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A lawyer from the state Public Defender’s Office urged the Hawaii Supreme Court on Friday to authorize rapid releases of inmates who have been jailed for minor and non-violent offenses, arguing that the state must quickly reduce the population at Oahu Community Correctional Center and other jails and prisons to prevent further spread of COVID-19.
Deputy Public Defender Susan Arnett asked the court to authorize the release of minor offenders even if they test positive for COVID-19, and suggested the state Department of Health can find housing for ill inmates in vacant hotels or at other sites.
The Supreme Court authorized a similar expedited process in April that allowed prisoners to file requests with the court for release as a way of reducing the inmate population to prevent infections, but then shut the process down in June as the number of new coronavirus cases in Hawaii dropped.
An estimated 650 inmates won early release under that controversial early release program last spring, which was opposed by state Attorney General Clare Connors and three county prosecutors.
The inmate population has bounced back to its original level since then, and COVID-19 infections in the community at-large have surged to record levels.
The pandemic has now spilled over into the state’s largest jail, and Public Safety Director Nolan Espinda told the court on Friday that 126 inmates in Oahu Community Correctional Center have tested positive so far. The department says 22 staff members have also tested positive for the virus, including 19 at OCCC.
Under the circumstances, Arnett said court reviews of each individual case — which was the process used for the expedited releases last spring — will take too long. She said the process used last time is “too cumbersome and time consuming” given the immediate risk of new infections.
The Public Defender’s Office is asking that inmates be eligible for immediate release if they are serving less than 18 months as a condition of probation for non-violent felonies, or awaiting trial for non-violent felonies. It would also include those who are serving time or awaiting trial for misdemeanor offenses other than domestic abuse cases.
The filing also asks the court to require that the Hawaii Paroling Authority begin processing requests for early parole for sentenced felons as well as prisoners who are older than 65 or have underlying health conditions who would put them at greater risk of severe illness or death if they are infected.
The public defender is also asking the court to order the corrections system to test all inmates and staff for COVID-19.
Acting City Prosecutor Dwight Nadamoto countered that any inmate who tests positive for the virus or is waiting for test results should not be released, and the cases of inmates who test negative should be considered individually before they are released no matter what the charges were that landed them in jail.
“This is because their full criminal history must be vetted so we can ensure that we are not releasing somebody dangerous into the community,” he said. Nadamoto also argued that the inmates should have a verified residence before they can be released, because homelessness may set them up to re-offend.
He said the Honolulu police reported they re-arrested about 130 of the inmates who were released under the expedited process in the spring, but acknowledged under questioning by Associate Justice Sabrina McKenna that some of those arrests were for technical violations of the conditions of release, rather than for new crimes.
Arnett told the court that certain groups of inmates can be released without an individual court review of their cases, including pre-trial detainees who can’t afford bail, offenders who are serving jail time as a condition of probation, and sentenced felons and sentenced misdemeanor offenders who have less than six months left to serve on their sentences.
State Attorney General Clare Connors argued otherwise, saying “the process must be individualized” as part of a risk assessment and a health assessment by the state Department of Health.
“There is now an effort by the Department of Health to track how this disease may move out of the prison and out of the facility where we’re currently containing it,” Connors said.
A filing with the court by Connors says that the state is “amenable to releases of inmates from OCCC so long as the releases are based on individualized determinations of the impacts on public health and safety, and the health and safety of the inmates themselves.”
Connors also said that given the sudden spread of COVID-19 in the Honolulu community, “it would have been impossible for the state’s correctional facilities to remain free of COVID,” but that drew a sharp reply from Associate Justice Michael Wilson.
Wilson recalled that Connors argued last spring that the expedited inmate release process established by the Supreme Court and the special master who oversaw it were no longer needed.
“Back in June, you convinced the majority of this court that Public Safety and your office would be able to protect the inmates and staff at OCCC from the coronavirus without a special master, so I wanted to ask you, what happened?” Wilson said.
“The virus has become a tremendous threat, it has grown rapidly, you’ve had months to deal with it, and it appears that … you just determined social distancing wasn’t possible, you determined that reduction of the inmate population to design capacity isn’t possible. If that’s the case, those were the two pillars on which I think this court was assuming there would be some capacity on the part of Public Safety to protect the inmates from what’s happened now,” Wilson said.
Connors replied that the surge underway in Honolulu was unexpected, but Wilson interrupted to tell her experts did predict the surge, and “to say that this is something that was unpredictable is false.”
COVID-19 has been detected in OCCC Modules 7, 18 and 19 as well as Annex 1, and Espinda told the court that it is impossible to provide a separate cell for each inmate. Corrections staff will erect tents in the jail’s recreation yard to create additional living space so that infected inmates can be separated from prisoners who do not have the virus.
The court took the case under advisement, and will issue a decision later.
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