secure his release and had the funds to do so until the court recognized an error and imposed the no-bail hold. [15] Had the hold not been in place and “money bail” been available, Mr. Browder would likely have been released and his life would have continued. The other cases cited by the ACLU similarly illustrate this point. While it is true that pretrial detention harms individuals and must be minimized, the duration of that detention is the most destructive and costly aspect. The delay of a trial on a misdemeanor charge beyond the maximum sentence is a tragic failure of justice that could have been entirely avoided with the enforcement of a robust speedy trial rule.

If speedy trials and timely case dispositions are the constraints limiting the orderly processing of criminal cases as envisioned by the framers of the Constitution, it's crucial to ask: how are Hawaii's courts performing in this regard? Unfortunately, Hawaii has not submitted statewide data to the National Center for State Courts, thus there is no comparative data to assess how Hawaii is actually doing. A search of available online resources yields no information on the timeliness of case handling in Hawaii, particularly for defendants in custody. Additionally, there is no trend data to assess changes since Chief Justice Recktenwald noted in 2011 that delays were overwhelming the criminal process.

All those concerned about this issue should consider the American Bar Association's recommendation for differential pretrial case management. This means we must prioritize speeding up in-custody cases, even if it requires delaying out-of-custody cases in the absence of additional resources. That said, a comprehensive analysis of the current situation is sorely lacking. Without such an analysis, we risk blindly addressing the problem while potentially overlooking its most significant drivers. I would welcome the opportunity to be part of this comprehensive study, whether conducted by PEW Charitable Trusts or another organization, as I believe a thorough examination of the system is essential for finding workable solutions to these challenges.

Over the past fifteen years, the belief that 'money bail' discriminates against the poor has gained prominence. This shift has overshadowed what was once a straightforward system of accountable sureties, which were responsible for taking private custody of defendants and ensuring either their return to court or payment of bail. The classic right to bail — allowing a person to post bail or remain in jail, a principle that dates back to before the Magna Carta — has undergone a significant shift in perception. It is now viewed as a civil rights violation rather than a mechanism meant to promote liberty. Appellate courts at both the federal and state levels have firmly rejected the legal right to affordable bail, acknowledging that while the ability to pay and financial resources are relevant factors in assessing excessive bail, they cannot be the sole determinants. Furthermore, concerns about equal protection can be effectively addressed through robust due process. [16]

The financial incentives inherent in bail transactions are crucial to consider. When the law focuses solely on the defendant's ability to post bail, it overlooks the role of third parties, who typically serve as the true sureties qualified by statute. This narrow focus reduces the motivation for defendants to show up in court because no third-party is held equally responsible for making sure they do. When private third parties make a guarantee, they are compelled to fulfill their obligations and face significant financial penalties if they fail to do so. In reality, very few defendants self-bail; in the vast majority of cases, a third party steps in to provide bail. Typically, these defendants cannot afford to post bail themselves, so a third party comes to their aid. Ignoring this distinction may lead to releases that lack incentives for appearance, even when a third party is available to take custody of the defendant at no cost to the state.

It is essential for communities, judges, lawyers and everyone in Hawaii to recognize this key fact: bail represents a transfer of custody from the defendant to their community, which is vouching for them, rather than a mere “purchase” of freedom. This institution is critical not only for protecting the rights of defendants but also for upholding the community's fundamental right to hold the government accountable, particularly when it fails to prosecute cases in a timely manner or abuses its power.

The ACLU argues that judges are overlooking unsecured bail as an alternative, but national research from the U.S. Department of Justice supports the notion that this option no more successful than a release on own recognizance. [17] As a result, judges in Hawaii would be better off releasing most defendants on their own recognizance rather than setting unsecured bail that is unlikely to be collected.

Another important point to consider is that the ACLU of Hawaii and others are advocating for defendants to be released on the “least restrictive bail.” This contrasts with the concept of least restrictive non-monetary conditions. In the context of bail reform, the issue of “least restrictive bail” has emerged as a frequent topic of appeal in New York’s bail reforms, particularly because it lacks clarity and did not exist in common law until it was introduced legislatively in the 21st century. While the principle of least restrictive or least onerous conditions has been established for non-monetary release conditions for centuries, the term “least restrictive” has only recently been applied to bail amounts. Historically, the focus on bail has centered on whether it was excessive, rather than whether it was the least restrictive.

In conclusion, the institution of bail, supported by sufficient sureties, is designed to maximize defendants' freedom in the most accountable way possible, ensuring their custody is entrusted to a surety. This institution has existed long before the modern era of mass incarceration. Transforming it back to a mechanism that promotes liberty instead of one seen as discriminatory against the poor is a critical issue to consider as we move forward with bail reform in Hawaii.

Reflecting on my fifty years of experience in this field, I am convinced that returning to the fundamental principles of bail and distinguishing between true bail issues and other challenges is the only viable path forward. We need a more efficient system for determining guilt that minimizes prolonged pretrial incarceration while maximizing both accountability within the judicial process and the freedom of defendants. The increasing disdain for the institution of bail supported by sureties has significantly contributed to the rise of generational mass incarceration. Revitalizing this institution in Hawaii is essential to addressing this pressing issue.

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[1] Hawaii Revised Statutes §804-1.

[2] Stack v. Boyle, 342 U.S. 1 (1951).

[3] Reese v. United States, 76 U.S. (9 Wall.) 13, 21 (1869).

[4] https://press-pubs.uchicago.edu/founders/documents/amendVIIIs4.html (last accessed October 15, 2024).

[5] Taylor v. Taintor, 82 U.S. 366 (1872).

[6] Jongwook “Wookie” Kim & Samantha McNichols, A Closer Look at Hawaii’s Bail Statutes and Practices, Hawaii Bar Association Journal, October, 2024, at 4.

[7] Id. at 11.

[8] https://www.courts.michigan.gov/48e56e/siteassets/committees,-boards-special-initiatves/jails/executive-summary-of-report_final.pdf

[9] https://www.pewtrusts.org/en/research-and-analysis/articles/2020/06/23/small-but-growing-group-incarcerated-for-a-month-or-more-has-kept-jail-populations-high

[10] See https://freedomdenied.law.uchicago.edu/report

[11] https://civilrightsdocs.info/pdf/criminal-justice/Pretrial-Risk-Assessment-Full.pdf

[12] Helland, Eric & Tabarrok, Alexander, 2004. "The Fugitive: Evidence on Public versus Private Law Enforcement from Bail Jumping," Journal of Law and Economics, University of Chicago Press, vol. 47(1), pages 93-122, April.

[13] https://www.themarshallproject.org/2015/06/09/no-bail-less-hope-the-death-of-kalief-browder

[14] Id.

[15] Id.

[16] See Bradley Hester v. Matthew Gentry, et al., No. 18-13894 (11th Cir. 2022) (“This is not discrimination against the indigent. All arrestees are presumptively entitled to pretrial release as soon as they make a showing that they will appear at trial—either by posting bail or by appearing at a hearing and attempting to show through other means that they will appear at trial.”).

[17] https://bjs.ojp.gov/content/pub/pdf/prfdsc.pdf