The combined efforts of defense lawyers, prosecutors and judges have helped reduce the daily flow of prisoners into the state’s largest jail, but the shortage of halfway houses and other community programs for newly released inmates has been aggravated by the pandemic, according to officials with the Office of the Public Defender.
State Public Defender James Tabe told the Hawaii Correctional Systems Oversight Commission Thursday that the inmate population at the Oahu Community Correctional Center declined from 973 on Aug. 17 to 846 on Oct. 5.
“Obviously that is an improvement, but nothing close to where we would like to be,” he said.
Tabe’s office obtained orders this year from the state Supreme Court that established expedited processes for releasing misdemeanor and non-violent felony offenders from jail as part of an effort to reduce overcrowding to limit the spread of COVID-19 inside.
However, those releases have slowed significantly, with only 15 inmates released statewide under those orders in the past month, according to data released by the state Department of Public Safety.
Defense lawyers have been going to court to file separate motions to reduce bail or release arrestees without requiring bail, but Tabe said most of the credit for the decline in the jail population should go to Honolulu District Court judges who are approving the release of the “vast majority” of minor offenders.
“It’s definitely the rule and not the exception, as opposed to pre-pandemic (when) they were holding many more people for these minor petty misdemeanor and misdemeanor offenses,” Tabe said. “Progress is being made, at least at the district court level.”
Deputy Public Defender Jacquie Esser said the flow of felons into the jail has also slowed because people who are released while they are awaiting trial are now less likely to have their release revoked.
Normally when arrestees violate the terms of their release by failing to check in with the intake service center, that triggers a process where judges issue bench warrants for their arrest.
“I have noticed, probably within the last three weeks, that judges have not been issuing bench warrants immediately, and they are setting it for hearing,” which allows the arrestees’ defense lawyers to locate their clients and get them to come to court, Esser said. “That has helped.”
The court arraignments for felony defendants that take place twice a week normally involve 20 to 30 defendants, she said, but prosecutors now are “using discretion and not charging cases right away that didn’t have to be” charged. The last time she handled an arraignment about two weeks ago, only three to five defendants appeared, Esser said.
“That also helps keep the numbers down as far as people coming into the jail through the front door,” she said.
But she predicted that the jail population will begin to creep up again because jury trials in First Circuit Court on Oahu have been suspended until after Dec. 11 because of the pandemic.
The American Civil Liberties Union of Hawaii and the Hawaii Disability Rights Center filed a friend-of-the-court brief with the state Supreme Court in late September urging the court to order additional releases from state jails and prisons given the recent outbreaks of COVID-19, but Tabe said the court has not acted on that filing.
The ACLU brief argued that treatment of inmates in the pandemic amounted to unconstitutional cruel and unusual punishment, and alleged the state is illegally discriminating against people with disabilities who have been jailed.
The filing seeks the release of inmates who are medically vulnerable or have disabilities, and urges the court to set population targets in the jails and prisons to lower the inmate census and help prevent the spread of the virus. It also urges to court to appoint an independent public health expert to review the jail pandemic plans, and to expand testing for COVID-19 in correctional facilities.
Another problem is that many community-based drug treatment or other programs have a moratorium on accepting people who are released from OCCC, and it is difficult to place people in programs after they are released, Esser said.
Fred Hyun, acting director of the state Department of Public Safety, said the Hawaii Paroling Authority will only revoke parole and send offenders back to jail “if it’s absolutely necessary.” But he said some clean and sober houses have wait lists of 150 people, and some have wait lists of six months before they can be accepted into the program.
“Most of the programs now are wanting to have negative (COVID-19) test results before they’ll accept the individual into the program,” Hyun said. “The system, we’re kind of in a bind because of lack of placements.”
More than 400 OCCC inmates tested positive for the coronavirus in the outbreak there this year, but jail officials report that 380 have now recovered. Testing of inmates and staff at the jail is continuous, according to the department.
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