Bill Text: HI HB1603 | 2024 | Regular Session | Introduced

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Bill Title: Relating To Criminal Justice Reform.

Spectrum: Partisan Bill (Democrat 9-0)

Status: (Introduced) 2024-02-22 - The committee(s) on JHA recommend(s) that the measure be deferred. [HB1603 Detail]

Download: Hawaii-2024-HB1603-Introduced.html

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HOUSE OF REPRESENTATIVES	H.B. NO.	1603
THIRTY-SECOND LEGISLATURE, 2024
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to criminal justice reform.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  The legislature finds that the justice system should be truly reflective of the equal protection and due process rights enshrined in the federal and state constitutions and of the fundamental concept of presumption of innocence until guilt is proven.  Accordingly, courts should presume that defendants in criminal cases who have not been found guilty of a crime should be entitled to release unless release would be inappropriate for a particular defendant because no condition or combination of conditions of release will assure the person's return to court when required, or the safety of other persons.

     The legislature further finds that pretrial drug testing programs started appearing regularly in the late 1970s and early 1980s, following research that supported drug testing and treatment as ways to reduce recidivism among people convicted of a crime.  However, research on the impact of drug testing on pretrial court appearances and arrest-free rates has found that there is no clear correlation between drug testing and improved pretrial outcomes; the impact of noncompliance with drug testing on the likelihood of pretrial failure is uncertain; cost-benefit considerations must be made; and drug testing can lead to poorer pretrial outcomes among people assessed as more likely to succeed.  Therefore, the denial of pretrial release based solely on a defendant's positive test for drug use should be prohibited.

     The legislature also finds that pretrial incarceration is the primary driver of severe overcrowding in community correctional centers, which becomes a health and safety issue for defendants in custody as well as staff who work in correctional facilities.  Further, prolonged pretrial detention gives the illusion that justice is being served by keeping an alleged offender behind bars, but often has the unjust effect of forcing a defendant to plead guilty even when the defendant may have prevailed at trial, for the sake of hastening the defendant's release from custody and return to normal life.

     Accordingly, the purpose of this Act is to introduce meaningful reforms to the manner of determining eligibility for pretrial release and promote greater fairness and equity in the criminal courts by:

     (1)  Requiring that copies of bail reports be provided to the parties, including the defendant's counsel, as soon as available;

     (2)  Requiring that any bail set by the court be in an amount that the defendant is able to afford, under certain conditions;

     (3)  Prohibiting the denial of pretrial release based solely upon certain factors, such as the defendant having recently had one positive test for drug use;

     (4)  Requiring the automatic issuance of no-contact orders in assaultive cases;

     (5)  Prohibiting a defendant from being arrested for a violation of conditions of release solely because the defendant recently had one positive test for drug use;

     (6)  Providing that with respect to sanctions for violations of conditions of release, the prosecution must prove, by a preponderance of the evidence, that the defendant intentionally or knowingly violated reasonable conditions of release; and

     (7)  Requiring the court, in certain cases when revoking a defendant's release, to enter findings that no conditions can be imposed that would ensure the defendant's appearance and the safety of the public and that the revocation is therefore necessary as an action of last resort.

     SECTION 2.  Section 353-10, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  The centers shall:

     (1)  Provide orientation, guidance, and technical services;

     (2)  Provide social-medical-psychiatric-psychological diagnostic evaluation;

     (3)  Conduct internal pretrial risk assessments on adult offenders within three working days of admission to a community correctional center; provided that this paragraph shall not apply to persons subject to county or state detainers or holds, persons detained without bail, persons detained for probation violation, persons facing revocation of bail or supervised release, and persons who have had a pretrial risk assessment completed [prior to] before admission to a community correctional center.  For purposes of this paragraph, "pretrial risk assessment" means an objective, research-based, validated assessment tool that measures an offender's risk of flight, risk of criminal conduct, and risk of violence or harm to any person or the general public while on pretrial release pending adjudication.  The pretrial risk assessment tool and procedures associated with its administration shall be periodically reviewed and subject to further validation at least every five years to evaluate the effectiveness of the tool and the procedures associated with its administration.  The findings of periodic reviews shall be publicly reported;

     (4)  Provide correctional prescription program planning and security classification;

     (5)  Provide other personal and correctional services as needed for both detained and committed persons;

     (6)  Monitor and record the progress of persons assigned to correctional facilities who undergo further treatment or who participate in prescribed correctional programs;

     (7)  Provide continuing supervision and control of persons ordered to be placed on pretrial supervision by the court and persons ordered by the director;

     (8)  Make inquiry with the offender concerning the offender's financial circumstances and include this information in the bail report; provided that the department of public safety's pretrial services officers shall be provided limited access for the purpose of viewing other state agencies' relevant data related to an offender's employment wages and taxes; and

