The Hawaii correctional system should not resume the release of low-risk inmates to slow the spread of Covid-19 in prisons and jails because all prisoners now have access to vaccines, according to a new court filing by Honolulu Prosecuting Attorney Steve Alm.

In a legal brief filed Tuesday with the state Supreme Court, Alm also said he expects the state Department of Public Safety will follow its Pandemic Response Plan now that the department is subject to federal court oversight.

State Public Defender James Tabe last week asked the Hawaii Supreme Court to once again take steps to reduce Hawaii prison and jail populations in an effort to reduce crowding and limit the spread of Covid-19 within the facilities.

Last year the court issued two orders that hastened the release of inmates who were deemed to be low-risk offenders, and Tabe is arguing the Covid-19 delta variant is a “game-changer” that justifies a third intervention by the court.

But Alm contends that “a release of inmates will senselessly exacerbate the considerable anxiety the community is experiencing and offend the notion of shared sacrifices and burdens the entire state must all carry during this pandemic.”

Womens Community Correctional Center Hawaii prison razor wire barriers.
Honolulu Prosecuting Attorney Steve Alm and state Attorney General Clare Connors filed briefs with the Hawaii Supreme Court on Tuesday opposing further release of inmates to reduce the spread of Covid-19 in Hawaii’s prisons and jails. Cory Lum/Civil Beat

“Given the availability of vaccines to all inmates, any inmate who chooses not to get vaccinated should not be released pursuant to Petitioner’s requests,” Alm wrote of Tabe’s filing. “Such an outcome will have a perversely negative impact on public safety.”

Corrections officials report 430 inmates were released under a Supreme Court order that extended from August 2020 to April 2021, and a spokeswoman for the state Judiciary reported another 100 more inmates were released under a similar, earlier order.

But both Alm and lawyers for DPS are opposing further early releases to prevent the spread of the coronavirus, pointing out that large numbers of inmates have already been vaccinated.

If the court again orders expedited releases, lawyers for the state Attorney General’s Office said the  inmates who are let out must be vaccinated unless they have a valid exemption, must have a safe place to live, and should be evaluated for the risk they pose to the community.

They also should be monitored after they are released to ensure they do not commit further crimes, according to the AG’s filing on behalf of the state corrections system.

“Prior to any releases, the Court must consider the adverse impact each release would have on public safety – not only to victims, victim’s family members, witnesses and the community, but also the hospitals and community health systems, as well as emergency and social services that are over-stressed by COVID-19,” according to the filing.

Hawaii now holds a total of more than 4,000 inmates in prisons and jails in Hawaii and Arizona, and more than 2,700 Hawaii inmates have been infected during the pandemic. The system is now coping with 136 active cases of Covid-19, most of which are in the Oahu Community Correctional Center.

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.

U.S. District Court Judge Jill Otake ruled in a separate case on July 13 that the state failed to follow its own Pandemic Response Plan, and issued a preliminary injunction ordering the correctional system to follow the response plan.

Otake also declared Hawaii prisons and jails responded so poorly to the spread of Covid-19 that corrections officials demonstrated “objective deliberate indifference” to the threat the disease posed to the inmates.

Lawyers in that case last week tentatively agreed to a settlement that calls for a five-member panel to oversee the response to Covid-19 in Hawaii’s prisons and jails.

Alm argued Tuesday that “the availability of vaccines has altered the landscape” in the past year because the inmates can now protect themselves from the virus by agreeing to be vaccinated.

But the American Civil Liberties Union of Hawaii is arguing in a proposed friend-of-the-court brief filed Tuesday that Tabe’s request for additional expedited releases should be granted.

The ACLU contends the corrections system is violating the inmates’ rights to due process and subjecting them to what amounts to “cruel and unusual punishment.”

Lawyers for the ACLU also argued the previous orders by the Supreme Court during the past year “demonstrate that releasing people has not undermined public safety.”

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