 Think Tech of Hawaii, civil engagement lives here. Welcome to Community Matters. I'm Tim Apachella, and I'm filling in for J-Fy Dale today, so you get a different guest today. Today, we discussed the legal issues and developments in Hawaii that the American Civil Liberties Union is working on. There has been a couple of bills in the 2018 legislature that focused on pre-trial bail reform. Our guest today is Mateo Caballero, legal director for a Hawaii affiliate of the ACLU. I spoke to Mr. Caballero back in December 2017. At that time, he mentioned a statistic that really caught my attention. Did you know that the state of Hawaii spends $146 per day per prisoner who is being incarcerated waiting for trial? What that means is $61 million per year is spent on the accused of committing a crime who could not afford a post bail. To discuss this and other issues, I'd like to welcome Mateo Caballero. Mateo, thank you so much for joining us. Thank you for having me, Tim. Yeah, I appreciate it very much. Say, now before we begin, would you just tell our audience a little bit about the mission of the ACLU and just so people don't have a false assumption of what the ACLU is all about? Sure. So again, thank you for having me and aloha to everyone at home. I'm, as you said, from the American Civil Liberties Union of Hawaii and we are a non-profit, non-partisan, non-governmental organization that over 50 years here in Hawaii and almost 100 years nationally have been fighting for civil rights and civil liberties in courts, in the legislature, and also through public education. Essentially, we protect the rights and civil liberties enshrined in the US and Hawaii constitutions and laws. Great. Well, thank you for clarifying that. I think people have a lot of preconceptions about the ACLU and they say they're an ultra-liberal organization, but you've taken on many conservative causes too, if it just involves the First Amendment itself. Absolutely. Yeah, as I said, we're non-partisan. We never have supported a candidate or even a nominee for a position or a post. We are issue-based, which means we just look at the agenda and campaign promises made by different candidates and we provide, of course, commentary. And yeah, we're not neither left nor right. In fact, one of our first attorneys was Justice Frankfurter, who was a conservative jurist who went on to the Supreme Court. Okay, great. Well, thank you for clarifying that for us. You know, when I met you back in December, it was over a forum and the forum was directed towards bail reform here in Hawaii. And as I sat in that audience, I mean, some statistics that were put out, really, this floored me, and particularly how much the state of Hawaii spends on pretrial incarceration. And then what further floored me was just how difficult it is for people to raise bail and to actually get out of prison before they go to trial. So let's talk a little bit about that topic and let's then we'll talk about what was in the 2018 legislature about bail reform and kind of just go from there. Okay, sounds good. So just to frame the issue a little bit for you, we, you know, or work on bail stems from a national campaign called the Campaign for Smart Justice. And the ultimate goal for us is to reduce incarceration by 50% while also fighting, you know, inequalities, racial inequalities in the system. Bail, you know, we're working on bail first because it's one of the places where the inequities and the injustice is more palpable. Again, and just to frame it, we're talking about, when we're talking about bail or pretrial detention, these are people who have been accused of a crime but they have not convicted of any crime. And under the constitution, the government burst the burden to show, you know, beyond a reasonable doubt that they're guilty. And yet far too many of them are, you know, in jail awaiting trial. And many of them feel pressured to have to take plea deals or to perhaps plead guilty when in fact they're not just to get out of jail. So by that fact, just to get out of jail, so they take a plea that therefore increases the expense for housing people that are gonna do time because they took the plea. Absolutely. So as I just said, you know, these are people that have not been convicted of a crime and really the purpose of bail is for the person to either show up in court again or if someone poses a danger to the community, then that person, you know, could receive certain conditions before they're being released. Unfortunately, Hawaii, what we have is that bail for the most part means cash bail. You know, it means money. That's not the case everywhere. And in other places, you can have other conditions that are considered bail, such as for example, monitoring or text messages that you receive so that you show up in court or curfews or just checking in with someone, you know, frequently. And those things are... Those are alternatives to bail. Like house arrest too was part of that. Yeah, house arrest. And so those are alternatives to bail that have been shown to work better than cash bail. The issue with cash bail is that if you have two individuals and they are accused of the same crime, they have the same criminal history, but one of them happens to be poor and the other