     (9)  Provide pretrial bail reports to the courts on adult offenders, within three working days of admission of the offender to a community correctional center, that are ordered by the court or consented to by the offender.  A complete copy of the executed pretrial risk assessment delineating the scored items, the total score, any administrative scoring overrides applied, and written explanations for administrative scoring overrides, shall be included in the pretrial bail report.  The pretrial bail reports shall be confidential and shall not be deemed to be public records.  A copy of a pretrial bail report shall be provided as soon as available to only:

          (A)  [To the] The defendant or defendant's counsel;

          (B)  [To the] The prosecuting attorney;

          (C)  [To the] The department of public safety;

          (D)  [To any] Any psychiatrist, psychologist, or other treatment practitioner who is treating the defendant pursuant to a court order;

          (E)  Upon request, [to] the adult client services branch; and

          (F)  In accordance with applicable laws, persons[,] or entities doing research[.  The]; provided that the research entity [must] shall be approved and contracted by the department of public safety to protect the confidentiality of the information, insofar as the information is not a public record."

     SECTION 3.  Section 804-3, Hawaii Revised Statutes, is amended to read as follows:

     "§804-3  [Bailable] Pretrial release; bailable offenses.  (a)  For purposes of this section[, "serious crime"]:

     "Bail" includes release on one's own recognizance, supervised release, and conditional release.

     "Serious crime" means [murder or attempted murder]:

     (1)  Failing to render aid under section 291C-14;

     (2)  Murder in the first degree[, murder or attempted murder] under section 707-701;

     (3)  Murder in the second degree[,] under section 707‑701.5;

     (4)  Attempted murder in the first or second degree; or [a]

     (5)  Any other class A or B felony, except forgery in the first degree [and failing to render aid under section 291C-12, and "bail" includes release on one's own recognizance, supervised release, and conditional release.] under section 708-851.

     (b)  Any person charged with a criminal offense shall be bailable by sufficient sureties; provided that bail may be denied [where] if the charge is for a serious crime, and[:] one or more of the following criteria apply:

     (1)  There is a serious risk that the person will [flee;] willfully abscond;

     (2)  There is a serious risk that the person will obstruct or attempt to obstruct justice, or therefore, injure, or intimidate, or attempt to thereafter, injure, or intimidate, a prospective witness or juror[;] with the purpose of obstructing or attempting to obstruct justice;

     (3)  There is a serious risk that the person poses a significant danger to [any] a specific or reasonably identifiable person or persons, based upon an articulable risk to a specific person or the community; or

     (4)  There is a serious risk that the person will engage in illegal activity.

     (c)  [Under] There shall be a rebuttable presumption under subsection (b)(1) [a rebuttable presumption arises] that there is a serious risk that the person will [flee] willfully abscond or [will] not appear as directed by the court where the person is charged with a criminal offense punishable by imprisonment for life without possibility of parole.  [For purposes of] There  shall be a rebuttable presumption under subsection (b)(3) and (4) [a rebuttable presumption arises] that the person poses a serious danger to any person or community or will engage in illegal activity [where] if the court determines that[:] the defendant:

     (1)  [The defendant has] Has been previously convicted of a serious crime involving violence against a person within the ten-year period preceding the date of the charge against the defendant;

     (2)  [The defendant is] Is already on bail on a felony charge involving violence against a person; or

     (3)  [The defendant is] Is on probation or parole for a serious crime involving violence to a person.

     (d)  If[, after] the court finds pursuant to a hearing [the court finds] that no condition or combination of conditions will reasonably assure the appearance of the person when required or the safety of any other person, persons, or community, bail may be denied[.]; provided that the court shall enter on the record its findings with respect to the detention decision.

     (e)  Any bail set by the court shall be in an amount that the person is able to afford, based upon information in the bail report or the person's sworn affidavit or testimony, subject to any rebuttable evidence the prosecution may introduce, at the release hearing; provided that in setting bail, 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 funds, and any income that is at or below the federal poverty level.  If the person has no source of income other than public benefits or has a household income that is at or below the federal poverty level, the person shall be deemed unable to pay bail in any amount.  If the person has a household income that is above the federal poverty level and that is not derived from public benefits, the court shall consider an amount that the person could reasonably afford to pay within forty hours of the person's arrest."

     SECTION 4.  Section 804-7.1, Hawaii Revised Statutes, is amended to read as follows:

     "§804-7.1  Conditions of release on bail, recognizance, or supervised release.  (a)  Upon a showing that there exists a danger that the defendant will commit a serious crime as defined in section 804-3(a) [or will], seek to intimidate witnesses, or [will] otherwise unlawfully interfere with the orderly administration of justice, the judicial officer named in section 804-5 may deny the defendant's release on bail, recognizance, or supervised release[.]; provided that denial of release on bail, recognizance, or supervised release shall not be based solely upon the defendant having:

     (1)  Recently had one positive test for drug use;

     (2)  A prior criminal history, if the history contains only arrests but no convictions; or

     (3)  A prior revocation of release on bail, recognizance, or supervised release, regardless of whether in a prior criminal case or in the instant case.

