Social distancing is one big thing most of us can do to slow the spread of COVID-19. But the 3,700 or so people behind bars in Hawaii cannot engage in this practice, and in some respects neither can the men and women who guard and care for them in our jails and prisons.
The result is a significant risk of a public health catastrophe in our correctional facilities and communities.
We must also remember the needs of the 1,200 offenders from Hawaii who have been sent away to be incarcerated in a private prison on the mainland. That prison (Saguaro Correctional Facility in Eloy, Arizona) is run by CoreCivic, a company that used to be called Corrections Corporation of America. It has long been notorious for cutting costs and corners in its care of the persons placed in its charge.
Many of the other American cities and states that are facing the coronavirus problem have already released large numbers of inmates.
In Cook County (Chicago), officials have reduced their jail population from about 6,000 to 5,000, and they plan to trim it to 4,000 in the near future.
In Cleveland, the jail population has been cut in half, from 2,000 to 1,000. And in Los Angeles, home to the largest jail in the country (30% of L.A. county’s jail inmates were homeless at the time of their admission), 1,700 inmates were released during the month of March.
All of these cities have more serious crime problems than Honolulu. More generally, more than half of all prison inmates incarcerated in the United States have been convicted of a violent crime, while the proportion in Hawaii is one-quarter or so.
I will not win any popularity contests by pointing this out, but from a comparative perspective, the inmates in Hawaii are not especially dangerous. Hawaii needs to release inmates soon, and on a large scale. For that to happen, what our prosecutors do could be especially crucial, for in many respects they are the most pivotal actors in our criminal justice systems.
By deciding whether and what to charge, they are the main gatekeepers to our jails and prisons. And in criminal justice policy-making, prosecutors tend to get what they want.
In the present crisis, prosecutors should act in the interests of all the people in their community, including inmates.
They also need to be smart on public health. Being “tough on crime” can be good politics, but it is bad policy, even in the best of times. Now it could be lethal.
Hawaii’s jails and prisons are severely overcrowded. As of the end of February, the inmate population in the state’s four jails (Oahu, Maui, Hawaii, and Kauai) was at 135 percent of capacity. Hawaii also locks people up “at more than double the rates of our closest international allies” – and at 10 times the rate of Japan.
Here and elsewhere in the United States, the primary proximate cause of mass incarceration is prosecutor-driven prison admissions.
Some local officials have started to confront the COVID-19 challenge in our correctional facilities. Last week, Mark Recktenwald, the Chief Justice of Hawaii’s Supreme Court, directed criminal justice officials to identify jail inmates who can be released, so as to reduce the inmate population in Hawaii and thereby prevent the spread of the virus among prisoners and staff.
This week, the Office of the Public Defender submitted to Hawaii’s Supreme Court a list of 426 inmates that it believes should be released soon. This is good news, but so far it is merely a proposal, and the clock is ticking.
At the time of this writing (March 31), three of Hawaii’s four county prosecutors — Dwight Nadamoto of Honolulu, Mitch Roth of the Big Island, and Don Guzman of Maui — are opposing the release of large numbers of inmates. Justin Kollar, the county prosecutor of Kauai, has taken a more constructive position, by signing onto a national initiative of more than 30 prosecutors who have committed to charge and release policies that will reduce the number of inmates in their jurisdictions.
In Honolulu, where most of the state’s inmates are detained, there is reason to wonder whether the city and county has the prosecutorial leadership that it needs. Former Prosecuting Attorney Keith Kaneshiro’s office was a cesspool of corruption and mismanagement.
And Dwight Nadamoto has done little to clean house or change course since becoming Acting Prosecuting Attorney in March 2019 (after Kaneshiro became the target of a federal investigation). Nadamoto’s curious statements about the Kaneshiro era even attracted the attention of a federal grand jury.
When Nadamoto recently announced his intention to run in the next election for the job that he now holds, he took the same tough-on-crime line that Kaneshiro long emphasized – and that led to overcrowding in our jails and prisons. “We are going to show that we don’t need prosecutors who are soft on crime or defense attorneys who want to be a prosecutor,” Nadamoto said. “We need a law and order prosecutor.”
The statements he has made since Chief Justice Recktenwald’s call for action seem to reveal a determination to pursue the same counterproductive priorities.
When Robert Jackson was U.S. Attorney General in the early 1940s, he famously said “The prosecutor has more control over life, liberty, and reputation than any other person in America.” This remains true today, and in the present crisis, our prosecutors need to recognize that they are also some of our most important public health officials — for better or for worse.
Prosecutors should act in the interests of all the people in their community.
If Hawaii’s prosecutors do not do the right thing, other officials can act to reduce the risk of COVID-19 infections in our jails and prisons. This is both a moral imperative and a constitutional one. As the U.S. Supreme Court ruled in 1976, “deliberate indifference” to a prisoner’s serious medical needs violates the 8th Amendment’s prohibition of “cruel and unusual punishments.”
Nolan Espinda, the director of Hawaii’s Department of Public Safety (the agency that governs our correctional facilities), should encourage the controlled release of inmates into the community. He should also seek the assistance of experts who could help design new patterns of movement and sanitation in the jails and prisons that he oversees.
For their part, Hawaii’s courts must recognize that they can issue jail and prison population reduction orders, as occurred in California in 2009. That federal court decision (which was upheld by the U.S. Supreme Court in 2011) resulted in a radical reduction of California’s prison population (more than 30,000 inmates were released) — and crime in that state did not increase. As a recent study concluded, “California can downsize its prisons and jails without compromising public safety.”
So can Hawaii.
Finally, if our prosecutors, courts, and correctional officials do not act wisely and speedily, Gov. David Ige should exercise his authority to pardon inmates and order compassionate release. Ige should also undo his decision to suspend the state’s open records and public meetings laws — an emergency declaration more extreme than any in the nation, and one that seems designed to keep the public in the dark about how government officials act.
How criminal offenders are treated constitutes one of the principal indicators of the character of a society. In the days and weeks to come, what will the coronavirus crisis reveal about the content of our character and the quality of our leadership?
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