one happens to be wealthy, the wealthy individual is gonna get out and the poor individual is not gonna get out because he cannot pay the cash bail. So in the United States, how many states do you think are cash bail states? Unfortunately, the vast majority of states are cash bail. It is the minority that, you know, the exceptions are states like Kentucky, which eliminated their cash bail industry back in the 70s or more recently in Jersey, they passed a comprehensive bail reform bill a few years back, essentially making cash bail the exception, not the rule, or the District of Columbia. Under the federal system, they generally do not use cash bail. Instead, what you do is you essentially sign a promissory note, an unsecured bond, telling the government that if you don't show up, you will owe that money to the government. Right. And of those states that did get breakaway from cash bail, what are the statistics about whether or not the accused shows up for trial or do they flee or do the statistics say it works? In general, the statistics say that it works. It works definitely better than here in Hawaii. Their failure to appear rates are lower. Even their crime statistics tend to be better while people are out on bail. And it's all on the details about how these programs get carried out. It's all about how many resources you put into a system that doesn't use cash bail, things like what we call pretrial services, having someone check in with an officer every so often, or again, court reminders, making it easy to come to court. One of the things that we have seen is that if you make it easier to come to court, things like ability to change court dates when, for example, you have work or ability to get transportation to the courtroom. And in some places, they have even provided for childcare. And all of those things tend to lower. Well, some of those provisions were in the House Bill 2229, I think, that there were gonna be some rather innovative ways the court could remind those who are accused to show up for their appointment, because that's the fastest way to go to jail is you just fail to show, right? Yes, and often there is a lot of confusion, but yes, the bill is House Bill 2221. Oh, 21, yeah, it's okay. And we worked on it early on this year. We had just released a bail report, which I have here with me. It's called, Hawaii's Accused, Faced and Unequal Bail System. And this is a preliminary report that looked at bail practices in Hawaii. And one of the reasons we supported this piece of legislation is that it would have made it so that instead of right now, the presumption is that you're gonna get cash bail. This re-institutes the presumption of innocence and requires that you be released unless the prosecutor shows, again, that you post a flight risk or you post a risk to someone else. In which case, the court has to consider all options, all conditions, not just cash bail. Now, were there conditions, and I can't remember if I read it in the House Bill 2221, were there conditions like, were cases of domestic violence, maybe that would not exclude a bail situation? Were there conditions that would preclude for bail? So in general, the exceptions to bail require that the government make a showing that the person has committed a specific crime, normally a class A or class B felony here in Hawaii. And then on top of that, that there are some sort of circumstances, exceptional circumstances that require that the person be held, either they post a threat of harm to someone specifically, or again, they post a specific threat of flight. Absent those circumstances, most people just get cash bail. And one of the things that I forgot to say at the beginning is that actually in Hawaii, cash bail is only supposed to be used to manage risk of flight. And the reason for that is that you actually get your money back even if you commit another crime. So if you're out on bail and you posted $10,000 to get out and you commit another crime and you just show up in court, you're going to get that money back. So really the purpose of bail is just that you show up back in court, is not supposed to manage flight risk. Sorry, I dangerous to someone specifically. So if I recall back in December, I think you mentioned that Hawaii is a little bit unique because usually it's the city or county that has a pre-trial jail system set up. But in the case of Hawaii, it's the state of Hawaii that actually has that responsibility, which is kind of unusual, I think. Yeah, Hawaii is fairly unique, I think along with Alaska, in that all our jails and prisons are run by the state. They are not run by the counties. This happened in the 70s where essentially the counties passed management and ownership of the jails to the state. And what that means is that even though you're normally arrested by the county, normally it's the HPD or the Maui police that would arrest you, you're quickly going to custody by the state. Unless you post bail within 48 hours, for the most part you're going to end up either here on Oahu at the Oahu Community Correctional Center and in other islands at whatever triple Cs they have, M triple C or H triple C, and essentially be in the care of the state, not the county which originally arrested you. So I guess what I'm getting at is the judges who, you know, they're actually, they're not following a state guideline per se, but they're taking the recommendation of the local police department about bail conditions. Yes. So it's confusing to me that the state runs the jails, but the judges listen to the local police department about the conditions of whether bail should be set or not. And I guess that's confusing to me. Absolutely. And let me just tell you a little bit about how bail is set because it might explain what's going on, but it is confusing even to us, which is that so in Hawaii, money bail, cash bail is set as a condition of release for felony cases in 88% of cases. That's what we found in our study. And only about 44% of people managed to post that bail amount. 