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Message from the President Beth Chapman

from PBUS

Dear members and Colleagues,

As you are reading this I will be or will have addressed a pre-trial taskforce in Hawaii which was created this past legislative session in response to members in the legislature wanting to advance non-monetary release in my state. I have said on multiple occasions that the opponents of bail are looking to advance bail reform everywhere and I cannot give you a better example than in my own backyard. This is the initial meeting of the two year taskforce and I will keep you posted on advancements as they happen.

As I was preparing for the meeting I thought it would be wise to use the opportunity to use the experience as a help to other states who are taking the first steps to full bail reform. Fortunately for us in Hawaii we know that we probably have a two year window before we truly have a war on our hands. For those out there in a similar position, where you have not had a bill presented or maybe not even a taskforce created, then let this be a road map of how events will occur in your state.

The taskforce was created under HCR134 in the 2017 legislative session. As much as a respect the taskforce and those asked to serve on it, the resolution is very clear in its intentions and assertions. This is usually what we see in states which ultimately pursue bail reform. Step one is implementation of a risk assessment tool and suggestion that the current system is broken. Step two is the insinuation that the poor are “languishing” in jail only because they cannot afford bail and that being the basis of bail reform. Step three is advancement of policies which remove judicial discretion in favor of requiring release which is the “least restrictive."

We have seen this pattern in every state which is considering adoption or has adopted bail reform policies. However, the difference now is that we have empirical data to use as arguments against those pushing for reform and the sooner you unleash that evidence and the longer it is sustained in the conversation the better your chances of fighting against those reforms will be.

I will be participating as often as possible with the Hawaii taskforce and will from the beginning will load them with information about the effects of non-monetary release. I will always be suspicious of any taskforce which looks at this issue but will ultimately give them the benefit of the doubt that they truly want to study an important issue. The important thing to remember is that proponents of bail reform always look to do massive, wide sweeping changes to a system which generally works very well. Specific changes to areas which need improvement should always be considered but our job should be to stand firm against wide ranging reforms that we have seen proposed over and again.

Last week, the United States 5th Circuit Court of Appeals met and heard oral arguments in the O’Donell v. Harris County. The arguments are available online and I would encourage everyone to listen to them if you have time to. I will be delving deeper into the arguments in a following edition but I wanted to highlight two specific facts that I think are very relevant and telling of how the court may lean. Of course, like everything else, I hope you can use this and incorporate this information into your toolbox against bail reform.

The judges seemed very concerned with the scope and finality of the relief that the trial court handed down. As you may be aware, the trial court required Harris County to release ALL misdemeanor offenders on free pre-trial release. The line of questioning seemed to suggest that the judges were not using enough judicial discretion in their previous practice of setting bail amounts but that the current relief completely removes all judicial discretion. He judges seemed to think that went too far and that it created a slippery slope when considering the importance of more


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