Hawaii Public Defender James Tabe is once again urging the state Supreme Court to order the release of low-risk prisoners from Hawaii prisons and jails, citing the “exponentially more dire” risk of delta variant Covid-19 infections inside state correctional facilities.

The Supreme Court twice before issued orders that prompted the release of hundreds of non-violent offenders — including some accused felons. But in April the justices ended that intervention as case counts declined inside and outside the correctional system.

The latest filing by the Public Defender’s Office argues that with the spread of the delta variant “the necessity for this Court to once again intervene is urgent. Rather than being in a downturn in case counts … we are facing a rapid upswing of unknown severity.”

Remnants of the quarry in Halawa frame what is called 'Main Street' as inmates traverse from modules to modules. file photograph from 2015 December.
A new filing by the Office of the Public Defender asks the state Supreme Court to release low-risk inmates to reduce the spread of Covid-19 in state correctional facilities. Cory Lum/Civil Beat/2017

The latest statistics released by the state Department of Public Safety show more than 2,600 Hawaii inmates in seven facilities have tested positive for the virus since the pandemic began, along with 319 correctional workers.

Covid-19 has been blamed in nine inmate deaths, and at least two more prisoners also had the virus when they died last year. Those two inmates were deemed to have died of pre-existing health problems.

The new 173-page filing by the Public Defender’s office relies in part on the findings of U.S. District Court Judge Jill Otake, who last month ruled the Hawaii correctional system failed to follow its own Pandemic Response Plan.

Otake ordered the state to follow its response plan but the state filed an appeal, and the two sides are negotiating a possible settlement of the lawsuit. Meanwhile, DPS data shows another 444 Hawaii inmates have been infected since Otake issued her decision on July 13.

The filing by the Public Defender’s Office calls the delta variant a “game-changer” for the spread of Covid-19 in Hawaii, adding, “the necessity for this Court to once again intervene is urgent.”

“Prisons have a unique mix of aggravating factors that make incarcerated persons especially vulnerable to COVID-19 infections – overcrowding, insufficient sanitation, poor ventilation, and inadequate health care,” Deputy Public Defender Jon Ikenaga argued in the filing.

The Supreme Court’s previous orders helped to reduce the jail and prison populations, but it’s not clear how many prisoners were released in all.

“The necessity for this Court to once again intervene is urgent.” — Hawaii Public Defender’s Office

Corrections officials report 430 inmates were released under the order that extended from August 2020 to April 2021, and a spokeswoman for the state Judiciary said about 100 inmates were released under the earlier order.

Since then, Hawaii prison and jail populations have increased again, according to Ikenaga, with the inmate populations at both Maui Community Correctional Center and Hawaii Community Correctional Center now exceeding the facilities’ design and operational capacities.

“The virulent spread of the virus within the close quarters of Hawaii correctional facilities will inevitably lead to a public health emergency which will tax the capacities of the health care system and the limited resources of the state’s hospitals and health providers on each of the islands,” according to the Public Defender’s motion.

“This situation requires that this Court once again take swift action to reduce the populations at Hawaii correctional facilities in an effort to mitigate the harm that the current surge in the pandemic will inflict upon incarcerated persons, staff and the people of Hawaii.”

The motion asks the Supreme Court to declare that when attorneys file motions seeking the release of qualifying inmates, the releases will be “presumed” unless the judge finds release of a prisoner would pose a significant risk to the safety of the prisoner or the public.

That standard would apply to inmates awaiting trial or serving time for most misdemeanor or petty misdemeanor convictions, and some felons or accused felons who are sentenced to 18 months in jail or less as a condition of probation.

However, the presumption that a prisoner will be released would not apply to misdemeanor offenders convicted of abuse of a family or household member or violating a restraining order, or to felons who are serving time for a number of offenses including sexual assault, robbery, burglary or abuse of a family or household member.

The court should also order that pretrial detainees who are not a risk to public safety or a flight risk be released without being required to post cash bail, according to the Public Defender’s filing.

The petition also asks the court to appoint a public health expert to enter each correctional facility to review infection prevention protocols and inmates’ ability to maintain social distance, and then make recommendations for any changes that are necessary.

Matt Dvonch, special counsel to Honolulu Prosecuting Attorney Steven Alm, said in a written statement that Alm’s staff is reviewing the petition, and will file a reply with the court.

“The Department believes that any consideration by the Hawai‘i Supreme Court of release of incarcerated persons due to the COVID-19 pandemic should be done on a case-by-case basis through a process that ensures the safety of the public,” Dvonch wrote.

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