40%. 44%. Okay, 44. So it's relatively low. We know for example here on Oahu, the average amount is about, it's a little bit over $20,000. That's a lot of money. And even the median amount is about $11,000, $15,000. And one of the things that makes us very, very concerned is that in 91% of cases, the initial amount set by the judge mirrors whatever was proposed either by the police or by the prosecution. So when you're arrested, there is either an arrest warrant or you get indicted through some charge filed by the prosecutor's office. And in 91% of cases, the court agreed with the amount that was set by the police or the prosecutor's office. Which to us meant really that there was no individualized process to determine is this person dangerous? Is this person of light risk? And I will then determine what is the right amount or what are the right conditions? Instead, cash bail seems to be again, the norm and ability to get out or getting released on your own recognizance is the exception. I mean, isn't bail designed or ideally designed to look at the individual and that individual's risk of flight or whatever versus a cookie cutter cookbook approach to bail? Absolutely. And why aren't the judges, in your opinion, why aren't they not following the custom model versus the cookie cutter model? I think let me first address the first question, which is yes, due process requires that you look at the individual and you determine is this individual a risk of flight? Is this individual a risk to the community? And then you set bail based on those specific considerations. And there should be due process in making that determination. It just shouldn't be fact-free or based on wrong assumptions. It should be based on that individual's record and that individual's history. Otherwise, again, what you have is a presumption essentially of being dealt. Yeah. So that's one thing. In terms of why judges follow the system as it is, for a number of reasons. One, it has existed for a very long time and it's a comfortable system. Essentially, it creates the fiction that you are allowing the person to get out because, again, you're not detaining them if they pay the amount. And for 44% of people, that is the case, they managed to pay that amount, often still creating all sorts of hardship because to explain a little bit about how the process for posting cash bail works is that... What we're gonna do, we're gonna take a quick break and then we'll get right back to some of those conditions. Sure. So, I'm Tim Appichella, I'm here with Matteo Caballero. We're talking about bail reform and the ACLU and we'll be right back. Match day is no ordinary day. The pitch, hallowed ground for players and supporters alike. Excitement builds, game plans are made with responsibility in mind, celebrations are underway. Ready for kickoff, MLS clubs and our supporters rise to the challenge. We make responsible decisions while we cheer on our heroes and toast their success. Elevate your match day experience. If you drink, never drive. Living in this crazy world, so caught up in the confusion, nothing is making sense for me. Welcome to Sister Power. I'm your host, Sharon Thomas Yarbrough, where we motivate, educate and power and inspire all women. We are live here every other Thursday at 4 p.m. and we welcome you to join us here at Sister Power. Aloha and thank you. Aloha, welcome back. I'm Tim Appichella, filling in for Jay Fidel and I'm here with Matteo Caballero. He's the legal director of the ACLU here in Hawaii. And before the break, we've talked about bail reform and we're gonna talk about bail reform and some of the other things that the ACLU is up to and some other issues, nationwide issues that actually are of some concern. So Matteo, thanks again. Sorry for the interruption. That's fine. But we are talking about some of the conditions of the reform. Sure, so I wanted to quickly touch base on how people actually post bail because that matters. And the way people post cash bail is that 44% of people that actually are able to kind of afford the cash bail amount, for the most part, they end up going to a bonds agent. And what that means is you normally pay 10% of the amount of bail set, but you never get that amount back. Which, again, doesn't make quite sense because- Is it a percentage of the total amount? Yes, essentially it's about 10%. So let's say if the amount of bail is 10,000, you post 1,000 and normally you can get out. Now, you're never gonna get that 1,000 dollars back. And