Corrections officials have botched the COVID-19 pandemic response so badly in Hawaii’s prisons and jails that the state is violating the constitutional rights of the inmates, an attorney for the inmates told a federal judge on Thursday.

A lawsuit filed on behalf of the inmates in June points out that major COVID-19 outbreaks have occurred in six correctional facilities holding Hawaii inmates, and about half the state’s inmate population has been infected. In all, the Department of Public Safety reports 2,188 inmates caught the coronavirus since the pandemic began more than a year ago.

The department reports nine inmates have died of the respiratory disease, and at least two others had the disease when they died. Autopsies done in Arizona in those two cases concluded the prisoners died of health conditions such as obesity and diabetes, rather than COVID-19.

Elderly inmate sits in cell at Halawa Correctional Facility in module during tour 2019 tour.
Lawyers for a group of Hawaii prisoners say that Hawaii prison and jail inmates are 16 times more likely to catch COVID-19 than people in the general population. Cory Lum/Civil Beat/2019

The lawsuit alleges state corrections officials “have failed to implement most, if not all, of the precautions public health experts have issued to prevent the spread of COVID-19 in DPS correctional facilities.”

Attorney Gina May Szeto-Wong, who argued the case on behalf of the inmates, cited a New York Times article that found Hawaii inmates are nearly 16 times more likely to become infected with the coronavirus than other residents in the islands.

Corrections officials “knowingly and recklessly exposed inmates … to a highly contagious, potentially lethal virus” in violation of the inmates’ constitutional rights, Szeto-Wong said.

She also alleged the department “misrepresented to the public that it had things under control when the truth was far worse.”

State corrections officials deny this, saying in legal briefs that the department has been “proactive and vigilant” in responding to the pandemic despite problems such as overcrowded jails and many inmates who have refused to be vaccinated.

Last month corrections officials announced that more than half of all inmates in custody on June 21 had been vaccinated, although that percentage changes daily as people enter and leave the system. As of that same date, another 1,126 prisoners had refused the vaccine.

U.S. District Court Judge Jill Otake asked Szeto-Wong near the start of the hearing how the data on inmates who refused vaccinations should affect the judge’s deliberations in the case.

State prison officials say they are doing what they can, Otake said, “but they have a significant portion of the inmate population who is not agreeing to be vaccinated, and so there’s almost a sense of, this isn’t really … a problem they have that much control over.”

Szeto-Wong replied that vaccines are not mandatory, and public health officials across the country are coping with the same issue. “DPS must also deal with the fact that individuals have the right to choose to be vaccinated, or choose not to be vaccinated,” she said.

Deputy Attorney General Skyler Cruz said the critical issue in the case is whether the corrections system responded reasonably to the threat posed by the pandemic, and “as a department, I think there’s no dispute that they did.”

For example, he said the department put into effect a lengthy Pandemic Response Plan last year that called for testing, quarantine of new admissions to prison and jails, the use of protective gear and an array of other steps to try to prevent the spread of the disease.

Otake interrupted Cruz at that point to question whether the department’s pandemic response plan is actually being enforced inside the facilities.

U.S. District Court Judge Jill A. Otake says she’ll issue a decision soon. Tracy Wright Corvo

She cited statements filed in the case such as an account by one prisoner who alleged he was transferred from the Hawaii Community Correctional Center in Hilo to Halawa Correctional Facility on Oahu last month without being tested although he was ill with symptoms of COVID-19.

“What motive do these inmates have to fabricate?” Otake asked. “They’re not seeking release, they’re not seeking money, so tell me what motive they have” to lie.

Cruz said he didn’t know, but he pointed to statements from wardens of state correctional facilities that detailed a variety of steps that have been taken to protect the staff and inmates from infection. He said the Pandemic Response Plan “is being implemented, and is working.”

But Otake challenged him on that point as well, asking how the state can claim the response plan is working when 40 inmates were regularly housed in a single room at HCCC known as the “Fishbowl,” and the Hilo jail had an outbreak in May that led to infections of 249 prisoners.

Cruz replied that HCCC had no infections in the year before the May outbreak, but once the virus gets into a facility, it spreads quickly.

The lawsuit alleges there is a risk of harm to inmates from exposure to the COVID-19 virus, but Cruz argued there is “little to no risk of harm from contracting the virus” for the thousands of inmates who were already infected or have been vaccinated.

Filings in the case describe particularly ugly conditions in the Hilo jail that allegedly contributed to the spread of the virus there.

Documents in the case also contend that chain-link enclosures resembling dog kennels are used to house some inmates, while others were held in areas without adequate drinking water or toilets. Detainees “frequently urinate in their drinking cups or defecate in their ‘cells,’” according to the lawsuit.

Cruz told Otake inmates are held in the chain-link areas for four hours or less as they are processed into the facility, and said the jail has discontinued the use of the “Fishbowl” to house inmates.

The lawsuit was filed on behalf of 11 inmates who were held at various facilities, and lawyers for the prisoners are seeking to have the case classified as a class-action lawsuit. The suit asks the court to appoint a public health expert or “master” to oversee efforts by the corrections system to control the spread of the virus.

Otake took the case under advisement, and said she will issue a decision soon.

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