     (b)  Upon the defendant's release on bail, recognizance, or supervised release, [however,] the court may enter an order:

     (1)  Prohibiting the defendant from approaching or communicating with particular persons or classes of persons, [except] including the complainant; provided that when the alleged offense involves physical or sexual assault, a written no-contact order prohibiting the defendant from having contact in any form with the complainant or with any other witness shall automatically issue unless the complainant requests otherwise, and the defendant shall be advised of the no-contact order while on the record; provided further that no [such] no-contact order [should] issued under this paragraph shall be deemed to prohibit any lawful and ethical activity of defendant's counsel;

     (2)  Prohibiting the defendant from going to certain described geographical areas or premises;

     (3)  Prohibiting the defendant from possessing any dangerous weapon, engaging in certain described activities, or indulging in intoxicating liquors or certain drugs;

     (4)  Requiring the defendant to report regularly to and remain under the supervision of an officer of the court;

     (5)  Requiring the defendant to maintain employment, or, if unemployed, to actively seek employment, or attend an educational or vocational institution;

     (6)  Requiring the defendant to comply with a specified curfew;

     (7)  Requiring the defendant to seek and maintain mental health treatment or testing, including treatment for drug or alcohol dependency, or to remain in a specified institution for that purpose;

     (8)  Requiring the defendant to remain in the jurisdiction of the judicial circuit in which the charges are pending unless approval is obtained from a court of competent jurisdiction to leave the jurisdiction of the court;

     (9)  Requiring the defendant to submit to the use of electronic monitoring and surveillance;

    (10)  Requiring the confinement of the defendant in the defendant's residence;

    (11)  Requiring the defendant to satisfy any other condition reasonably necessary to ensure the appearance of the defendant as required and to ensure the safety of any other person, persons, or community; or

    (12)  Imposing any combination of conditions listed above;

provided that the court shall impose the least restrictive non‑financial conditions required to ensure the defendant's appearance and to protect the public.

     (c)  The judicial officer may revoke a defendant's bail upon proof that the defendant has breached any of the conditions imposed."

     SECTION 5.  Section 804-7.2, Hawaii Revised Statutes, is amended to read as follows:

     "§804-7.2  Violations of conditions of release on bail, recognizance, or supervised release.  (a)  [Upon] Subject to the limitation set out in subsection (d), upon verified application by the prosecuting attorney alleging that a defendant has intentionally violated the conditions of release on bail, recognizance, or supervised release, the judicial officer named in section 804-5 shall issue a warrant directing the defendant be arrested and taken forthwith before the court of record for hearing.

     (b)  [Upon] Subject to the limitation set out in subsection (d), upon verified application by a pretrial officer of the intake service center that a defendant has intentionally violated the conditions of release on bail, recognizance, or supervised release, the court may issue an order pertaining to bail to secure the defendant's appearance before the court or a warrant directing that the defendant be arrested and taken forthwith before the court of record for hearing.

     (c)  [A] Subject to the limitation set out in subsection (d), a law enforcement officer having reasonable grounds to believe that a released felony defendant has violated the conditions of release on bail, recognizance, or supervised release, may, where it would be impracticable to secure a warrant, arrest the defendant and take the defendant forthwith before the court of record.

     (d)  No defendant shall be arrested under this section solely because the defendant had one positive test for drug use."

     SECTION 6.  Section 804-7.3, Hawaii Revised Statutes, is amended to read as follows:

     "§804-7.3  Sanctions for violation of conditions of release on bail, recognizance, or supervised release.  After hearing, and upon finding that the defendant has intentionally or knowingly violated reasonable conditions imposed on release on bail, recognizance, or supervised release, the court may impose different or additional conditions upon the defendant's release or revoke the defendant's release on bail, recognizance, or supervised release[.]; provided that the burden of proof shall be upon the prosecution to establish a violation, by a preponderance of the evidence, based upon representations made by an officer of the court.  If the court revokes the defendant's release and the revocation is based upon the violation of a condition of release that did not involve the defendant's commission or alleged commission of a new offense or the defendant's failure to appear in court in the instant case, the court shall enter findings into the record that no other conditions may be imposed that would ensure the defendant's appearance and the safety of the public and that the revocation is therefore necessary as an action of last resort."

     SECTION 7.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 8.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 9.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Courts; Corrections; Arrests; Pretrial Release; Bail

 

Description:

Amends various provisions related to pretrial release.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.