so if you think about it, it doesn't make a lot of sense because if the purpose of bail is for you to show up because you're gonna get the money back, in fact, you're never gonna get your 1,000 dollars back because you gave it to a bonds agent. So it doesn't work at that level. But what I was about to say is that for the most part, judges are just very used to the way cash bail works. They think that most people have access to at least 1,000 dollars to go to a bonds agent. But as we found out, that's not the case for a lot of people. And ultimately, again, there's I think a concern not just from judges but also sometimes community and the prosecutor's office that if you let someone out and that person commits another crime, then they're gonna be blamed for it. The reason I think that's not the right way of viewing this issue is that right now you could be letting out the most dangerous person just because that person can afford cash bail. So it could be... So it's all about resources and not a real threat. Exactly. So what we're arguing is that, again, you look at the actual information about the individual and then you make a determination based on that. And in our experience, that will result in both a more constitutional system but also a safer system. So tell me why House Bill 2221 or Senate Bill 2860 basically didn't... It was deferred on February the 1st, 2018. Didn't even get... It got through the first reading, but that was about it. Yes. What happened there? So it did go to one committee. It went to a public safety committee and they heard the bill and it was deferred. But the reason it was deferred is that there is a task force that was formed last year. It's the House Concurrent Resolution 134 task force and they are looking at pretrial detention in Hawaii and they will come out with recommendations later this year. So essentially what the legislature said was we're going to wait for the task force to come out with recommendations and then based on those recommendations, we will make changes. We are hopeful that the task force will in fact agree with most of what is on our report. We did a presentation before the task force and some of the people in task force were receptive for the changes that need to happen. And ultimately, I mean, from our perspective, change is going to happen one way or the other. On the one hand, you have a lot of changes nationally. Criminal justice reform is happening not just in blue states, but actually many of the states that are leading the charge are red states because they realize that they're just wasting money and resources. A big part of the state's budget is being for incarceration. Exactly, yeah. So that same reality is coming to Hawaii. We're spending more and more money to keep people in jail that may or may not post a threat to anyone. We really don't know because we're not following the right process. Right. And so that's one thing. The other reason why it needs to change is because it is unconstitutional. The current system, the way it works in Hawaii is that if you're poor, you cannot get out. And several courts, including more recently, one of the more conservative circuits, the Fifth Circuit, ruled that a money bail system that doesn't distinguish between the poor and the wealthy is unconstitutional. Yeah, that makes sense. Plus my hope for the 2019 legislature, hopefully this will get more light shed on it and it will make further progress and hopefully eventually be signed into law by the governor. So fingers crossed on that. I'm gonna switch topics here a little bit. I wanna go to something that was of concern by the Department of Homeland Security Secretary Kirsten Nielsen who proposed about putting together a list, a list of journalists, a list of people who are influential, of top bloggers or podcasts. And I guess from their perspective, this list was to have it as a reference list. But for a journalist or anyone else, I mean, we remember the battle days of the Nixon administration back in 1971 where there was actually an enemy's list. In fact, the exact title of that list, which was put together by Charles Chuck Coulson, was called the Opponents List and the Political Enemies Project. And on that list, there were 20 individuals. One was actually the actor Paul Newman and the other was Daniel Shore. And actually Daniel Shore thought about this list and as he is reading it on the CBS News, he realized his name was on the list as he was reporting it live. So, but the problem is when you have a list that involves journalism, you have to think, is the First Amendment under attack? Now, this administration has made many overtures about fake media and basically, the fact that journalists aren't doing the job that he thinks should be done. And that's not how journalism works. But the bottom line is, to what concerns should we be concerned about this from an ACLU standpoint? So, we are concerned, along with many journalists and media organizations. In fact, one of the first things that ACLU did or National Office did was to send a FOIA request, FEMA Information Act request, to the Department of Homeland Security, asking them about why now, why they're putting together this list. And by the way, what was reported is that they have a request