More than half of Hawai‘i’s jailed population have not been found guilty

And the primary reason is because most jailed people cannot afford to post bail.

The American Civil Liberties Union (ACLU) of Hawai‘i has released a study showing that almost half of the people in Hawai‘i jails are pre-trial detainees who have not been convicted of the crimes for which they’ve been accused. This preliminary report, called “As Much Justice As You Can Afford: Hawaiiʻs Accused Face an Unequal Bail System,” also reveals that the average bail amount in Honolulu for the lowest level felony is over $20,000. The report is part of an ongoing, statewide investigation and analysis of how bail practices affect our local families and communities.

This means the primary reason that so many people wait in jail for months with their rights infringed upon is because they cannot afford to get out while waiting for trial. We are actively taking away people’s Constitutional rights for months at a time simply because they are poor.

ACLU Legal Director Mateo Caballero said, “Bail is not supposed to be punishment. Bail is supposed to minimize the risk of flight and danger to society while preserving the constitutional rights of the accused. Instead, our early findings show that the way bail is used in Hawai‘i does not serve any of these purposes. Instead, bail practices regularly cause people to waive their rights just to get out of jail. That is unjust and violates the constitution.”

The preliminary report is based on an analysis of six months of public data and interviews with court officials. It captures a snapshot of how bail is used in Hawai‘iʻs criminal justice system, typical outcomes for the accused, and how current practices affect overcrowding of local jails like the O‘ahu Community Corrections Center (OCCC). An update with a full year of data is planned for late 2018.

ACLU Executive Director Joshua Wisch added, “In practice, the way bail works in Hawai‘i means that if you’re wealthy you get out of jail while you wait for trial, and if you aren’t–you don’t. Almost half of the people in Hawai‘i jails have not been convicted of the crime for which they’ve been accused. They’re only in jail because they can’t afford bail. We hope this report will start a discussion about how we can improve this system.”

The report follows ACLU community events in Hilo and Honolulu to discuss criminal justice reform concerns. Among the report’s findings, which have been provided to legislators, the judiciary and the administration: Money is required for bail in about 93 percent of the cases on O‘ahu, 88 percent statewide; over 50 percent of those accused do not post bail, likely because they cannot afford it; of the almost 2,200 people held in Hawai‘i’s jails on any given day, about half are pre-trial detainees and they are held at a cost of $146/day per person (more than $53,000 per year, per person, though pretrial detainees are not usually in jail for an entire year); even if eventually allowed to go free without money bail while awaiting trial, the accused in Hawai‘i wait in jail an average of over 90 days before that hearing even happens, when most large counties in the country are able to release arrestees in 15 days or less; and almost 70 percent of accused who changed their “not guilty” plea to a “guilty” plea did so while in pretrial custody, raising serious concerns for due process, bias and fairness.

“As Much Justice As You Can Afford: Hawaiiʻs Accused Face and Unequal Bail System.” The report can be found at: www.acluhi.org/bailstudy

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Hawaiian was even the official language of the Territory, circa 1903.

HONOLULU, April 9. — (By Pacific cable.) The legislature has passed, over Governor Dole’s veto, a joint resolution making the Hawaiian language the official language of the territory, as well as English. (Los Angeles Herald, 4/10/1903, p. 2)

Via nupepa-hawaii.com

What just happened at the State House?

Reps. Ito and Tokioka just lost their leadership positions on the House veterans committee, and it might have been because of a planned coup to overthrow House leadership.

Above: Rep. James Tokioka

Update: Rep. Ito released a statement giving his version of why he was removed as chair of the VMI committee. While acknowledging that he signed on to a resolution of support for Rep. Tokioka to become Speaker of the House, he still blames his removal on petty vindictiveness, something he claims is commonplace under Saiki’s leadership:

Today, I was approached by Speaker of the House of Representatives, Scott Saiki, and was informed that I would be removed, effective immediately, from my post as Chair of the House Committee on Veterans, Military & International Affairs, & Culture & the Arts (VMI).

