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The State of Aloha

Over vehement objections from law enforcement (Maui did not submit any testimony), the Legislature passed a bill that with some exceptions eliminates cash bail for those arrested under suspicion of several nonviolent crimes. It is a modest attempt to alter a bail system that keeps people who have not been convicted of a crime in jail simply because they do not have the money to get out.

As it sits on the governor’s desk, law enforcement has argued that the bill will make us less safe. The tactic may be working. About two weeks ago, the county mayors got together with Honolulu prosecutor, Steven Alm, and urged the governor to veto in the name of public safety. The bill’s sponsor, Rep. Scot Matayoshi, has also joined the veto chorus.

But that is not how cash bail works.

Imagine being broke. You live in your car, drive it from place to place as security guards or property managers chase you off threatening to call the police for trespassing. Then a police officer stops you for a busted taillight. The officer asks for your driver’s license, but you can’t find it. It is somewhere in the mess of things that have piled up in the backseat.

The officer learns there is a warrant for your arrest. It was from that time you were summoned to court for trespassing at a condominium parking lot in Kihei. Remember that? When you missed your court date, the judge issued a warrant.

The officer arrests you. Your vehicle and all of the things in it are parked on the side of a road someplace. And because you could not find your license, the officer writes up a citation for driving without one.

The warrant is in the amount of $100, which means you need $100 to get out. But you don’t have $100. You spend the night in jail in a cold cell with the T-shirt, shorts and slippers you had on when you were arrested. You try to sleep on a hard cot with a blanket and a pillow. Court is not until the next afternoon.

The police take you to the bottom of the courthouse and hand you over to sheriffs, who put you in another cell with the other people who cannot afford to bail out. Some of them are asleep. Others may be drunk. The smell is a putrid mix of sweat, booze exuding from someone’s pores and excrement. A metal toilet sits in the corner. The walls are covered with graffiti.

Eyes appear in the narrow slit at the top of the cell door and a voice calls your name. She is the public defender representing the people in custody that day.

She tells you that the government has charged you with driving without a license. You tell her that you have your license in your car. If released, you can bring it to court and get it dismissed. But the prosecutor wants you to plead guilty to driving without a license. If you do, he will agree to dismiss the trespassing case, which you did do, and you agree to pay a fine for driving without a license, which you did not do.

It means you get out of jail today, so you do it. You are worried about your car and everything in it. You want to take a shower and get some sleep.

You never step into the courtroom. You stand next to your lawyer in cellblock looking at a judge on a television screen. You plead guilty. There is no trial. The case is over. The judge dismisses the old case and ironically orders a fine. If you do not pay within six months, you must go to court and explain why it is unpaid. If you miss court, there will be another warrant and the whole thing starts over again. You still do not have $100.

That is the system in place now. Public safety has nothing to do with it. In her recent book “‘Prisons Make Us Safer’ and 20 other Myths about Mass Incarceration,” law professor, Victoria Law, uses New York City to show how cash bail does not make anyone safer:

“In 2018, police made 808 arrests for rape. In contrast, they made over five thousand arrests for fare evasion. These arrests don’t contribute to public safety; instead, they punish people who cannot afford to pay $2.75 for a subway or bus ride, subjecting them to arrest, a fine that is thirty times greater than the fare they could not afford, and the threat of jail.”

It is the sad and stark reality of our current bail system. Gov. David Ige has until Saturday to decide if a modest reform will become law or if scare tactics and disinformation worked.

* Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is 808stateofaloha@gmail.com.

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