The Hawaii Supreme Court on Wednesday limited the kinds of inmates who will qualify for speedy release from jail under a regime that was supposed to limit the spread of COVID-19 inside state correctional facilities.

The court also instructed supporters to demonstrate why the quick-release program that has been in place since last summer is still needed.

The court said its review of conditions in Hawaii jails found the rate of positive COVID-19 cases has stabilized, vaccination of inmates is underway, and testing and other health and safety steps have been taken at the jails to limit the spread of the coronavirus.

The state Department of Public Safety reported that 1,967 Hawaii inmates have tested positive for COVID-19 and nine have died of the respiratory disease since the pandemic started last year.

However, the correctional system is down to only five active cases, all at Maui Community Correctional Center, according to the department.

Hawaii State Supreme Court Associate Justice Sabrina McKenna questions attorney’s during oral arguments Civil Beat vs city. 1 june 2017. photograph by Cory Lum/Civil Beat
The Hawaii Supreme Court is instructing supporters of a rapid-release initiative for people arrested for misdemeanors and petty misdemeanors to explain why the initiative is still needed. Cory Lum/Civil Beat

The court established the rapid-release program near the height of the pandemic in August, directing corrections officials and lower courts to release many inmates arrested without bail for misdemeanors and petty misdemeanors to help reduce crowding in Hawaii jails.

Misdemeanor domestic violence cases were excluded from that order, meaning that those offenders along with people arrested for violations of temporary restraining orders and violations of orders for protection could still be jailed.

Honolulu Prosecutor Steve Alm publicly pushed back against that initiative this month, and on Wednesday the court agreed with Alm’s request that the court reconsider and amend last year’s order.

Alm specifically cited the case of 37-year-old Randy Jacob, who was arrested four times in March for allegedly grabbing women’s breasts and buttocks in downtown Honolulu.

Jacob was charged with misdemeanor fourth-degree sexual assault in each of those cases, but Alm complained in a March 16 press release that Jacob was repeatedly released. He was also released after being charged in separate harassment and theft cases.

“It is imperative that people like Jacob be held in custody or committed to mental health treatment, whichever is appropriate, in order to protect the public,” Alm said.

Misdemeanors Excluded

His office then filed a request with the Supreme Court on March 17 asking that all crimes included under a chapter of criminal law called “offenses against the person” — which includes misdemeanor sexual assault cases — be excluded from the court’s rapid-release program for minor offenders.

The court agreed with Alm in a two-page ruling Wednesday morning, declaring that petty misdemeanors and misdemeanors such as harassment, fourth-degree sexual assault and misdemeanor assault be excluded from the rapid-release effort.

Alm welcomed the ruling on Wednesday and said he will now file a brief urging the court to abandon the entire rapid-release program.

“Today’s ruling gives District Court judges the discretion to set bail and, in some cases, hold those who commit violent crimes against our residents in custody,” Alm said in a statement.

“This also means that those who need mental health treatment can be committed to the custody of the Department of Health. The bottom line is that our streets will be safer as a result of this order and we thank the Court for its quick action,” he said.

Associate Supreme Court Justice Michael Wilson dissented from the court’s decision, pointing out that when Jacob appeared in court on March 17 in connection with a fourth-degree sexual assault arrest, the judge finally ordered him held for a mental fitness evaluation.

In that case “the court gave no indication of being unable to exercise sufficient discretion to protect the public,” he said.

Wilson noted that while the Supreme Court majority ruled Wednesday that the COVID-19 threat to jail inmates has declined, the court has separately decided the threat to judges and court staffs from infected inmates is so severe that it has suspended inmates’ rights to attend in-person hearings.

The state Department of Public Safety “has failed to remedy the persistent overpopulation” at the Oahu Community Correctional Center, and the recent reduction in the number of infections does not justify a move toward scrapping the rapid-release program, Wilson wrote.

Public Defender James Tabe said his office is “very disappointed” with the court’s ruling and will file a response.

“We believe, along with the CDC, that the COVID-19 variants continue to pose a real and potentially fatal threat of the coronavirus in our already overcrowded jails and prisons,” Tabe said in a statement. “The risk of transmission amongst inmates, jail staff and the surrounding populations should be reason enough to continue the August 27, 2020 court order.”

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