Weeks after a federal court judge hammered the state for mishandling the threat posed by Covid-19, corrections officials have agreed to allow a panel of experts to inspect Hawaii’s prisons and jails to assess their efforts to prevent the spread of the coronavirus inside.

Under a proposed settlement filed in federal court on Friday, a five-member panel will be appointed to interview staff and inmates, and make recommendations or raise concerns about the pandemic response.

The panel will include Dr. Homer Venters, an epidemiologist and former chief medical officer of the New York City Correctional Health Services, said Eric Seitz, whose law firm filed the class-action lawsuit.

Venters has inspected dozens of correctional facilities across the country during the pandemic to gauge their responses to Covid-19, and has overseen similar agreements in other states including Connecticut and California, Seitz said.

It will also include former Hawaii prison Medical Director Dr. Kim Thorburn, who has years of experience with health care in the Hawaii prison system as the state’s corrections medical director from 1987 to 1996, Seitz said.

Oahu Community Correctional Center guard tower near Puuhale Street. January 6, 2021
More than 500 prison and jail inmates have tested positive for Covid-19 since a federal court judge on July 13 ordered the state to follow its own Pandemic Response Plan. The Oahu Community Correctional Center is currently holding 78 of the prisoners who have active infections. Cory Lum/Civil Beat/2021

The current Department of Public Safety Corrections Health Care Administrator Gavin Takenaka will also be part of the panel, along with Public Safety Deputy Director for Corrections Tommy Johnson and retired Associate Intermediate Court of Appeals Judge Daniel Foley.

“What this does is it accomplishes what we set out to do, which is to get medical experts into the prisons to monitor what they’re doing, and hopefully to give them assistance and advice about what to do better,” said Seitz.

U.S. District Court Judge Jill Otake issued a scathing decision on July 13 that found the state failed to follow its own Pandemic Response Plan. She declared the response to the spread of Covid-19 so poorly executed that corrections officials demonstrated “objective deliberate indifference” to the threat it posed to the inmates.

Otake issued a preliminary injunction ordering the correctional system to follow its own pandemic response plan, and also declared in her ruling that the class-action lawsuit accusing the state of violating the inmates’ constitutional rights during the pandemic will likely succeed at trial.

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. That includes more than 500 who have tested positive since Otake’s ruling.

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.

Under the proposed settlement filed with the court Friday, corrections officials will make “best efforts” to actually implement the department’s Pandemic Response Plan “based on the individual facilities’ physical space, staffing, population, operations, and other resources and conditions.”

The five-member Agreement Monitoring Panel will be advisory only, and will provide guidance and recommendations to the department on quarantining, sanitation, social distancing, testing, contact tracing and vaccination.

“Really, what I wanted to do was get experts in there who could tell us what’s going on.” — Attorney Eric Seitz

DPS spokeswoman Toni Schwartz said in a written statement Friday that the department “will work closely with the advisory panel. The department will do everything within its ability and control to follow through with the guidance and recommendations the panel makes towards improving current procedures and coping with the COVID-19 situation in our jails and prisons.”

The panel must give 72 hours notice before the members visit a correctional facility, and under the agreement will be provided full access to staff and inmates. The monthly reports that will be  produced by the panel are to be kept confidential, according to the settlement.

“The AMP will provide insight into and accountability for DPS’s COVID-19 response and will also benefit DPS by providing expert guidance as DPS navigates this challenging public health crisis,” according to the proposed settlement.

The correctional system will submit weekly reports to the panel that will include testing results, the number of inmates who are hospitalized with Covid-19, and the number of inmates who die from the virus.

The agreement requires that inmates be allowed to shower daily, and must be issued at least two face masks. Staff will be required to wear masks “where necessary” within the facilities.

The work of the panel is scheduled to last until Jan. 31, but can be extended to the end of March if a majority of the panel agrees, according the settlement.

Seitz described the settlement as “potentially a very successful step forward.”

He said the panel will “gather information other than what the department is officially putting out,” and include that information in its reports.

“Really, what I wanted to do was get experts in there who could tell us what’s going on,” he said. Although the panel has no authority to force the prison system to make changes, Seitz said his office will use the reports it provides as needed.

The settlement prohibits Seitz from filing a motion alleging contempt of court for violating the agreement or the pandemic protocols, but it does allow lawyers in the case to ask the court to step in to require remedies for problems within the facilities.

“We have the option any time that there are recommendations or things that need to be done, to go back to the magistrate or to go to a further dispute process to enforce whatever the panel finds,” he said.

If necessary, that could be done by seeking another injunction, or even by filing another lawsuit, Seitz said. The settlement calls for the panel to be up and running within two weeks.

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