Should suspects be released before they go to trial?

The saying is if you do the crime, you do the time.

But some Hawaii lawmakers, including Rep. Kaniela Ing, believe the current bail system is broken and needs to be changed.

Ing says one of biggest problems with the current bail system is that low income people are more likely to stay in jail.

“Right now, in the current system, if you were rich, you are innocent until you’re proven guilty, but if you are from a poor community, or like most of us who are living paycheck to paycheck, you were going to get detained even before you’re deemed to be guilty,” he said.

Right now, five out of six people who go to jail can’t afford to pay.

So Ing believes we should get rid of the bail system entirely.

In its place would be a risk assessment process that would determine if someone could be released from jail until a trial. “This is just for people who are non-violent or not a flight risk, just people like you and I,” said Ing.

The criteria that would be considered: Is the person a flight risk? Are they likely to appear for trial? And are they a danger to others?

University of Hawaii law professor Ken Lawson said, “This reform says listen, just make them appear on their own recognizance unless you can find compelling evidence that this person is a danger to the community or they won’t come to court.”

Lawson says the bill would require prosecutors to provide objective evidence as to why someone should stay in jail.

“What this is saying is listen, the poor people are the ones that are suffering. Those that can’t afford that bond that have to sit and chill until they get their day in court,” Lawson said.

Click here for more information on House Bill 1996.

On Tuesday, we spoke to a former judge and prosecutor who both say the bill is not necessary, because it takes away decisions already made by the judges.

“We assume that the people who become judges know what they’re doing, and if they believe somebody should have to post bail, then that person should post bail,” said former Honolulu prosecutor Peter Carlisle.

Randall Lee agrees. Prior to becoming an assistant professor at Hawaii Pacific University, Lee was a judge for 10 years and a prosecutor for 25 years before that.

“The bottom line is you really don’t need the bill, and the reason I say you don’t need the bill is that judges have that discretion now,” he said.

We asked Lee, is the system unfair now to the people who can’t afford to pay bail?

“You can’t necessarily look at it from the perspective of what the person can afford or not afford,” he replied. “You have to look at it from the perspective of what are the risks?”

Critics point out that when a defendant goes in front of a judge, he or she is given a pre-trial report. The judge determines whether to release the defendant or set a bail amount by including several other factors, like the severity of the crime, the defendant’s criminal record, and if drug use is involved.

“The judge could reduce the bail,” Lee said. “The judge could put someone on supervised release. They could put them on house arrest with electronic monitoring. They can put them in a drug program or a rehabilitation program.”

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