There are a lot of things being said by opponents of the bail reform bill awaiting Gov. Ige’s signature (HB1567) that are just plain wrong.
Yesterday’s post here about the bill drew a quick comment that began with one of the basic errors.
A frequent commenter, who used the name “Bert” for this comment, wrote: “The defenders of Bail Reform have failed to incorporate victims of crime, who live in daily fear. Many beneficiaries of Bail Reform will be repeat offenders.”
No, that’s just plain wrong. The bill as proposed excludes most repeat offenders, and lots of others.
Here’s the section from the bill itself listing the types of offenses that will not be covered by the bill. Anyone charged with assault, abuse of a family member, burglary, violating a TRO, sexual assault, DUI, and others listed will not be eligible for release under the bill. Neither will repeat offenders, anyone charged and awaiting trial or sentencing, or with any misdemeanor conviction within the last year, or a felony conviction within eight years.
Quoted directly from the bill:
(b) This section shall not apply if:
(1) The offense involves:
(A) Assault;
(B) Terroristic threatening;
(C) Sexual assault;
(D) Abuse of family or household members;
(E) Violation of a temporary restraining order;
(F) Violation of an order for protection;
(G) Violation of a restraining order or injunction;
(H) Operating a vehicle under the influence of an intoxicant;
(I) Negligent homicide;
(J) A minor;
(K) Unauthorized entry into a dwelling;
(L) Promoting a dangerous drug in the third degree;
(M) Habitual property crime; or
(N) Any other crime of violence; or(2) One or more of the following apply:
(A) The defendant has a history of non-appearance in the last twenty-four months;
(B) The defendant has at least one prior conviction for a misdemeanor crime of violence or felony crime of violence within the last eight years;
(C) The defendant was pending trial or sentencing at the time of arrest;
(D) The defendant was on probation, parole, or conditional release at the time of arrest;
(E) The defendant is also concurrently charged with a violent petty misdemeanor, a violent misdemeanor, or any felony offense arising from the same or separate incident; or
(F) The defendant presents a risk of danger to any other person or to the community, or a risk of recidivism.
What’s worse, in my view, is that the agencies now urging the bill’s veto did not raise their objections while the legislature was considering the measure, which would have allowed their objections to be evaluated based on the best available information. By essentially boycotting the bill and coming forward after the session, they avoid having their objections subject to the careful scrutiny that the bill itself went through.
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Thanks for laying this out there for the uninformed and the “law & order at the cost of liberty” crowd. Ironic since the latter are always the ones crying and whinging about freedom, liberty and oppressive government all while pushing for more and more punitive laws for the most trivial little things (or things that hold down people of color and…WOMEN). All until it happens to them. Which, inevitably, it ALWAYS does.
It’s time to curb and stop feeding the Bail Bond Industrial Complex in this country. This should be “bipartisan” in acceptance but, you know, everything gets twisted depending how you want your ideology to prevail.
That long list of situations not covered makes me wonder how many will benefit from the bill? I am also curious what the rationale is for excluding minors.
Wow, that was a great kick in the shins of Old Man Lind! Ouch, that smacked Him right in His idealistic Island of Pala. It must be an incredible long weekend! We’re not worthy of not one, two, but three stories on a Sunday!!!
Please rush wine and weed to Kahala. Poor Ian has met “Father Time” and He moves so slow!
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Fair enough. Try and conduct research into convicted felons in Hawaii and see how many actually serve any prison time. I have seen some people given probation for armed robbery, firearms possession (while being a convicted felon).
Remember that case in Kakaako a few years ago where two Japanese tourists were brutally assaulted in a public bathroom in broad daylight? Do you know that the defendant received probation for that crime? I p will bet you didn’t know that.
That Kakaako defendant was later sent to prison for up to ten years after his probation was revoked for committing a second assault — which he would not have been able to commit if he had been sent to prison after the outrageous first assault.
Very true!
How is that relevant? Bails purpose is not to protect the public, nor does it. Unless you are arguing that a rich person out on bail or ROR is less likely to become a repeat offender versus a poor person that’s out?
Another thing to consider is that Hawaii finds a way to undercut prison sentences meted out by Judges via the Hawaii Paroling Authority, since the Hawaii Paroling Authority has the FINAL say regarding the actual amount of time a person must serve in prison. The Judge hands down the sentence, but the Hawaii Paroling Authority sets the minimum term a defendant must serve. Is that even constitutional? Has anyone ever considered challenging this in court (United States Supreme Court is where I predict it would ultimately wind up).
How many other states have such a mechanism in place, where a Judge’s supposed final word and decision regarding sentencing can be easily undercut by a second government entity?
