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There is a pervasive myth that Hawaii’s legal system is controlled by big political interests, sullied by money, and haunted by a legacy of systemic racism inherited from the mainland. While you can find isolated pieces of those issues, the fundamental cause of the “double arrest” problem in our state is much more mundane: it is born of total disorganization, not malice. |
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We are currently operating in a landscape where state agencies refuse to speak to one another. Even when they do, they might as well be speaking different languages. As a result, felony defendants are routinely arrested TWICE for the exact same criminal matter. |
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That is not a misprint or an exaggeration. For over 25 years, it has been the rule rather than the exception. Whether a client is released pending investigation only to be picked up months later, or they’ve already posted bail only to be forced to post it a second time upon indictment—the system is designed to double-dip on your liberty. |
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The fix could be written on a half-page memo. It would slash the workload for Prosecutors, the Attorney General, and the Courts, while saving HPD and the Sheriffs from wasted field work. Yet, nobody in power has bothered to put pen to pad. |
The Problem: The "New Case" Illusion |
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Most felony cases in Hawaii begin with a complaint filed in District Court. The charge moves forward via Preliminary Hearing, Information Charging, or Grand Jury Indictment. Once the grand jury reviews the evidence and returns an indictment, jurisdiction shifts from District to Circuit Court. This transfer is where the defendants are commonly re-arrested and in some cases must even re-post bail. |
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Prosecutors often circumvent preliminary hearings to avoid testimony contradictions in the cross-examination of witnesses. Secondly, it makes sense to spare victims from reliving trauma on the stand if it can be avoided. The problem arises when the Circuit Court treats the matter as a 'new case' simply because the facts from the original complaint were cut-and-pasted for a Grand Jury. It isn't a new case—it's just new to them. |
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I won’t mince words: A case isn’t NEW just because the facts are NEW TO THE CIRCUIT COURT upon indictment. In nearly 100% of these transfers, there are no new material details and no new charges. Unless the investigating agency (HPD) or the prosecutors (City or State) grossly failed during the initial 48-hour investigation window, the facts are static. Either that 48-hour investigation period needs to be revamped for complete charging, or new MATERIAL evidence must be presented for a case to truly change during the transfer. |
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For instance, if a victim in a negligent injury case passes away, the case logically and legally elevates to negligent homicide. However, a petty misdemeanor excessive speeding addition does not merit a change in bail. Unless there is a significant shift in the charges, the "new case" narrative is nothing more than a justification for governmental overreach. |
Why You’ll Have to Post Bail TWICE |
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When a felony case transfers from District to Circuit Court, HPD falls into a black hole of misunderstanding. The Circuit Court issues a Bench Warrant, giving HPD the authority to re-arrest a defendant they likely just arrested days prior. For HPD, it’s a path of least resistance to double their felony arrest statistics. The second arrest is seamless because the 'heavy lifting' of locating the suspect is already finished, making it an easy win at the expense of the defendant's liberty. The problem is that the Judiciary’s Order Pertaining to Bail (OPB), which confirms that your original bail should transfer to the new case, is completely ignored by HPD. |
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To an HPD officer, an OPB might as well be a page from Les Misérables written in the original French. They don’t look at it, and they don’t acknowledge its existence in the field, and even once a booking officer is encouraged to download and read the OPB, the language does not pass muster for release. |
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HPD field officers only look at the bench warrant, not the OPB. Only the Sheriff’s office—who work in closer proximity to the courts—actually understand that an OPB confirming a transfer means the defendant has already posted bail and should be released. |
The "Paperwork" Trap |
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Let that sink in, jail mail readers: I have a 25-year history of trying to explain to HPD that a bail transfer mandates a release. But the standard legalese currently used is part of the problem. A statement like: |
