The Hawaii Supreme Court appointed a special master Thursday to oversee the effort to reduce Hawaii’s jail and prison population in response to the COVID-19 pandemic.

Retired Judge Dan Foley will work with public defenders, prosecutors and others on the effort. The court said it will not issue a “blanket order releasing large numbers of inmates” at this time.

Foley will have to produce an initial report by April 9 with recommendations.

The Supreme Court’s order was in response to two petitions filed by the state Office of the Public Defender asking for large-scale release of inmates, some of whom are pretrial detainees, convicted of misdemeanors or petty misdemeanors or serving sentences as conditions of probation.

On Monday, the public defender’s office submitted a list of 426 inmates who met the criteria that the court laid out in a previous order. But Hawaii Public Defender James Tabe said the process was at an impasse because there were disagreements with county prosecutors about who would be released and under what conditions.

OCCC Oahu Community Correctional Center Dillingham side.
Inmates at the Oahu Community Correctional Center sometimes have to triple-bunk because of overcrowding. Cory Lum/Civil Beat/2018

For example, the Honolulu Prosecuting Attorney’s Office submitted only 13 names of pretrial misdemeanants it would agree to release. That would not make a dent in the overcrowding situation at the Oahu Community Correctional Center, Tabe said.

The prosecutor’s office did not return calls Thursday. But it said previously in court filings, “If an en masse release of inmates is effected without appropriate and reasoned safeguards, such release will senselessly exacerbate the considerable anxiety the community is experiencing.”

Tabe, the public defender, said having a special master will help move things along. “This is what we asked for, so hopefully the special master will come out with a decision,” he said.

Now, at least there’s a timeline and recognition from the court that the jail population needs to be reduced, he said. He said he hopes the community will realize an outbreak in correctional facilities would deplete medical resources.

“All they have are medical units,” Tabe said. “They’re essentially infirmaries. They’re not hospitals. They would have to go to the hospitals.

“This is part of the effort to flatten the curve.”

While there are no confirmed cases of the virus in the state’s correctional facilities as of Thursday, the public safety department announced that an inmate at the Oahu Community Correctional Center has been tested and the result is pending.

That person is not showing symptoms, but has been put in medical isolation “out of an abundance of caution,” the department said in an email. The test was administered by a hospital prior to the individual entering the facility on April 1.

Another inmate at the Hawaii Community Correctional Center tested negative for the virus, the department said.

HPD Chief of Police Susan Ballard at the police commission meeting.
HPD Chief Susan Ballard says government resources are already stretched thin. Cory Lum/Civil Beat/2020

The Honolulu City Council and the Honolulu Police Department have pushed back against the public defender’s effort.

With government resources stretched to their limits, “oversight of released persons will be virtually non-existent,” Police Chief Susan Ballard wrote in a letter to the Supreme Court. “Self-quarantine requires discipline and obedience to laws and rules, qualities convicted prisoners have already demonstrated they lack.”

Mateo Caballero, the legal director of the American Civil Liberties Union of Hawaii, which has been calling for inmate releases since early March, said he understands the concerns of the chief and the public. But releasing certain inmates is what public health officials are telling governments to do.

“These are special circumstances,” he said. “We cannot continue doing business as usual.”

The ACLU of Hawaii has launched a social media campaign called “#freeourohana” in support of releasing the inmates, as well as to advocate for the release of elderly and medically vulnerable inmates.

Cabellero said he hopes the campaign will serve as a reminder to the public that inmates are people too, and they “deserve a shot at being safe.”

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