I believe the reason for my removal from the VMI committee is purely political. I recently signed a petition supporting Rep. James Tokioka of Kauai as Speaker of the House of Representative, and that was the reason that prompted my removal as Chair of the VMI committee. I was unwilling to compromise my loyalty and friendship with Rep. Tokioka, who is Vice-Chair of the VMI Committee.  The nature of the current political environment in the House is one that operates in the dark, and with retribution for taking a stance that may not be popular to House leadership. I believe that we are a democracy, and all sides should be heard. This is the people’s House. I have full confidence that Rep. Tokioka represents this important, necessary change for the House.

House Resolution 9 was adopted during today’s floor session at the State House of Representatives. The result was that Ken Ito and James Tokioka were replaced as chair and vice chair, respectively, of the VMI committee by Reps. Matt LoPresti and Beth Fukumoto. Reps. Choy, Creagan, DeCoite, Har, Say, Souki and Tokioka voted no, and Reps. Cachola, Hashem, Kong, Chris Lee, McDermott, Tupola and Ward were excused.

We don’t have all the details yet, but as early as last week The Independent had heard rumors that Rep. Tokioka was gunning for Speaker Saiki’s position and was working on obtaining the necessary votes to overthrow the current House leadership. Rep. Tokioka is a member of the faction that held power prior to 2013 under the leadership of Speaker Emeritus Calvin Say. It appears the effort backfired however, with Majority Leader Della Au Belatti introducing HR9.

Because Rep. Tokioka’s efforts happened in caucus and, perhaps, with a floor resolution, there is no written record of what exactly transpired, or which representatives may have signed on to overthrow Speaker Saiki’s leadership team. An anonymous source within the House was unwilling to provide The Independent with a complete list, but suggested that some male freshman representatives may have signed on to the planned coup. It remains unclear whether this was simply a political miscalculation—that is, they thought Rep. Tokioka had the votes already and didn’t want to be left behind when it came to picking new leadership positions and committee chairs—or whether these young reps were legitimately hoping for a return of leadership to the former Calvin Say faction headed by Rep. Tokioka and, presumably Rep. Ryan Yamane as Finance Committee chair.

Another source close to the legislature thinks that there may be genuine dissatisfaction among representatives with the way Rep. Luke handles the Finance committee currently. It is possible that these legislators were tired of, what our source describes as, a certain level of pay-to-play in the form of displays of loyalty to rep. Luke. Specifically, our source mentions some reps. being forced to kill bills in committee simply to demonstrate a willingness to obey Rep. Luke. That being said, our source was highly skeptical that replacing the Saiki team with a reincarnation of the former Say team would be helpful with regard to passing progressive legislation this session, considering they are generally more pro-business and more socially (and perhaps economically) conservative than the Saiki team.

Rep. Say lost power when Rep. Joe Souki organized an unusual coalition of republicans and junior democrats who were less socially conservative than Say’s faction. This allowed then-Governor Neil Abercrombie to call for a special session in November of 2013 to pass a marriage equality bill. The passage of the marriage equality bill, along with other moves on the part of the more progressive democrats in Souki’s coalition, eroded the republican support for the coalition. Combined with a few leadership missteps, including that whole Angus McKelvey thing and pressure from the governor to settle the rail question, this erosion led to another leadership shakeup in which Rep. Scott Saiki assumed speakership from within the existing Souki faction. As we reported then, Reps. Saiki and Luke, had been calling the shots within the remaining Souki coalition for awhile before Rep. Souki was deposed.

For now it appears that Rep. Saiki’s tenure is still secure. It is highly unlikely that a leadership change would be forced in the midst of a session, so Rep. Luke will likely remain Finance chair for the remainder of the session as well. If that changes, we may have to create a new running column, perhaps titled the “House of Cards,” to track the frequent reshuffling of House leadership positions.

In terms of the VMI committee, having Matt LoPresti assume the chairship seems like a step in the right direction. Rep. Ito, who apparently did not even vote against his own deposition as chair (see vote count on HR9), held only a handful of hearings last session and didn’t even attend all of them. LoPresti, by contrast, has already been involved in the issues of cyber security, net neutrality, the missile alert and other potentially relevant VMI committee issues before he was awarded the chairship. There is essentially no time left to introduce new legislation to pass through his committee, but we will have to watch what he is able to accomplish as chair this session and going forward.

