THE SENATE

S.B. NO.

1244

THIRTY-FIRST LEGISLATURE, 2021

S.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO THE MODERNIZATION OF CRIMINAL JUSTICE.

 

 

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

 


PART I

     SECTION 1.  The legislature finds that there is an urgent need to comprehensively reform and modernize the State's criminal justice system.  Though there have been valiant efforts during the last decade to reform the criminal justice system, these reforms have not been thorough enough to end the State's practice of mass incarceration.

     The legislature also finds that House Concurrent Resolution No. 134 was passed during the Regular Session of 2017 to request the judiciary to establish a task force to recommend reforms to Hawaii's criminal pretrial practices and procedures.  The task force submitted its final report to the legislature prior to the Regular Session of 2019, and the legislature subsequently enacted Act 179, Session Laws of Hawaii 2019, to formalize many of the task force's recommendations.  The intent of Act 179 was to maximize public safety while protecting state and federal constitutional principles regarding the presumption of innocence, liberty, and the right to non-excessive bail, while also reducing the State's jail population and lowering costs throughout the judicial system.

     However, the legislature also finds that Act 179, Session Laws of Hawaii 2019, failed to substantially reduce the State's pretrial detained population, despite that law's reforms.  In fact, major changes in the State's jail population did not occur until the judiciary took collaborative action in response to the coronavirus disease 2019 pandemic; however, the Hawaii correctional system oversight commission has found that this reduction was largely due to a reduction in the non-pretrial detainee population and that the pretrial detainee population has remained constant or increased.  This data indicates the need to revisit pretrial reform efforts with a more aggressive approach.

     Finally, the legislature finds that in order to adequately address jail and prison overcrowding and ensure that the State's criminal justice system is effectively rehabilitating inmates, the State must also examine other aspects of the criminal justice system beyond pretrial procedures.  Specifically, the legislature finds that the State must scrutinize the Hawaii penal code, which is the fundamental document by which the State addresses crime, in a full and deliberative manner to ensure that the code remains effective in achieving the objectives of the State's criminal justice system.

     Accordingly, the purpose of this Act is to:

     (1)  Define serious crime as murder or attempted murder in the first degree or class A felony, or a call B or C felony involving violence of threat of violence;

     (2)  Allow the court to determine if bail may be denied where the charge is for a serious crime. Requires the judicial council to appoint a committee to review and recommend changes to the Hawaii penal code; and

     (3)  Require the judicial council to appoint a committee to review the Hawaii penal code and recommend to the legislature revisions to the code that the committee concludes are fair and proportionate to the crime committed, with particular attention to:

          (A)  Whether mandatory sentencing provisions, particularly those for repeat offenders, should remain incorporated in the Hawaii Penal Code;

          (B)  Whether certain drug offenses should be decriminalized; and

          (C)  Additional sentencing options and alternatives that the committee concludes will aid in the enforcement of the Hawaii Penal Code.

PART II

     SECTION 2.  Section 804-3, Hawaii Revised Statutes, is amended by amending subsection (a) through (c) to read as follows:

     "(a)  For purposes of this section[, "serious crime"]:

     "Serious crime" means murder or attempted murder in the first degree, murder or attempted murder in the second degree, [or] a class A [or B] felony, [except forgery in the first degree and failing to render aid under section 291C-12, and "bail"] or a class B or C felony involving violence or threat of violence to any person.

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

     (b)  Any person charged with a criminal offense shall be bailable by sufficient sureties; provided that bail may be denied where the charge is for a serious crime, and[:] the court determines that:  

     (1)  There is a serious risk that the person will flee;

     (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;

     (3)  There is a serious risk that the person poses a danger to any person or the community; or

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

     (c)  Under subsection (b)(1) a rebuttable presumption arises that there is a serious risk that the person will flee or will not appear as directed by the court where the person is charged with a criminal offense punishable by imprisonment for life with or without possibility of parole.  For purposes of 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 the court determines that:

     (1)  The defendant 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 [already on bail on] pending trial or sentencing for a felony charge [involving violence  against a person]; or

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

PART III

     SECTION 3.  (a)  The judicial council established pursuant to section 601-4, Hawaii Revised Statutes, shall appoint a committee to review the Hawaii penal code and recommend to the legislature revisions to the code that the committee concludes are fair and proportionate to the crime committed, with particular attention to:

     (1)  Whether mandatory sentencing provisions, particularly those for repeat offenders, should remain incorporated in the Hawaii penal code;

     (2)  Whether certain drug offenses should be decriminalized; and

     (3)  Additional sentencing options and alternatives that the committee concludes will aid in the enforcement of the Hawaii penal code.

     (b)  The committee appointed by the judicial council shall include:

     (1)  Representatives of the judiciary;

     (2)  A member of the senate committee on judiciary;

     (3)  A member of the house of representatives committee on judiciary and Hawaiian affairs;

     (4)  The attorney general or the attorney general's designee;

     (5)  The prosecuting attorney from each county or the prosecuting attorney's designee;

     (6)  A representative from the office of the public defender;

     (7)  A representative from the police department of each county;

     (8)  Public or private sector economists, who shall be invited by the judicial council;

     (9)  Psychologists or social workers, who shall be invited by the judicial council;

    (10)  The administrator of the office of Hawaiian affairs or the administrator's designee;

    (11)  Private citizens interested in criminal law and civil liberties, who shall be invited by the judicial council;

    (12)  Licensed Hawaii attorneys in private practice who handle criminal cases, who shall be invited by the judicial council;

    (13)  A representative from the intake services center division of the corrections division of the department of public safety;

    (14)  Representatives from advocacy groups for incarcerated individuals, who shall be invited by the judicial council; and

    (15)  Representatives from victim advocacy groups, who shall be invited by the judicial council.

     (c)  The committee may:

     (1)  Accept grants, gifts, and other appropriations of funds to defray the costs of its work;

     (2)  Request assistance from the faculty and students of the William S. Richardson school of law of the university of Hawaii in performing its duties under this section; and

     (3)  Request the legislative reference bureau to assist the committee with the drafting of proposed legislation as needed.

     (d)  The members of the committee shall serve without compensation but shall be reimbursed for expenses, including travel expenses, necessary for the performance of their duties.

     (e)  No member of the committee shall be made subject to chapter 84, Hawaii Revised Statutes, solely because of that member's participation on the task force.

     (f)  The judicial council shall submit a report of its findings and recommendations, including any proposed legislation, to the governor and legislature no later than twenty days prior to the convening of the regular session of 2022.

     (g)  The committee shall cease to exist on June 30, 2022.

PART IV

     SECTION 4.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 5.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 6.  This Act shall take effect on July 1, 2025.


 


 

Report Title:

Criminal Justice Reform; Pretrial Procedures; Bail; Judicial Council; Penal Code Review

 

Description:

Defines serious crime as murder or attempted murder in the first degree or class A felony, or a call B or C felony involving violence of threat of violence.  Allows the court to determine if bail may be denied where the charge is for a serious crime. Requires the judicial council to appoint a committee to review and recommend changes to the Hawaii penal code.  Takes effect 7/1/25.  (SD1)

 

 

 

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