for proposals. So, they are not assembling the list yet. Instead, they're outsourcing that to someone else that is going to put this list together. And among the things that I think worried a lot of people is that it was just not a list of journalists, but also in congressmen. Yeah, well, not congressmen. It was journalist influencers, I guess, that could be. I'm sorry, I was thinking of the one back in 1971. Yeah, yeah. But I guess an influencer could be someone in public policy. And that it provided information such as positions that they had taken and also anything else that might be relevant. So, really, it's a very open-ended list and that does raise a lot of red flags. Particularly, again, as you said, from an administration that has been very critical of the media calling reports fake news, even though they are demonstrably true. And that actually, this is not the first time you have had such black lists with this administration. One of the things that happened during the campaign, and again, the campaign feels like ages ago, just a few years ago, then Trump campaign had actually a black list of journalists that they would let or not let into their valleys, into their, to cover campaign events. Right, they were barred. Yeah, they were barred. And at one point, I remember CNN was on it. I mean, these were major news organizations in those lists. And of course, given that history, I think the fears that you just really make sense. Well, let me go back down to history real quick, because White House attorney, John Dean, back in the 70s, he wrote a memo to Mr. Higbee. This is dated August the 16th, 1971. And he said, the purpose of why this list was there was the following. The memorandum addresses the matter of how we can maximize the fact of our incumbency in dealing with the persons known to be active in their opposition to our administration. Stated a bit more bluntly, how we can use the available federal machinery to screw our political enemies. And primarily that list was by the use of the IRS to perform audits to harass those who oppose the administration, particularly if they're speaking out against the war in Vietnam. Now, to the IRS commissioner's credit, Mr. Donald Alexander, he refused to launch any audits. So there was a check and balance system, if you will, but sometimes in our administration here today, we don't always see that check and balance. And even back then, I mean, as you said, the IRS commissioner at that time refused, but as you probably remember, in the aftermath of Watergate, you had the church committee, which essentially looked at the practices, not just of the IRS, but also of the CIA and the FBI, and they essentially found that both agencies have had used resources to go after political enemies. And that's what resulted in the FISA court and the FISA system, where before any of these agencies collects data or tries to do surveillance on people in the United States, they're supposed to get a warrant from the FISA court. Faring Intelligence Service Act. So I mean, although these are different times, but one could be, could construe this, I think it's 500, a list of 500 individuals, even if it's contracted out, it could be somewhat disconcerting, particularly if the majority of that list are journalists. So I welcome the ACLU's observation under this, under a microscope, if need be, but we hope that the national ACLU will actually keep tabs on this. And we certainly will. And again, this is not happening in a vacuum. Department of Homeland Security, for example, at this moment in time, is actually trying to get social media information from foreign nationals that want to come into the United States. And sometimes they keep tab on your social media account information for years, even after you become a US citizen, you go through, become a green cult holder, and then a US citizen, they will continue to keep tabs on your social media information. Despite Facebook's new overtures about added privacy. Despite that, and one of the reasons I think they're going to use, actually the administration is going to use the alleged attacks by Russia and interference in US elections, is that they are saying, and we're already hearing this, that this list is supposed to keep tabs on legitimate journalists versus fake news organizations that are trying to attack our electoral system. And in fact, is that the official response? It is part of the official response. And if you look actually at the department, so the Department of Homeland Security is divided in many agencies, of course. And the department that is looking at this is the National Protection and Programs Directorate. And they're supposed to be the ones that look or protect both the physical and cyber infrastructure of the United States. So the sense is that they might be collecting this list in part as response to what happened during the last election. Interesting. Well, I know as this topic goes on, I hope the ACLU is going to keep tabs on it. And Mateo, I want to thank you very much for joining Think Tech Hawaii on Community Manors. And it's been a real pleasure, and we hope to see you again. Thank you. I'm Tim Apachele, in for Jay Fidel, and this is Community Matters. And I'd like to say aloha. Thank you for joining us.