As I understand it, the Hawaii state government is supposed to be split into three branch to ensure a balance of power and authority and to ensure justice and fairness to all citizens:
1. Executive branch
2. Judicial branch
3. Legislative branch
Again, I ask– does having a Hawaii Paroling Authority violate the U.S. Constitution by undermining the powers of the Judicial Branch?
No, it doesn’t violate the Constitution. It’s called indeterminate sentencing, and it’s done in about 30 states. But yes, it’s usually a judge who sets a minimum sentence, then a parole board later has the final say and decides when the defendant is actually released. Here, the judge can grant various forms of probation or sentence a defendant to the open term set by statute, and a parole board then sets both minimum term on the front end (unless the defendant is convicted of an offense that by law carries a mandatory minimum term) and decides actual parole date on the back end. Will the Kakaako creep now serve the full 10-year open term? It’s up to the parole board (Paroling Authority).
By the way, the news media gets this wrong virtually every time, and typically reports that a judge sentenced a defendant “to ten years,” when the actual sentence is “up to ten years,” actual term to be determined by the Paroling Authority.
I appreciate your reply!
No there is no violation of either the Hawaii or US Constitution. Prior to parole board, Hawaii judges set the minimum sentences.
Let’s not split hairs. The only time Hawaii judges set the minimum term is when a mandatory term is prescribed by statute and so there is no other term of imprisonment that the judge could impose. Otherwise, the term is an “open term” with an upper limit.
Dear Whatmeworry,
You are incorrect. I invite you to my Bail Bond Office and I invite you to arraignment and plea every Monday and Thursday at 8:30 AM., for felony pretrial defendant arraignments where bail hearings are routinely held. I will share with you my 40 plus years of experience as both bail agent, where I file bail bonds to effect release and as a former pretrial worker where I personally released many defendants. You will see first hand the difficult position are judges are in and you will witness first hand on a case by case basis how they make decisions. I think if you look at accurate data for yourself you may change your opinion about the so-called bail bond industrial complex which, is not a complex at all. People like me, act as sureties for qualified persons who have parents or other indemnities to assist them. That means some defendants have family who will assist them in paying bail. Others have no person to call as they have burned every friend and family bridge already. This is extremely important if you look at the ACLU model of; 1) release or 2) detain, which as you already know is how the federal pretrial bail system is modeled. In effect the feds are detaining somewhere between 34% and 75% of defendants. I am sure you and others do not want release or detain for Hawaii. Call me at 808-780-8887 and I will arrange for you to see arraignments and my bail bond office. After all, those persons with saving can pay cash bail while many others hire bail agents like me for a fee. There are others that make use of the ISC or Intake Service Center for supervised release. Either way, there are no persons with jobs or with housing or with children that are left languishing. This is a myth and not true. Besides, Hawaii is a leader in pretrial justice and already has a high-functioning pretrial process in the top 10% of all states. Please look at who is at OCCC. Look at the data. Last time I checked there were fewer than 60 pretrial misdemeanants at OCCC. Not thousands and this is out of 20,000 HPD annual arrests. I look forward to meeting you and any other person who opposed or favored HB1567, the chief reason being, we must trust our judges. Legislators that want to tie the hands of judges forcing them do as they are told will not work and is not in the public interest. Surety and bail is completely 100% individual in nature. Case by case. All cases differ. Google suretyship. Find out for yourself how Hawaii rates nationwide. You will see as those persons in authority who wrote the HCR 134 Task Force Report that Hawaii is a leader in pretrial justice. Money bail is proven and does work in the large majority of cases and we have the Intake Service Center to assist those persons without money or an address or a job or a cell phone. I believe no person should in jail simply of lack of funds and I have said so since at least 1980. Please talk to police, pubic defenders, jail guards, court persons or any other person who has been to HPD, OCCC., or the courthouse or someone who had a personal experience with arrest and pretrial justice. What if your loved one was arrested? Should it be citation arrest? Book and release or book and ask for bail? Or wait for a judge to decide if you are to be released or detained. What of the middle ground? These matters must be fully argued and we have the right people in office right now to argue these issues fully. Personally I prefers bail over detention as did by friend at the ACLU, whose name is Alvin Bronstein. We all believe there are too many people in jail but let us all get the data and facts correct. No person should be held simply for lack of funds.
No violation of Hawaii and US Constitutions. Prior to parole board setting minimum sentences, Hawaii’s judges set the minimum term.
Let’s toss something else into that mix, then. Just because some court sentencing mechanism has been in place for years, decades, even. …does NOT mean it’s Constitutional. It could be that no one ever bothered to challenge that mechanism in court (United States Supreme Court).
I still feel that having a Hawaii Paroling Authority set the mandatory minimum sentence violates the Constitution by undercutting the Judiciary Branch.
If the Judges are the ones who set the mandatory minimum term, then I would agree it would be Constitutional.