Last week, attorney Megan Kau starred in a Stolen Stuff Hawaii special on the bail system in Hawaii. In case you’re late to the party, Stolen Stuff Hawaii is a facebook group / anti-crime group centered on helping those victimized by crime. There are roughly 150,000 forum members in the Stolen Stuff Hawaii group.
Days after the special, I personally bailed out one of the defendants mentioned, whom was awaiting trial for close to 3 years. It was only after Ms. Kau successfully petitioned the court for a bail reduction, that bail was posted at $10,000, versus the originally set $100,000.
3 takeaways from Ms. Kau's successful bail reduction motion:
1) Notice the hearing was conducted via Zoom? This demonstrates that bail reduction hearings don't require the traditional weeks of wait time to properly coordinate between the schedules of the court, intake service center, the prosecutor, and the defense attorney for a motion to be heard via video conference. By embracing Zoom, hearings can be scheduled substantially faster and easier than in person appearances.
2) Ms. Kau didn't just "ask" for a reduction, she crafted a supervision game plan which addressed her client's SAFE release into the public. A) Housing and geographic restrictions were agreed upon, b) sufficient, not excessive cash bail was agreed upon, and c) concessions to check in with the intake service center were offered. This is how to construct a successful bail reduction; simply asking for a reduction in open court isn't effective.
3) Ms. Kau "trend stacked" for a successful outcome. She utilized the trend of Zoom for a speedy appearance, utilized the trend of mixing "cash bail" and "government supervision," to reduce public safety concerns, and properly assessed the progressive bail reduction temperament of today's judiciary, which has grown increasingly supportive of creative releasing options.
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The Inconvenient Truth
I debated bail reform with attorney Marcus Landsberg back in 2017. When I suggested stacking a bail bond with supervised release conditions, he was quickly and correctly disturbed by the idea.
There is a philosophical catch with releasing “pre-trial” defendants contingent upon following the full array of supervision options which are traditionally assigned to probationers. In the video above, Mr. Landsberg makes a compelling argument against pre-trial conditions.
However, it’s my view that the “OCCC” versus “Freedom with conditions” debate ultimately ends with, “I’ll take freedom with conditions." It's the mix that got Ms. Kau's client out of custody, and after I spoke with our mutual client the other day, I can report back that he was appreciative.
One last thing on bail reform:
I take marketing courses online from NYU Stern professor Scott Galloway and I couldn't resist the opportunity to pitch a solution for a more robust release ecosystem. So here we go!
The Judiciary is a PLATFORM, much like Amazon.com, and Google.com. Amazon is a retail platform connecting shoppers to vendors, Google is a search platform connecting people to websites. The Judiciary too is a platform, which can connect release agencies to those in need of release from pre-trial detention.
The Public Sector Solution:
Right now, despite the current movement towards a cash free system, there's an opportunity to expand all current release agencies' impact RIGHT NOW. There's no need for a politically charged, expensive, and contentious bail bill passing to remove cash from the system today. Right now, the legislature could increase funding to the ISC and invest in the expansion of cash free releases.
The Direct to Consumer Solution:
Who wants to pay a middleman (bail agent) a fee for a release? And who wants to wait days or weeks for release through the ISC with pre-trial conditions like check ins, drug/alcohol tests, and curfews? For some, going direct with cash bail posting reigns supreme.
Cash is king for these clients; and the Judiciary should continue to honor the arrangement, where cash can be posted to secure their return to court.
The Private Sector Solution:
The bail bond industry is regulated by the department of insurance, and when clients cannot afford to pay the total cash amount of a bail, you can 1) get a co-signer and 2) pay a fee, usually 10%, to get out of custody in a few hours.
There's never a "state of Hawaii runaround" prolonging your speedy release; you can apply and pay in less than 10 minutes on your smartphone, and you can foist the final financial obligation for the full bail amount on to the bail company, so that you have a partner to fulfill any cash condition the court may request.
It's certainly a luxury product/service, for those with the means to retain it, saving families time and stress.
So in closing, I know it sounds crazy, but embracing the free market idea of the Judiciary as a platform, could help alleviate the problem of pre-trial detention.
The beautiful thing about the Judiciary's position, is that it too can go "direct to consumer" and simply RTA, or release to appear, a detainee that doesn't pose a threat to public safety and is likely to return to court.
The Judiciary could force feed clients into the ISC system of cash free release, so long as the funding was granted to expand their office.
The Judiciary could mix and match ISC conditions, with cash bail conditions, so clients like Ms. Kau's could be released after 3 years of pre-trial detention.
The Judiciary is the platform, the market marker, the monopoly quite frankly, in the releasing of detainees. I often see bail reforms as subtle chips upon their power to determine who is a public safety danger versus not. But the bail reform movement is here, and with good reason. Existing solutions could be super-charged, should the Judiciary lean into the position of a “platform.”