END CASH BAIL
Chesa Boudin, a former public defender who won the District Attorney's race in San Francisco last November, summed it up perfectly when he said: "we let the wealthy go free on bail, even if they're dangerous, while the poor remain behind bars, even if they're innocent." Jailing people because they are poor amounts to "the criminalization of poverty"1 and underminds the sense of fairness we should expect in the criminal justice system.
How Bail Works. When a person is charged with a crime, a judge has to make a decision as to whether or not that person should be released pending trial. Pretrial detention is appropriate only if the defendant is dangerous to themselves or others, or is a flight risk. If they are neither, they must be released with the least restrictive conditions that ensure their appearance in court and protect public safety. The decision on whether or not to release a defendant pretrial is critical because the person has not been convicted of a crime, and both the Hawaiʻi and U.S. Constitutions provide that a person cannot be deprived of their liberty without due process of law, which in this case means a trial.
If the court sets bail, the defendant must post the full bail amount with the court. If they do not have the ability to pay the bail amount, they can purchase a bail bond from a bonding agency that will normally require the defendant to pay a non-refundable fee of 10% of the bond amount before they will post the bond with the court.
As a public defender, I know firsthand that far too often judges set bail that the defendant cannot afford, which means that the defendant will have to remain in jail for months, or even a year or more, awaiting trial and that can have a devastating effect on the defendant and his or her family. If the primary income producer loses their job because they are in jail, the family may lose their home, their car, health insurance, and go deep into debt just trying to survive.
Cash Bail Makes Us Less Safe. Keeping people in jail pending trial is not only unfair, but it is bad public policy because it promotes criminal activity and makes our communities less safe. A study by the Arnold Foundation2 reported that detaining low-and-moderate risk defendants for even a few days strongly correlates with high rates of new criminal activity both during the pretrial period and years after the case disposition. When held 2-3 days, low-risk defendants are almost 40% more likely to commit new crimes before pretrial that equivalent defendants held no more than 24 hours. And when held for 8-14 days, low-risk defendants are 51% more likely to commit another crime within two years after completion of their cases than equivalent defendants no more than 24 hours. As the length of pretrial detention increases up to 30 days, recidivism rates for low-and-moderate risk defendants are increases significantly.
There Are Many Good Alternatives to Cash Bail. There are better and less expensive ways to ensure a defendant's appearance at pretrial hearings and trial than cash bail. Alternatives include the use of unsecured signature bonds in which the defendant is released without putting up any money, but is required to pay a specified amount if he or she fails to appear when required. There is also an increasing reliance on risk assessment instruments that help judges assess whether a defendant will appear or not. A variety of pretrial services such as targeted interventions, referrals to drug programs, GPS monitoring, court call reminders, and frequent check-ins with court personnel all are viable alternatives to cash bail.
Bail Reform Would Save Millions of Dollars. The State currently spends about $209,000 per day to incarcerate over 1,000 people statewide who cannot make bail. That's over $1 million every five days and $76 million a year.
At least 80% of pretrial detainees are charged with relatively low-level offenses.3 If the State adopted an alternative to cash bail, it's safe to assume that 80% of the defendants charged with these low-level offenses would be released, saving the State $167,000 per day or $61 million a year.4 It would also mean fewer beds would be needed in the new jail currently being planned for Oʻahu and that would save $198 million in construction costs and millions more over the life of the jail because a smaller jail would mean reduced operating and maintenance costs, as well as fewer correctional officers and staff.5
Open letter from Vanita Gupta, Principal Deputy Assistant Attorney General, Civil Rights Division, and Lisa Foster, Director, Office for Access to Justice, Civil Rights Division, United States Department of Justice, March 14, 2016, https://www.justice.gov/crt/file/832461/download.
Christopher T. Lowencamp, Marie VanNostrand, and Alexander Holsinger, The Hidden Cost of Pretrial Detention, The Arnold Foundation, November 2013.
The 80% figure is based on data the Department of Public Safety provided to the House Concurrent Resolution 85 Task Force on Prison Reform in May 2018. Class C felonies encompass a wide range of significant but relatively low-level offenses ranging from theft, assault, and possession of a dangerous drug, to the unlawful shipment of cigarettes, the theft of cable television services, and false labeling of Hawaiian-grown coffee. Class C felonies are punishable by up to 5 years in prison and a fine of up to $10,000. See HRS.§706-660 and HRS §706-640.
In the six-month period June to November 2019, there were 1,056 pretrial detainees statewide. The daily cost of incarcerating a Hawaiʻi inmate is $198 a day, so 1,056 inmates x $198/day = $209.000/day. Reducing the statewide pretrial population of 1,056 by 80%, or 845 inmates, would bring the pretrial population down to 211. 211 inmates at $198/day = $42,000/ day. Reducing the daily cost of pretrial inmates from $209,000 to $42,000 a day is a savings of $167,000 a day.
In the six-month period June to November 2019 there were, on average, 610 pretrial detainees at OCCC. Reducing the OCCC population of 610 by 80%, or 488 inmates, means we would need 488 fewer beds at the new jail. The per bed cost for the new jail is $406,000, so 488 fewer beds x $406,000/bed = $198 million saving in construction costs.