The Hawaii Supreme Court on Friday ended a program for the early release of inmates from jail as part of an effort that began last year to control the spread of COVID-19 in state correctional facilities.

The high court said in a three-page ruling that the program is no longer needed because the state Department of Public Safety, which oversees the corrections systems, has begun a vaccination program and has also implemented COVID-19 testing and safety measures. The court also noted the drop in positive cases in the jail system.

“Thus, it appears that the conditions that necessitated swift action by this court in August 2020 are no longer prevalent,” the justices wrote in the ruling.

Chief Justice Mark Recktenwald gestures while questioning City attorney Duane Pang in Civil Beat case. 1 june 2017
The Hawaii Supreme Court issued an order Friday that puts an end to a program to release inmates early and reduce the spread of COVID-19 in county jails. Cory Lum/Civil Beat

The court’s ruling was brief and did not go into greater detail as to why it is ending the early release program. However, county prosecutors and the state have testified in court filings that the program should stop since cases in county jails have declined since last year.

There were no active cases among inmates housed in Hawaii’s jails and prisons or in the Saguaro Correctional Center as of Thursday, according to DPS.

“This morning, the Court recognized that the situation in Hawaii’s correctional facilities has significantly improved since then and we thank the Court for allowing Hawaii’s criminal justice system to move one step closer to normalcy,” Honolulu Prosecutor Steve Alm said in a written statement.

Alm also said that any precautionary measures that the public safety department has implemented must remain in place. Going forward, Alm said his office does not intend to keep all defendants in custody.

“Our focus will be on keeping those who are truly violent and dangerous, as well as those who repeatedly commit theft, in custody pending trial so that the public is protected,” he said.

In a written statement, Public Defender James Tabe said that his office, which pushed for the inmate releases, was disappointed with the court ruling.

“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, adding that the risk of transmission should have been enough to keep the release order in place.

The ruling was signed by Chief Justice Mark Recktenwald and Associate Justices Paula Nakayama and Sabrina Mckenna. Intermediate Court of Appeals Chief Judge Lisa Ginoza was assigned to fill in on the court and also supported the ruling.

Associate Justice Michael Wilson disagreed with his colleagues, and chided them for their decision Friday.

“The incarcerated people of Hawaii are a more vulnerable population. They are captive,” Wilson wrote in an 11-page dissent. “They deserve no less protection from the lethal threat of COVID-19 during the pandemic emergency.”

In its ruling, the high court also said that the public defenders would still be able to request that an inmate be released on an individual basis.

In a follow up interview Friday, Tabe said that public defenders routinely make those requests, and the recent court order will allow judges more discretion over whether or not to grant release. Without the order, Tabe expects getting low-level offenders released could be more difficult.

The court order also said that issues regarding inmate populations should be dealt with by the Hawaii Correctional Systems Oversight Commission, a panel created by the Legislature in 2019 that has struggled to get Gov. David Ige’s administration to hire staff for the commission.

Wookie Kim, legal director for the American Civil Liberties Union of Hawaii, which intervened in the case, also said he’s disappointed with the ruling but will continue to monitor the situation and evaluate what options the ACLU has.

Like Wilson, he called the ruling premature and questioned how the justices could make that determination even as they issue other court orders to limit access to courts to protect judges and staff.

“It’s a bit of an improper double standard that applies to people who are incarcerated,” Kim said.

Decline In Cases, Vaccinations For Inmates

Nine inmates have died due to the coronavirus, and at the height of spread in the jails in August, there were about 298 positive cases at the Oahu Community Correctional Center.

In early April, the public safety department and county prosecutors made their case for why inmates should not be released early from jails.

State attorneys representing DPS said in court documents filed April 7 that the rate of infections in state correctional facilities has declined significantly since then.

The state attorneys describe a robust testing procedure for inmates before admission to a facility and before leaving for a medical procedure or entering a community program. The jails also conduct surveillance testing of inmates and staff, they said. 

Gavin Takenaka, the DPS corrections health care administrator, said in court filings that the first round of vaccinations have been completed at all state corrections facilities. Of the 2,953 individuals incarcerated in state facilities, about 1,800 received at least one dose, according to Takenaka.

Oahu Community Correctional Center guard tower near the corner of Puuhale Street. January 6, 2021
Prison officials say that proper safeguards are in place to protect inmates and staff, but those accounts are being challenged by a medical doctor who regularly visits OCCC. Cory Lum/Civil Beat

Hawaii’s four county prosecutors all agreed in filings earlier in April that the court should put a stop to the early release of inmates. They each cited the public safety department’s testimony.

“With vigorous testing in place and, most importantly, a vaccination program fully underway, the rate of positive cases in the correctional centers and facilities have stabilized and even dropped significantly,” Alm wrote in court filings. “While the numbers are not conclusive as to potential for future spikes, they provide strong evidence that the threat has been diminished.”

Besides OCCC, there have also been COVID-19 outbreaks at the Maui jail. Maui County Prosecutor Andrew Martin said in court filings that the situation there has improved, and that his office will monitor the situation and adopt policies to deal with future outbreaks.

Also on April 7, the public defender’s office contended that ending the early release program would only lead to a rise in cases again.

“Despite the decline in cases at Hawaii correctional centers and facilities, it is premature to declare victory over COVID-19. Ending release measures would all but ensure that the population at the facilities will increase substantially,” deputy public defenders Jon Ikenaga and Jacquelyn Esser wrote in a court brief.

Meanwhile, other health experts and the ACLU contend that the department’s safety measures are inadequate.

The ACLU and Wilson, the dissenting judge, both look to testimony from Pablo Stewart, a Hawaii medical doctor working with the ACLU on the case.

Stewart says in court filings that he visits OCCC once a week as an attending physician and that he still sees an absence of social distancing and inadequate sanitation and cleaning.

“The men remain crammed in small cells, often on thin, decrepit mattresses, and without the ability to move around or get outside,” Stewart wrote. “In my view, people inside OCCC continue to experience constitutionally prohibited cruel and unusual punishment.”

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