Will Caron
Court cases reveal the limited deference to which the Hawaiian language is afforded by the state

ʻŌlelo Hawaiʻi is an official state language but, as two court cases are highlighting, the extent to which the State of Hawaiʻi recognizes its citizens' rights to access Hawaiian in official capacities is limited.

Two separate, pending court cases are revealing of the lack of any actual deference for Hawaiʻi’s indigenous language as an equal and legitimate alternative to the other official state language, English, on the part of the entity governing these islands today: the State of Hawaiʻi.

The first court case is the one involving petty misdemeanor charges brought against Hawaiian activist and Maui Community College professor Kaleikoa Kaʻeo, who led an action last year to stop a delivery of telescope equipment to the site of the Daniel K. Inouye Solar Telescope (DKIST) atop Haleakalā. This case brings up the issue of whether or not Hawaiians can use their native tongue to defend themselves in court.

Kaʻeo says that there are certain things that can only, or at least best, be said in Hawaiian when it comes to expressing a Hawaiian cultural view of the world—something that would be important in explaining the action he took to defend a sacred site from development and desecration.

But the judge in his case has granted a motion by the prosecution compelling Kaʻeo to conduct court proceedings in English. Citing a 1993 federal case Tagupa v. Odo, the judge found that the mere fact that ʻōlelo Hawaiʻi is an official state language does not compel the court to provide an interpreter.

From Hawaii Public Radio:

I do not want to be held in contempt of court. I don’t wanna be fined. I don’t want to go to jail for this. But if there’s any reason for me, Kaleikoa Kaʻeo, to go to jail, it would be to defend our right as a people to speak our language in our own homeland.

Meanwhile, another pending court case addresses a similar incongruence between the rights of Hawaiians and existing state policy, this time within the Department of Education (DOE).

The Native Hawaiian Legal Corporation (NHLC) is representing a mother and her two daughters in a case involving the right to be educated in ʻōlelo Hawaiʻi. In this case, the two daughters had attended an immersion school while they lived on Maui. The youngest was in kindergarten and the oldest was in first grade. The ʻohana moved to Lanai for the following academic school year.

When the children began attending school at Lanaʻi High and Elementary School in August 2013, they were unable to read, write or comprehend the English language. The Lanaʻi school administration recommended that the youngest repeat kindergarten. When the older daughter started school at Lanaʻi High and Elementary School, her teacher reprimanded her for responding to written assignments in the Hawaiian language. After being reprimanded, the family asked the acting school principal for an educational assistant (EA), a common tool in addressing some students’ unique learning needs that generates a tailored educational plan for the students’ success. The acting school principal instead offered to refer the older daughter to the school psychologist. Services designed to address the older daughter’s Hawaiian-language learning needs were not offered.

According to NHLC, “Besides the Hawaiian language being an official language of this state we fervently believe that [the language] and the right to ʻōlelo are imbued with significant constitutional protections. We believe, given these circumstances, that the Department of Education’s failure to staff a Hawaiian language immersion program on Lanaʻi is inexcusable.”

The State raises four arguments in its defense: That there is no fundamental right to an education under the State Constitution and Federal Constitution; that there is no individual right to an education of a certain quality under the State Constitution and Federal Constitution; that there is no right to an immersion program under the State Constitution; and that the provision of a Hawaiian immersion program is not a customary and traditional native Hawaiian right or practice.

On the other hand, the plaintiff’s claims arise from the Hawai’i Constitution as well. Article X § 4 of the Hawai’i Constitution guarantees a fundamental right to a comprehensive Hawaiian education. The plaintiff’s right to this comprehensive Hawaiian education is protected by the State’s affirmative duty to preserve and protect traditional and customary rights under Article XII § 7 of the Hawai’i Constitution. Furthermore, the plaintiffs are entitled to such protections under the equal protection clause of the Hawai’i Constitution.

NHLC will be asking the court to declare that the fundamental right to an adequate and equal education does, in fact, exist under Article X § 1 of the Hawai’i Constitution. The case will be argued before the justices of the Hawaii Supreme Court on Wednesday, February 7, 2018, at 10 a.m.

Will Caron
Governor Ige’s 2018 State of the State Address

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