A federal court on Tuesday ordered the Hawaii correctional system to finally follow its own official plan for coping with the COVID-19 pandemic, but stopped short of appointing a special master to oversee efforts to prevent infections in state prisons and jails.

Inmates and staff who alleged the state failed to follow its own Pandemic Response Plan were “credible,” and the lawyers who filed a lawsuit accusing the state of violating the inmates’ constitutional rights during the pandemic likely will win the case at trial, U.S. District Court Judge Jill Otake said.

In a 69-page ruling issued Tuesday, Otake ruled the state Department of Public Safety failed to protect inmates from coronavirus outbreaks that have caused the deaths of at least nine prisoners so far.

The state claimed its failures to follow protective protocols during the pandemic were “occasional lapses,” but Otake found practices such as cramming 40 to 60 inmates in a single room in the Hilo jail “demonstrate objective deliberate indifference.”

“The evidence before the Court demonstrates that (the state) has not taken reasonable available measures to abate the risks caused by the foregoing  conditions, knowing full well — based on multiple prior outbreaks — that serious  consequences and harm would result to the inmates,” Otake wrote.

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 from COVID-19, but U.S. District Court Judge Jill Otake rejected that claim Tuesday. Cory Lum/Civil Beat/2021

The lawsuit on behalf of the inmates cited major COVID-19 outbreaks at six correctional facilities where Hawaii inmates are held, and pointed out that about half the state’s inmate population has been infected. As of Tuesday, 2,200 inmates had become ill with COVID-19 since the pandemic began.

The lawsuit alleges state corrections officials “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, alleged corrections officials “knowingly and recklessly exposed inmates … to a highly contagious, potentially lethal virus” in violation of the inmates’ constitutional rights.

The Attorney General’s office countered in legal briefs that the department has been “proactive and vigilant” in responding to the pandemic despite problems such as overcrowded jails and inmates who refuse to be vaccinated.

Prison and jail officials cited mandates in the department’s Pandemic Response Plan, which calls for new admissions to prison and jails to be tested and quarantined, the use of protective gear and an array of other steps to try to prevent the spread of the disease.

But the judge declared that, “Policies are meaningless if they are not followed.”

In a particularly scathing portion of the ruling, Otake cited the example of an inmate who alleged he was moved from the Hawaii Community Correctional Center in Hilo to Halawa Correctional Facility on Oahu last month while he was ill with the symptoms of COVID-19.

Corrections officials “knowingly (1) transported symptomatic inmates from a facility with an active COVID-19 outbreak, (2) who told staff they were ill, (3) who were infected, (4) but whose infections were unconfirmed due to late or no testing, (5) on an airplane, (6) to a facility with no active COVID-19 cases that previously experienced an outbreak, and (7) then housed those inmates with COVID-negative inmates,” Otake wrote.

“There is almost no clearer an example of complete disregard for the Response Plan and abandonment of precautionary measures to prevent the spread of COVID-19 between DPS facilities and islands,” she wrote in the decision.

While Otake declined to immediately appoint a special master to oversee the COVID-19 prevention effort in Hawaii prisons and jails, she made it clear she can do so in the future if the prison system continues to fall short of the requirements of its own Pandemic Response Plan.

Otake issued a preliminary injunction ordering the state to follow the response plan, and referred the case to Federal Magistrate Judge Kenneth Mansfield to assure compliance with the injunction. She ordered lawyers on both sides of the case to attend monthly status conferences on the case beginning next week.

Otake also approved a request to certify the case as a class action lawsuit, meaning it can proceed in federal court on behalf of all inmates who are subject to the same conditions.

Read Judge Otake’s order:

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