For years Hawaii has debated what to do about accused lawbreakers who sit in overcrowded jails — sometimes for many months or even years — because they cannot afford to post bail. Now an important piece of that messy, expensive issue has landed on the docket of the state Supreme Court.
In a lengthy filing late last month, state Public Defender James Tabe urged the court to enforce a 2019 law that mandates corrections officials review pretrial detainees every three months to reconsider whether those prisoners should remain in custody, or should be released.
The state Department of Public Safety says it already complies with that law, but a spokeswoman for the department said it does not track how many reviews have been done. The department declined to make any of the pretrial inmate reviews public, saying state law forbids it.
The 2019 law says the reviews must be forwarded to prosecutors, defense lawyers and the courts, but officials with the state Judiciary, the Kauai prosecutor’s office and Tabe all say they haven’t seen any filed with their offices.
Judiciary spokeswoman Jan Kagehiro said that “it appears we are not getting these reports.”
The issue is more important than merely missing or neglected paperwork because the reviews are supposed to help reduce the pretrial inmate populations, which could be a huge help during the pandemic.
Crowded conditions in Hawaii jails have been blamed in large part for the spread of Covid-19 in correctional facilities, and the system is now coping with a new wave of coronavirus infections.
There were 190 prisoners infected with the virus in five state prisons or jails as of Monday, with the Oahu Community Correctional Center reporting Monday that 110 inmates had just tested positive there. OCCC is the state’s largest jail.
In all, more than 2,800 inmates have been infected since the start of the pandemic, and Covid-19 has been blamed for the deaths of at least nine prisoners. More than 600 Hawaii prisoners were infected in the last six weeks.
The state Supreme Court issued two orders last year that expedited the release of low-risk inmates to try to slow or prevent the spread of Covid-19, but those orders expired last April.
With the delta variant now sweeping through state correctional facilities, Hawaii Public Defender James Tabe last month again asked the Supreme Court to intervene to reduce the populations of Hawaii’s jails by ordering the release of low-risk inmates.
As part of that larger filing, Tabe also asked the court to order the Department of Public Safety to follow the 2019 law by carrying out the periodic reviews of pretrial inmates as part of the larger push to reduce Hawaii’s inmate population to control the spread of the virus.
That court dispute is the latest chapter in a long-running debate over how to manage the population of inmates who have been arrested and jailed, but have not yet been convicted of a crime.
State lawmakers in 2017 convened a high-powered task force that spent more than a year studying the mechanics of Hawaii’s pretrial system, parsing how and why the system releases some arrestees, but requires others to sit in jail cells until the courts finally resolve their cases.
Some of the task force proposals were scrapped by lawmakers the following year, but one noteworthy idea passed: The Legislature ordered corrections officials to review the status of every jailed pretrial inmate every three months to see if they should remain locked up, or should be released.
That new law, which is part of Act 179, went into effect Jan. 1, 2020. It also requires the state Department of Public Safety to forward the findings from those pretrial inmate status reviews to the courts, prosecutors and defense lawyers involved.
But Tabe and Kauai County Prosecutor Justin Kollar said neither of their offices have been receiving pretrial detainee reviews that comply with the 2019 law.
“We’ve never seen any periodic reviews (suggesting) ‘Oh, by the way, this person should get released,’ or that the circumstances have changed,” Tabe said. “We’re not aware of any.”
Tabe said he also inquired statewide with his staff, and “none of my attorneys have been notified that their clients were recommended for release pursuant” to the new law.
Kollar said it appears the state “has been out of compliance (with the law) for a very long time.”
When asked if he had ever seen one of the required reviews, Kollar replied that “I’ve never seen one, I surveyed my staff … and none of them have ever seen one before.”
Kollar said the reports would be important because pretrial detainees have not been convicted yet, so the state should only lock them up if that is necessary to protect public safety.
“So, periodic reviews are in everyone’s best interest. It’s in the community’s best interest, it’s in the facility’s best interest, and it’s certainly in our best interest to have all of that information,” he said.
When pretrial prisoners can be safely placed in the community, there is also a potential savings for taxpayers, Kollar said. The Department of Public Safety reports that it cost an average of $219 per day to hold an inmate in the Hawaii system last year.
Matt Dvonch, special counsel to Honolulu Prosecuting Attorney Steve Alm, said in a written statement that the Department of Public Safety’s Intake Service Center does reassess pretrial inmates when a detainee’s status changes.
For example, that might happen when a defense lawyer files a motion for supervised release, or a detainee is referred to a community-based treatment program, he said.
In those cases, “that reassessment is sent to the appropriate court, the prosecutor, and defense counsel. We are not aware that these reassessments happen as a matter of course when a detainee’s status has not changed.”
The Public Safety department, meanwhile, said the Intake Service Centers send information that may prompt the release of a pretrial inmate to the courts and lawyers in the form of a pretrial bail report.
“All cases are reviewed on an as needed basis and/or whenever new information is received, including changes to the detainee’s status,” Public Safety spokeswoman Toni Schwartz said in a written statement. “If there is no status change, no review is necessary as the detainee’s situation remains unchanged.”
“The reports are consistently completed and updated, and electronically filed with the Judiciary. The Judiciary’s electronic filing system routinely sends an email to all involved parties when a new document is filed,” Schwartz wrote.
“When there is a change in the offender’s circumstance and/or status that warrants a review, an updated pretrial bail report is completed and forwarded to the court and other parties,” she wrote.
Schwartz said the pretrial bail reports are confidential by law, and cannot be made public.
But Tabe said those pretrial bail reports are generally produced shortly after a person is arrested. They are generally updated when defense counsel is able to assist inmates by — for example — identifying acceptable living arrangements or treatment programs for prisoners.
Tabe’s office then files a request with the court that those prisoners be released, he said.
But Tabe said updating bail reports after the defense has filed a request that an inmate be released doesn’t match the new law’s description of what the department is supposed to do.
“I don’t think it qualifies as complying,” Tabe said of the updated bail reports. “A bail report as a result of a motion by us doesn’t qualify as compliance with that statute.”
Tabe asked the state Supreme Court on Aug. 27 to order the department to perform the reviews, but it is unclear when the court may rule on the request.
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