The Hawaii Supreme Court heard new arguments Wednesday on a request from the state public defender that low-risk inmates be released or diverted away from Hawaii prisons and jails to reduce overcrowding and control the spread of Covid-19 inside state correctional facilities.

In a related development, an attorney for the state Department of Public Safety told the court Wednesday the corrections system will now begin generating reports every 90 days on each jailed pretrial inmate to determine whether the prisoners’ circumstances have changed in ways that qualify them for release.

A total of 2,874 Hawaii prison and jail inmates have been infected with the coronavirus since the start of the pandemic, and corrections officials disclosed Wednesday that 32 have been hospitalized so far. Covid-19 has been blamed in the deaths of nine prisoners.

Hawaii Public Defender James Tabe is again urging the Supreme Court to expedite releases of low-risk prisoners from the state correctional system, citing the “dire” risk posed by delta variant Covid-19 infections inside Hawaii’s prisons and jails.

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
Hawaii State Supreme Court Associate Justice Sabrina McKenna and Associate Justice Michael Wilson are among the justices considering a request by the Office of the Public Defender that an expedited release process be reinstated for low-risk inmates during the pandemic. Cory Lum/Civil Beat

The Supreme Court last year issued two orders that cleared the way for release of hundreds of inmates who were being held for non-violent crimes, but in April the justices discontinued that effort as Covid-19 case counts declined inside and outside the correctional system.

A new filing by the Public Defender’s Office last month argued that with new outbreaks raging within the correctional facilities, “the necessity for this Court to once again intervene is urgent.”

Deputy Public Defender Jon Ikenaga on Wednesday described the new situation as a “public health emergency,” and warned that infections inside the corrections system will affect the larger community as staff and inmates become sick, further straining Hawaii’s health care systems.

The public defender’s case relies in part on a decision by U.S. District Court Judge Jill Otake that concluded corrections officials have failed to follow their own Pandemic Response Plan.

Otake also concluded the class-action lawsuit accusing the state of violating the inmates’ constitutional rights during the pandemic will likely succeed at trial. That class action civil lawsuit was later settled, with the two sides agreeing to name a five-member panel to assess efforts by the correctional system to cope with the pandemic.

But Deputy Attorney General Craig Iha, who represented the Department of Public Safety, told the state Supreme Court on Wednesday that the department “continues to follow its response plan” during the pandemic, and said there have been no violations of inmates’ constitutional rights.

Associate Justice Sabrina McKenna interrupted at that point to ask Iha for statistics on inmate test results and deaths. She then inquired: “Would the state concede that dying of Covid in prison is cruel punishment?”

Iha replied: “The state would not, your honor.”

Iha argued the threat to the inmates from Covid-19 is not the same today as it was when the court ruled in favor of expedited inmate releases more than a year ago because safe and effective vaccines are now available to the prisoners.

“Given that, there really is no reason for this court to order blanket releases when the most effective way to control Covid … is entirely within the control of the inmates themselves,” Iha told the court.

The vaccination rates among Hawaii inmates range from 49% at Oahu Community Correctional Center to 92% at Halawa Correctional Facility, which is the state’s largest prison.

Honolulu Prosecuting Attorney Steve Alm told the court that his administration cares about the health of the inmates, but also cares about the larger community.

Alm acknowledged there were more than 100 inmate Covid-19 infections at OCCC earlier this month, but that number dropped to 16 as of Wednesday as prisoners have recovered. He argued that vaccinating inmates is the best approach to reducing the risk to the prisoners.

Halawa Prison inmate sleeps in their cell in their module. 2015 file photograph.
Corrections officials and prosecutors contend the best way to cope with the pandemic is to vaccinate the inmates. About 92% of the prisoners at Halawa Correctional Facility have been vaccinated. Cory Lum/Civil Beat

Several of the justices also questioned Iha about a request from the public defender’s office asking the court to order public safety officials to conduct reviews of pretrial inmates every 90 days to determine if the prisoners qualify for release.

Under a law passed by the Legislature in 2019, those reviews are required for each pretrial inmate every three months, and the department is required to submit reports on its findings to the courts, the prosecutors and the defense lawyers.

Corrections officials have said they update pretrial bail reports when they learn of new information that might make the prisoners eligible for release — such as obtaining a place to live or being accepted into a drug treatment program — which qualifies as compliance with the law.

But Associate Justice Michael Wilson said that does not meet the department’s duty under the new law. “The reports are not being prepared, they are supposed to be reported every 90 days,” but the public defender and the courts are not receiving them, Wilson said.

Chief Justice Mark Recktenwald returned to that issue later in the hearing to agree with Wilson that the law apparently requires corrections officials to produce a report on each pretrial inmate every 90 days.

Recktenwald asked if Iha would oppose being ordered by the court to do so, and Iha replied the department now intends to begin submitting a report for each pretrial inmate every 90 days.

Iha later added that a court order will not be necessary because “that process is already in the works.”

Associate Justice Todd Eddins replied sharply that “it’s only in the works because the defense filed a writ to get you to do it.”

The court took the requests by the public defender under advisement, and it is unclear when it might issue a decision.

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