Criminal Justice Reform
The Penal System cannot Produce Justice so long as it functions as a wealth-Extraction point...
YPDA Hawaiʻi supports efforts to implement meaningful sentencing reform; to reduce repeat offenders, recidivism and over representation of minorities; to eliminate for-profit prisons; to remove non-violent offenders from prisons and to divert them, instead, to mental health, drug treatment and other community-based programs that have been proven to be more successful correctional tools than incarceration; and efforts to implement place-based, restorative justice methods, especially in Hawaiʻi where Hawaiian over-representation can be directly attributed, in part, to a disconnection from culture and community.
During the 2019 Session, YPDA will be focusing primarily on measures that would eliminate or drastically reduce our dependence on cash bail.
Download a PDF version of our talking points here.
Cash bail does not serve the function for which it was intended. The purpose of bail is not pretrial punishment. Bail is supposed to minimize the risk of flight and danger to society while preserving the defendant’s constitutional rights. However, requiring cash bail does not achieve any of these outcomes. Jurisdictions like Washington D.C. that have all-but replaced cash bail with smart justice reforms have seen better rates of court attendance and lower rates of re-arrest, all while satisfying the intent of bail without violating civil liberties.
Cash bail has serious societal costs. Incarceration always disrupts lives, often leading to loss of employment, custody issues and loss of housing. These worsened outcomes derail people from the trajectory of their lives, leading to increased criminality, homelessness, health problems and other societal costs for which we all pay the price.
Cash bail is overused and arbitrary. Hawaiʻi’s courts require bail as a condition of release in 88 percent of cases. More than half of the arrestees in those cases were unable to post the amount required by the court. Although Hawaiʻi’s Constitution prohibits “excessive bail,” many judges in Hawaiʻi admit to arbitrarily setting bail at a certain amount based solely on the offense the individual is accused of committing.
Cash bail violates the right to presumption of innocence. In the United States, the accused is presumed innocent until proven guilty, and the the Fifth and Fourteenth Amendments prohibit depriving a person of his or her liberty without due process of law (including while awaiting trial and regardless of indigence). Yet, in Hawaiʻi, some 1,145 individuals are currently being held behind bars without having been convicted of a crime. Nationwide, 443,000 people are being detained without ever having been tried in a court of law. This is a gross violation of their civil liberties and amounts to an unconstitutional, extrajudicial punishment.
Cash bail makes a mockery of justice. In Hawaiʻi, 64 percent of those who could not afford bail changed their plea to guilty to get out of jail sooner. Using pre-trial detention to coerce arrestees into guilty pleas is routine practice for prosecutors throughout the country. Furthermore, a 2012 study conducted by the New York City Criminal Justice Agency found that pretrial detention has a negative impact on trial outcomes: among non-felony cases with no pretrial detention, 50 percent ended in conviction compared to a 92 percent conviction rate among cases with an arrestee who was detained.
Cash bail allows the wealthy to buy their way out of jail. Most bail for all felony charges in the First Circuit is set in the $11,000 to $25,000 range, but it was as high as $1 million in eight cases and $2 million in two cases in 2015. Detention or release should not be conditioned on an individual’s wealth or income. A wealthy person can be just as dangerous as a poor person.
Cash bail exacerbates institutional racism within the penal system. In Hawaiʻi, Native Hawaiians and Pacific Islanders are more likely to be arrested and detained with a bail amount set to an unreasonable cost based on their charge, record or lack thereof, and socioeconomic status. This is reflected nationally with other communities of color.
Cash bail is a way for corporations to exploit poor communities. Often, the only way a person can maintain their innocence and return to their lives while awaiting trial is to pay a bail bondsman to front the cost of bail. These bail bondsmen do not reimburse accused people for the cost of their services should they be found innocent. Nor are they small businesses providing a service, as they often claim. In fact, they are fronts for multinational insurance companies that use America’s backward penal system to extract wealth from poor communities that are over-targeted by police departments and suffer disproportionately from racist policies like Three Strikes and mandatory minimum sentences.
Hawaiʻi spends more than $60 million on pretrial incarceration each year. It costs a lot of money to lock people up behind bars: about $54,500 per detainee each year, or $150 per day. Compare this to Washington D.C., which releases 85-90 percent of pretrial arrestees and spends a mere $18 a day in supervising costs per individual. The U.S. spends $13.6 billion annually to detain people who have not been convicted of a crime.
Hawaiʻi’s correctional facilities are a liability. Six out of nine Hawaiʻi facilities are “over design capacity” and a four are over “operational capacity.” The Department of Justice has warned the State of Hawaiʻi that it will sue unless the issue is addressed quickly. While building a newer, larger, prison will alleviate crowding, it won’t address the underlying causes of over-incarceration. Bail reform is the swiftest and more sure-fire way to reduce our overcrowded jail population, while simultaneously beginning to reform the penal system toward true justice.
Hawaiʻi has a serious problem when it comes to its prison system. The state’s 40-year-old community correctional centers are dilapidated and horribly overcrowded, and the situation in these jails has now become a liability. Clearly something must be done to reduce crowding in these out-of-date facilities. But there exist two very different ideas of what that something should look like. The first idea is a doubling down on failed policy: building newer, larger incarceration facilities and, thereby, anchoring our society more firmly to an antiquated and injurious punitive system with a poor track record of reducing crime and, instead, a legacy of destroying lives and communities.
Over the course of the last 20 years, it’s become clear that the draconian austerity of the prison system incurs a high and multi-faceted cost on the inmate. It’s also, clearly, a strain on overburdened state budgets, and on the taxpayers themselves. On top of this, the prison system has been shown to be less effective at keeping communities safe than what David R. Karp and Todd R. Clear, in their essay "Community Justice: A Conceptual Framework" (2000), refer to as “community justice” solutions. These restorative, rather than punitive, solutions seek to heal and restore troubled people, returning them back to society in a condition in which they can be productive and contribute to society. This is the alternative path, and the one advocated for by the Community Justice Coalition, a network of organizations campaigning for criminal justice reform in Hawaiʻi.
But moving Hawaiʻi away from the prison system won’t be easy. Every president since Richard Nixon—who first announced the “War on Drugs” in 1971—has adopted a “tough on crime” stance that is often replicated all the way down to the municipal level of government. This attitude, and its resulting policies, has resulted in the highest incarceration rate in the world. Between 1970 and 2010, the number of people incarcerated in the United States grew by 700 percent. We now incarcerate almost a quarter of the prisoners in the entire world, while representing only 5 percent of the world’s population. At no other point in U.S. history—even when slavery was legal—have so many people been deprived of their liberty.
Committee: Social Justice
Jailed State: 10 reasons for Hawai‘i to abolish cash bail and replace it with smart justice reforms