ACLU: Hawaii's bail practices violate civil rights, cause jail overcrowding

HONOLULU (HawaiiNewsNow) - The American Civil Liberties Union of Hawaii on Wednesday released a preliminary report that claims nearly half of the people in Hawaii's jails remain incarcerated because they are unable to post bail – and the state's bail system, as presently constructed, threatens their civil liberties.

The study concluded that pre-trial detainees in Honolulu wait in jail an average of 71 days, primarily because they cannot pay to get out while they wait for a trial date.

Moreover, the study claimed that those who were able to afford the bond required for their release end up with vastly different results in both their cases and their post-trial lives.

"That is unconstitutional because essentially, the wealthy person can afford bail. They can get out. They can post a defense. They're less likely to plead guilty," said Mateo Caballero, legal director of the ACLU of Hawaii. "But if you are in OCCC (Oahu Community Correctional Center) awaiting trial, chances are you're going to plead guilty, just to go back to your family, to your job."

The report –  titled "As Much Justice as You Can Afford - Hawaii's Accused Face an Unjust Bail System" – is the result of an ongoing, statewide investigation and analysis of the state's bail-setting practices and how it affects local families and communities.

Former prosecutor Peter Carlisle disputed the ACLU's findings.

"All sorts of people have been accused of crimes that they ultimately have been found guilty for," he said. "We've had huge success in criminal law here in the state of Hawaii. We have one of the very lowest crime rates in the country. We have one of the lowest violent crime rates anywhere so is that a system that's broken?" questioned Carlisle.

ACLU of Hawaii studied bail-setting practices during the first six months of 2017. Researchers found circuit courts in Hawaii set money bail as a condition of release in 88 percent of cases, though only 44 percent of those people managed to eventually post the amount of bail set by the court.

The study found the average bail amount for a Class C felony on Oahu is set at $20,000. Even with help from a bail agency, posting bond would require an out-of-pocket expense of about $2,000.

Officials explain that bail amounts are supposed to be based on a consideration of multiple factors, including flight risk, ability to pay and danger to the community. Instead researchers claim that in 91 percent of cases in Hawaii, initial money bail simply mirrors the amount set by the police in the arrest warrant – an amount that is based solely only on the crime charged.

Experts say bail is supposed to minimize the risk of flight and danger to society while preserving the defendant's constitutional rights.

The ACLU of Hawaii contends that the bail setting process in the state does not achieve any of these purposes. Instead, they claim it regularly causes individuals to waive their constitutional rights simply to get out of jail.

During their research, the ACLU found 69 percent of the arrestees who changed their pleas from innocent to guilty or no contest did so while held in jail, primarily because they could not afford bail.

"Bail doesn't have to be money. Bail can be things like sending someone home to the custody of their relatives or having them check in. Other jurisdictions have had luck with things such as just sending reminders to people," said Joshua Wisch, executive director of the ACLU of Hawaii.

But Carlisle has his doubts about the ACLU's ideas.

"If these people are constantly moving out and getting themselves into trouble, they're coming back over and over again no matter what their crime is, how can you guarantee that they're going to return?" he wondered.

According to the report, pre-trial incarceration is one main factors for overcrowding in Hawaii jails. The study finds community correctional centers are operating around double their intended capacity.

The Criminal Pretrial Task Force created by the legislature is reviewing current practices. Members will come up with their findings and recommendations before next year's legislative session.

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