Editor’s note: The Civil Beat Editorial Board and reporters spoke with Hawaii Supreme Court Chief Justice Mark Recktenwald Thursday. Here are a few highlights from our interview, which has been edited for length and clarity. Some material will also be used for related news stories. The chief justice began by discussing the pandemic’s impact on the state judiciary.

Mark Recktenwald: Covid has been top of mind for everybody in our community for the last 18 months and really, our judges, our staff have done an amazing job of adapting to functioning in a pandemic and in keeping the courts operating. In the early days, we didn’t know what we were dealing with. It was completely unknown back in March (2020). What we were fighting, what the battle was, what the best strategies were, but we figured it out pretty quickly.

A big piece of it was to try to minimize the number of folks who came together in our courthouses. And that’s a big deal because what we do often involves bringing people together in one place. So we started developing the potential to be able to hold hearings remotely. And that’s been a huge transformation. I think since August of last year, we’ve had 330,000 hearings on remote platforms. That’s a huge change.

It has some real benefits — (it) makes us more accessible and transparent. It has concerns, too, because not everybody has access to that technology. And we want to make sure that the technology or appearing on a remote platform doesn’t somehow affect the outcome of cases because some people, for whatever reason, can’t present their side of the story as effectively online.

But the overall point is that we were able to adapt.

We had to stand down jury trials while we basically worked hard to understand what the state of the art was in terms of how one does a jury trial under these conditions.

We looked at what other states were doing. We looked at what the federal courts were doing. We worked closely with the Department of Health and basically came up with a plan for how to restart jury trials in a way that would ensure that folks were safe when they came together in our courthouses.

And we were going to do that at the end of last summer, but we had a significant surge in cases. So we paused until November and December. But then we were able to restart jury trials, which is a huge development really, fundamental to our system of justice, and continue them up until the most recent surge in August when we paused again. But we just restarted this week.

And now to me the question is taking the lessons we learned and making ourselves a better, stronger organization going forward and figuring out what to incorporate and who we are going forward on a long-term basis so we can be more effective, more responsive, more transparent.

Do you have a sense of what the latest numbers are for the Judiciary in terms of vaccinations? As you know, there’s been resistance in a number of quarters, including at governmental levels. 

We were at about 92%, which is, I think, really good. And I appreciate everyone coming together to enable us to get that level of vaccination here within the Judiciary. We’ve also recently adopted a policy that lawyers coming into our courthouses will have to be vaccinated or test, and that’s something the federal courts did.

So we’re constantly sort of looking at what’s out there and how we can minimize those risks while being careful not to unduly restrict the rights of folks who need to be and have a right to be in our courthouses, or who as employees have collective bargaining rights or other interests that we need to recognize.

How’s the backlog for cases? Obviously, with the postponement of jury trials I would imagine that the backlog has increased for you.

It’s very interesting. It clearly was increasing during the summer of and into the fall of 2020. And I think what happened once you were able to restart jury trials — I think we restarted in the neighbor islands in November of 2020, and then on Oahu in December. Once jury trials were happening and once we were able to have folks be able to get into court remotely — if that was the safest or most appropriate for a particular hearing — I think what we found is that both on the civil side and on the criminal side, cases began to resolve.

I think the Judicial Selection Commission has been really focused on the issue of diversity and in the folks that they recommend.

And so my sense is that while we were up and running with jury trials throughout most of 2021, a lot of those numbers came down and there might be places around, in particular circuit courts, in particular types of cases where the numbers are a little bit higher than they were before, generally speaking, because we’re doing trials and because we’re able to hear cases, I think that’s the impetus for people to look for negotiated resolutions, whether on the criminal side or the civil side.

What’s the status on judicial vacancies? And if I remember correctly, it’s the governor who appoints the Supreme Court, the Intermediate Court of Appeals, and the Circuit Court.

That’s correct. And then I appoint for our district court and district family courts. So right now we have about nine vacancies.

The Judicial Selection Commission is working to identify candidates. They’ve worked hard. We’ve got a lot of folks who’ve retired, and they’ve been doing a pretty steady job of filling those positions, recommending lists and they have more to do.

The judicial selection commission process has been criticized in some quarters for lack of gender diversity and ethnic diversity. But there have been some concerns about the process and whether it’s getting enough of a diverse pool. And then of course, you saw what happened with Dan Gluck for the ICA and the Senate — which is not your area, but they were looking for more diversity. I wonder if you might comment on that.

I think the commission has been really focused on the issue of diversity and in the folks that they recommend. In some areas of the state, especially on the neighbor islands, often there aren’t that many folks who apply. And there are times when the commission actually has to reopen solicitations for positions to try to get more applicants so that they have the minimum number required to forward to the governor (or) to me.

I know they’ve reached out. I know they’ve held meetings with folks in the community to discuss the process. I’ve done the same thing. I think there’s a real commitment both in the commission and certainly here at the Judiciary and on my part to have candidates for judicial positions that reflect the diversity of our community and who are excellent candidates.

One effort that is underway right now is a task force created by the Legislature. It’s chaired by retired Chief (ICA) Judge Craig Nakamura that’s been looking at the judicial selection process and I think is about ready to make recommendations. It has been engaging with the commission. So I think that’s a very, very healthy thing.

The process isn’t perfect. There are ways to improve it. We should be constantly looking for ways to improve it. But I think fundamentally the premise of a merit-based process is a correct one. I think it’s been proven out over the decades here in Hawaii since it went into effect back in the late ’70s.

There’s been a lot of discussion and some documentation of certain ethnic groups being disproportionately represented in the system, incarcerated, that sort of thing. Does the Judiciary have an idea of why this is? Have you looked at it to gain an understanding of what’s going on?

