Judiciary Once Again Mulls Immediate Release of Non-Violent Inmates

O’ahu Community Correctional Center

The Hawai‘i Supreme Court is considering the immediate release of non-violent offenders from correctional facilities statewide as the Public Safety Department addresses a COVID-19 outbreak at O‘ahu Correctional Facility.

On Friday, the court convened to hear the Office of the Public Defender’s (OPD) petition to reduce the inmate populations. The petition seeks the expedited release of certain categories of inmates from the state’s correctional centers and facilities, without the filing and hearing of individualized motions for release. However, the Office of the Attorney General opposes releasing so many inmates and detainees without evaluating each one individually.

OPD’s petition comes after months of working toward alleviating overcrowding in the jails statewide to avoid such a breakout as the one currently unfolding at OCCC. PSD was working with OPD as well as county attorney’s offices in an effort to safely reduce population numbers reviewing inmates on a case-by-case basis under the guidance of a court-appointed special master.

On Friday, Deputy Public Defender Susan Arnett expressed the urgency to take a more aggressive approach, describing the previous strategy as too time-consuming and cumbersome.  Currently, OCCC has 124 inmates diagnosed with the virus as well as 23 adult correctional officers. PSD is currently working with DOH to do mass testing at OCCC.

“We think there should be an immediate release of probationers and pretrial detainees,” Arnett said. “Those pregnant or over 65 should be at the front of the list for release.”

In response to OPD’s petition, the supreme court requested PSD provide a list by Aug. 17 of inmate names from OCCC that qualify for such a release as well as test results for those prisoners who’ve been tested for the coronavirus.

“We need to get anyone who is negative out before they become positive,” Arnett said.

OPD believes the following prisoners could be released immediately:

• Inmates serving a sentence (not to exceed 18 months) as a condition of felony deferral or probation.
• Inmates serving sentences for a misdemeanor or petty misdemeanor convictions.
• All pretrial detainees charged with a petty misdemeanor or a misdemeanor offense.
• All pretrial detainees charged with a felony.

Prisoners who are in jail for sexual assault, family abuse, those who’ve violated temporary restraining orders, as well as burglaries and robberies, don’t qualify for this release.

Arnett said those inmates recommended for release don’t need to be assessed one-by-one.

“This fear that we’re going to have significant reoffending, I think, it’s misplaced,” she added.

Hawai‘i Attorney General Clare E. Conners told the justices during Friday’s hearing that the state believes the process for the release of inmates has to be individualized.

For the past several weeks COVID-19 has impacted communities throughout Oahu. As a result, Conners argued the cluster within the jail was bound to happen.

“What we’re seeing is widespread community spread,” Conners said.

Associate Justice the Honorable Michael D. Wilson disagreed with Conners’ assessment.

“This was not unexpected,” Wilson said. “You were put on notice.”

Conners said this is a concern for the entire state, not just for inmates, but for all those involved in public safety.

Hawai‘i Community Correctional Center

The Kona Public Defender’s Office said any measures to reduce inmate populations should apply to facilities statewide, including Hawai‘i Community Correctional Center (HCCC). With a design capacity of 206, the Hilo jail is over capacity with 356 prisoners as of Aug. 6.

Twenty-nine inmates have been tested at HCCC since the pandemic began. All results were negative.

“It’s created another overcrowding situation — it only takes one,” said Ann Datta, supervisor over the Kona Public Defender’s Office. “The reason OCCC has a problem is because they didn’t test.”

PSD officials say they are following CDC guidelines when it comes to COVID-19 testing.

“New intakes are screened for symptoms per established protocols,” said PSD Spokeswoman Toni Schwartz Friday. “PSD’s Health Care Division has gone to great lengths to make sure a comprehensive plan is in place to safeguard the health of all inmates and staff in our facilities.”

While mass testing is currently underway at OCCC, Schwartz would not confirm whether or not widespread testing would take place in other facilities.

“We will continue to seek guidance from the Department of Health as we work through this situation,” she added.

Datta said many of the prisoners they’re hoping to get released are those pretrial detainees in jail because they can’t make bail.

“There are people facing a death sentence because they’re poor,” Datta said. “That is cruel and unusual punishment.”

Datta said their clients are telling them there are people sick in the jail and reports that the correctional officers aren’t wearing masks and inmates aren’t wearing their masks properly.

If COVID-19 goes viral in HCCC, Datta questioned what Hilo Medical Center’s capacity is to treat those sick inmates on top of the public.

“That’s a public safety concern,” Datta said. “There are no easy answers.”

Hawai‘i County First Deputy Prosecutor Dale Ross said her office objects to the wholesale release of inmates as requested by the public defender’s office.

“We believe it would be more prudent to review the list of qualified inmates and to make individualized assessments to determine if inmates can be released safely,” Ross stated in an email Friday afternoon.

Ross said the prosecutor’s office received a partial list and is awaiting the rest of the list of offenders who fall into the categories in the petition.

“We will do individualized reviews of each case as quickly as we can,” Ross stated.

Ross said the Hawai‘i County Prosecuting Attorney must file a response to OPD’s petition by Monday at 4:30 p.m.

“We would like assurances that people have a place to go and are able to be contacted for future court appearances or contact tracing,” Ross added.

Hawai‘i County Prosecuting Attorney Mitch Roth, and candidate for Hawai‘i County mayor, said OPD is always concerned about a possible outbreak in HCCC but to date, there hasn’t been a single case in the Hilo jail and it doesn’t have the same issues that OCCC is currently facing.

“There is this misplaced fear that all these inmates are going to die,” Roth said Friday. “We haven’t had any deaths or people going to hospitals.”

Roth agreed they have to be cautious, adding he has offered suggestions on how to continue to house inmates safely, including having a separate facility to provide quarantine, even tent prisons.

“But being cautious doesn’t equivocate to releasing people and putting them on the street,” Roth said.

The World Health Organization declared COVID-19 a worldwide pandemic in March. As of Friday, the Department of Health reported 4,543 infections statewide. Hawai‘i’s death toll stands at 40.