Hawai’i’s Bail Reform Bill Is Responsible, Not Lenient

Opponents of Hawai’i’s bail reform bill, House Bill 2413, are asking residents to fear a change that is remarkably modest.

This bill does not require judges to blindly release dangerous people. It does not remove consideration of public safety from the pretrial decision. And it does not prevent judges from responding when someone poses a real risk or violates the court’s trust.

What H.B. 2413 aims to accomplish is much more fair, while also remaining firm. It creates a presumption of release for lower-level, nonviolent cases while preserving clear risk exceptions. Under the bill, release does not apply if the offense involves assault, terroristic threatening, sexual assault, domestic violence, protective-order violations, a DUI, negligent homicide, or stalking. It also does not apply if the defendant presents “a specific, real, and present threat” to another person or the community, if the person has a “high likelihood of willful flight,” or if the person is currently under supervision—pretrial, probation, or otherwise—at the time of the offense. Moreover, judges may still impose nonmonetary conditions necessary to ensure court appearance and protect the public.

So when critics say the bill “requires judges to release almost everyone arrested,” that is incomplete at best. Rather, low-risk defendants accused of lower-level, nonviolent offenses will generally be released pretrial unless there is an articulable risk in doing so. That is exactly how a system built on the presumption of innocence should work. If someone does not present a risk, why should their access to cash decide whether that person goes home before trial?

There is also nothing in H.B. 2413 that leaves courts powerless if someone fails to appear or picks up new charges on release. The bill expressly makes failure to appear punishable as a violation of release conditions and preserves the ability of prosecutors or pretrial officers to revoke bail and seek sanctions or financial conditions. New charges or violation of other nonmonetary conditions can also prompt a warrant and revocation of bail.

Supporters of H.B. 2413 are not saying public safety is not important. On the contrary, it is of the utmost importance, but because resources are limited, they must be used wisely. Keeping low-risk people in custody consumes bed space, staffing, court time, and taxpayer money that could be used more effectively elsewhere.

I do not doubt that Hawai’i’s judges, prosecutors, and other practitioners care about their communities. I have even personally witnessed how much these professionals do to keep everyone safe. Those who work within Hawai’i’s justice system have done impressive work for years trying to improve fairness and public safety at the same time. Much of H.B. 2413 is an outgrowth of the Hawai’i State Judiciary’s own 2018 Criminal Pretrial Task Force recommendations. This bill is simply a careful next step in a pretrial improvement process Hawai’i itself began.

The better question is whether opponents of bail reform will keep asking jails to do jobs they were never built to do. Jails have become the most expensive default option for people with untreated mental illness, addiction, and those who are homeless. H.B. 2413 is just one step toward addressing this problem, but there will still be more work to do. Hawai’i can and should pair this change with more support for police to execute warrants and solve crimes as well as more support for the Hawai’i State Judiciary to launch automated court reminders and gain access to more robust behavioral-health responses outside jail. One policy cannot solve every problem, but combined efforts would move Hawai’i towards a safer, fairer system.

A process that already allows someone with 77 convictions and numerous additional charges to continue picking up new cases should prompt some humility about the status quo. The answer cannot simply be to defend the current model because it feels familiar. Otherwise, the system will still miss those cases while absurdly sweeping in large numbers of lower-risk defendants. And sweeping those people in can create downstream problems, such as the disruption of jobs and families, or forcing someone to give up a shelter bed, miss treatment, or go off medication, among other consequences.

Change is hard. Even when we know something can be done better, the status quo bias can prevent us from supporting it. But H.B. 2413 is not a leap into the unknown; it is a measured bill that preserves judicial discretion and public safety. It strategically shifts the pretrial system from wealth-based to risk-based. It is a step in the right direction, not a change to fear.