Hawaii’s highest court is considering the public defender’s request to release hundreds of inmates as the threat of COVID-19 continues to loom over the state’s crowded and outdated correctional facilities, though some prosecutors warn a release en masse would be too risky.

The state public defender’s office provided the Supreme Court a list of 426 inmates who can be released under specific criteria Monday as part of a court order stemming from a petition it filed last week. That includes 137 inmates from the Oahu Community Correctional Center, 44 from Kauai, 45 from Maui, 197 from Hilo, and three from the women’s facility on Oahu.

“It is inevitable that the virus will spread into jails and prison facilities, and, when that happens, the health and well-being of inmates and staff members will be at tremendous risk,” Hawaii State Public Defender James Tabe wrote in the petition.

With two separate petitions to the Supreme Court, Tabe’s office is seeking to significantly reduce the state’s corrections population, as well as get a special master appointed to oversee the process. The list of more than 400 inmates was spurred by the first petition. The second petition seeks to release hundreds more.

Oahu Community Correctional Center razor wire inside jail.
State leaders have been working together to reduce jail population. Cory Lum/Civil Beat/2019

Correctional and detention facilities face heightened risks for COVID-19 transmission, according to the Centers for Disease Control and Prevention, because people live, work, eat and gather within an enclosed environment. Opportunities for the virus to be introduced include intakes, transfers, court appearances and medical visits.

As the pandemic continues, jurisdictions across the country have taken measures to control inmate populations, including releasing inmates by the hundreds. New York City has been scrambling to reduce its jail population, releasing about 650 people Sunday. As of Monday afternoon, 167 inmates, 114 corrections workers and 23 health workers there had tested positive for the coronavirus.

The Hawaii Supreme Court has ordered the public defender’s office to prepare a list of inmates meeting its criteria. Cory Lum/Civil Beat/2016

The Hawaii public defender’s initial petition, filed against the state attorney general and the prosecuting attorneys of Hawaii’s four counties, sought the release of inmates serving a jail sentence as a condition of probation and those serving sentences on a misdemeanor or petty misdemeanor conviction.

Those categories exclude certain inmates, however, including sex offenders and those convicted of burglary or robbery in the first or second degrees or domestic abuse felonies.

The Supreme Court also included a third category of inmates — pretrial detainees charged with a misdemeanor or petty misdemeanor offense, except for domestic abuse or restraining order violations — to be considered in a subsequent order.

“I understand the concern that the public has,” Tabe, the public defender, said. “But if there’s some kind of outbreak in prison, I don’t think they have the capability of quarantining people.”

The public safety department has previously said it believes that it had the capacity to isolate and quarantine inmates and staff should the virus infiltrate one of its facilities.

Hawaii Attorney General Clare Connors, in response to the petition, said while she thought releasing inmates was of great risk to the community, she also realized that the pandemic presented an emergency warranting “preemptive and protective actions,” including reducing jail populations.

Three county prosecutors — Dwight Nadamoto of Honolulu, Mitch Roth of the Big Island and Don Guzman of Maui — opposed releasing inmates en masse.

Their reasons were similar: releasing inmates who may reoffend could be an even bigger risk to the public. Besides, the prosecuting attorneys’ offices are each taking their own actions to reduce jail population, including deferring charging minor crimes and considering supervised release where it’s appropriate.

Releasing inmates should be considered on a case-by-case basis, said Roth, the Big Island prosecutor. “If you go en masse, we’re worried about violent offenders,” he said.

Hawaii County Prosecutor Mitch Roth says releasing inmates should be considered individually, not in bulk. Hawaii County Prosecutor Office

The population has been going down already with individual actions by prosecutors and judges, he said.

Roth cited a public safety department statistic showing that between February 24 and March 27, the population at the Hawaii Community Correctional Center in Hilo went down by 62 inmates. That’s an example of the judicial system already making progress, he said.

The same statistics showed populations at the Kauai facility decreasing by 16, Maui by 71 and Oahu by 207.

“Everybody’s working on reducing the numbers,” Roth said.

Kauai’s Justin Kollar was the lone county prosecutor who did not oppose the public defender’s petition.

Kollar signed onto a national initiative to release low-risk offenders during the pandemic. Except for some who should definitely not be released, including murder suspects and sex assault defendants, inmates should go as soon as possible, he said.

“That is what needs to happen,” he said, “because this pandemic situation is a ticking time bomb for people in the facilities, including the staff and employees there.”

The second petition the public defender’s office filed Thursday seeks wider relief, asking the court to appoint a special master with full authority over population control.

It targets a broader range of inmates, including pretrial detainees held on unaffordable bail, those sentenced to a year or less, those at risk of serious illness from COVID-19, parole violators and more.

Tabe said the goal was to cover “as many as we can” to get the actual number of inmates closer to the design capacities of the state’s correctional facilities.

Oahu Community Correctional Center Module 2 Medical Mental Health. Cell 2019
Three inmates sometimes share these cells at the Oahu Community Correctional Center. Cory Lum/Civil Beat/2019

The named parties in the petition — the governor, public safety director and the chair of the Hawaii Paroling Authority — have until Tuesday to respond.

“We’re facing an extraordinary situation,” said Tom Helper, director of litigation at Lawyers for Equal Justice Hawaii, a nonprofit law firm that advocates for low-income defendants. It has previously called for inmate releases in light of the pandemic. “You’ve got bureaucracies that aren’t necessarily used to dealing with this kind of emergency.”

But it’s clear there needs to be action, he said. “There has to be a recognition that we can’t go about business as usual.”

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