“bail bond in the amount of $30,000.00 posted in [Case Number] is transferred from District Court to Circuit Court and held in this case.” |
This does absolutely nothing to instruct an officer to release the person they’ve just re-arrested. To the average officer on the street, this language is a foreign tongue. If HPD were going to honor transfers based on that standalone sentence, we wouldn't be having this conversation the past two decades. |
The Solution |
The Judiciary needs to pivot and use simpler language on the bench warrant directly. The WARRANT itself must include a clear, plain-English directive in addition to the transfer notice: |
“After arrest, the defendant shall be released immediately.” |
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Without that specific second sentence, the system is essentially guaranteeing a secondary, illegal detention for a defendant who has already complied with the court's bail demands. It’s a paperwork glitch with real-world consequences, and it's time we fixed it. |
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When a grand jury indictment drops, you don’t receive a courtesy notification or a new court date in the mail. Instead, the system defaults to force: a bench warrant is entered into the system. This creates a redundant scramble where HPD "cherry-picks" the easy-to-serve warrants while the Sheriff’s Division is simultaneously assigned the same paperwork for service. |
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Under the current rules, a Circuit Court arraignment and plea (A&P) date isn't even set until the defendant is physically taken into custody. This means the second arrest must occur, or else the case remains in a legal purgatory—a gray area where the District Court has lost jurisdiction, but the Circuit Court has yet to formally arraign the defendant. It is a system that demands a cage before it offers a calendar date. |
The Danger of Silence |
This isn’t just about red tape; it’s about safety. When a defendant who has already posted bail is suddenly surrounded by police serving a "second" warrant for the same case, tensions flare. I have seen SWAT teams called and entire blocks cordoned off because of this paperwork glitch. This happened to clients of Myles Breiner TWICE, and just last week it happened to one of Victor Bakke’s clients. I name drop these prominent attorneys so that one day, when those in a position of power want to fix this problem, they can confirm what I’ve detailed directly from officers of the court. |
The Solutions |
We don’t need more "reform" advocates who just bloviate and pontificate about the injustices of the legal system. We need tactical fixes. These three solutions would fix the "double arrest" problem today: |
- Immediate Dismissal: When a case transfers to Circuit Court via Grand Jury indictment, the Prosecutor’s office must next file a case dismissal motion in District Court. This prevents cases from remaining in "limbo" between jurisdictions. Currently, it is all too common for the District Court to issue a bench warrant for a failure to appear on a case that has already been transferred to Circuit Court. We don't need more ghost warrants in circulation.
- Plain English Warrants: The Judiciary must stop hiding behind "legalese." The Bench Warrant itself must include this sentence: "After arrest and processing, the defendant shall be released immediately." The warrant must command an officer exactly what to do in language they actually use.
- Unified Communication: The Circuit Court must proactively notify the District Court when jurisdiction has transferred and together, each court could simply email or call the bail poster (the information is on the bail receipt) to inform the defendant to self surrender, with released guaranteed due to the language directly on the bench warrants saying, “After arrest and processing, the defendant shall be released immediately.”
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A Call for Lōkahi |
As we welcome our new Chief Justice, the Judiciary needs a new guiding principle. We are transitioning from the Recktenwald era of "Access to Justice"—a noble goal, but one that focused on the entrance to the building. Now, we need to focus on what happens inside the halls. |
I propose a commitment to Lōkahi—unity and harmony. We need a mandate that brings the different circuits, law enforcement agencies, and the prosecutor’s offices into one cohesive, functional system that respects the spirit of our islands. |
True Lōkahi in the judiciary would mean: |
- The Courts and HPD speaking the same language.
- The District and Circuit courts working in tandem rather than in a vacuum.
- Embrace Efficiency and eliminate double service of warrants.
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If only we had a Chief Justice who used to be a cop and understood exactly how these paperwork gaps play out on the street... Oh wait, we do. Perhaps there is a "New Hope" that can finally bring balance and Lōkahi to the Hawaii Judiciary. |
In the spirit of Lokahi, |
-Jail Mail Nick. |