I think it’s an incredibly important question and one that we’ve really looked at in a lot of different ways. So the most immediate that I can think of is, in the wake of the George Floyd case and other cases last summer, our Committee on Equality and Access to the Courts convened a series of public forums on issues around racial justice and equity that included a really wide range of topics, including diversity in the profession and on the bench — implicit bias (in our) civil legal system, in our criminal system — and we got some very, very good ideas, I think, some of which we’d heard before, some of which I think were new perspectives and that group is continuing to look at those recommendations.

But I’d say we’ve looked at these issues and worked on them in a lot of different ways in our efforts at criminal justice reform, pretrial reform. We had a major task force that was created under now District Magistrate Judge Rom Trader’s leadership back — I think around 2017 or 2018 — it resulted in the creation of a major pretrial reform bill. It also resulted in the creation of our Criminal Justice Research Institute.

The idea is to have an institution here in the Judiciary that reviews data not just from the Judiciary, but across the other members of the criminal justice system to analyze trends and understand how the system is working, and how it can be made to work better. I know issues around racial equity are some of the issues that that group is looking at. It’s led by a Ph.D., criminologist Erin Harbinson. We’ve been filling out the staff and I think they’re off to a really good start.

So I think the answer is there are a lot of different ways in which we’ve looked at this issue. A lot of ways we’ve worked on it over the years. A lot that we’ve done in the last year (is) to hear the voices that are in our community talking about this issue and advocating for change. And we still have a long way to go. I don’t doubt that, and that’s something that we’re committed to doing.

Do they have initial findings yet or is there more information we can get for sure?

We had more than 400 people online for the first (community forum). A lot of folks participated and told me, there was a real sense of urgency, a real sense that something needed to be done, that we needed to work harder, and so that’s why we convened it, frankly, the committee — and I really thank (Associate) Justice Sabrina McKenna, (First Circuit) Judge Rebecca Copeland, who were the co-chairs, and the other folks who supported that effort to start listening more carefully to these voices that were being raised. And now I think the challenge is to come forward with where are we going to go from here? What recommendations and what areas are we going to look at?

One area where we worked hard is to get interpreters in the Hawaiian language.

Again, in the area of criminal justice reform, it’s been an ongoing process for us. We did a reform effort — maybe around 2012 — we did the pretrial reform effort. We’ve done efforts around mental health and diverting folks who are nonviolent offenders who are charged with petty misdemeanor and misdemeanor offenses out of the jail system and into treatment. I think each of those things has had some impact in reducing the number of folks who are incarcerated who don’t pose a danger to the community. And I hope that ultimately they would also play a role in reducing the disparities that you’re talking about.

The courts have a number of translators in a number of languages, but my understanding is that there has been a struggle to find more language translators, particularly Chuukese and Marshallese. Is that still a struggle, to get enough translators?

I mentioned earlier this rating of being ranked sixth for access to justice — we were very well rated in language access, which is one of the components of that rating. I think we’re viewed nationally as a very progressive and proactive jurisdiction. Debi Tulang-De Silva, who heads the Office on Equality and Access to the Court and her staff, worked very hard to reach out into the community, encourage people to become interpreters. We run training for folks because they’re sort of basic, ethical and sort of logistical rules, I guess, for lack of a better word that people need to know to be able to translate in court. They have to know that you need to translate exactly what is said. You can’t give advice to people. You’re there to simply serve as a conduit for what they say and what’s said to them. So we have a two-day training program that basically enables some folks to at least come up to that level of understanding of what’s required. And then beyond that we have the ability for folks to get certified at levels of competency in each of their languages.

So I guess the answer would be it’s a challenge. We work constantly to try to encourage people to reach out to those communities. One area where we worked hard is to get interpreters in the Hawaiian language and back in — I think it was 2019 — we developed or we implemented a policy in response to a case that happened on Maui, where basically we went from saying it was a matter of discretion for a court to decide whether to appoint a Hawaiian-language interpreter to saying we will appoint a Hawaiian-language interpreter unless there’s a really a good reason why not or why we can’t. And so after that, Debi and her team went out and engaged with Hawaiian-language communities across the state to get people to come in, to be able to undergo that training and to be available to serve in our courts.

So it’s a constant effort to get folks who want to do this kind of work — it is not easy. That’s the other thing I should mention — you’re in the middle of sometimes very emotionally charged situations. You might not be able to hear exactly what’s going on. The person might not be talking in a manner that you can really interpret as well as you’d like. So you need people who are willing to step into that forum and do it. But we try hard to identify them and get them into our courtrooms because, frankly, if folks can’t understand what’s being said, it’s not meaningful access to justice.

The Hawaii Correctional Systems Oversight Commission was debating this morning the planning process for the new (Oahu jail). The Judiciary invested a lot of effort to alternatives to incarceration proposals, as well as bail reform. I’m not seeing over the last maybe half dozen years a lot of movement in that area. As chief justice, are you frustrated with that, given the effort that’s been put into coming up with these proposals and whether you’d like to see the Legislature move?

We often call them treatment courts or courts that are identified as sort of working with specific categories of defendants, whether it’s drug court, mental health court, a community outreach court which works with folks who have relatively low-level misdemeanor offenses, many of whom are houseless, and veterans’ court, our treatment court. So I think each of these initiatives, they provide alternatives to incarceration and they provide very high levels of supervision. And, frankly, for folks who are mentally ill or who have substance abuse problems, it’s a long, hard process to get them to the point where they’re clean and sober. And so it takes resources. And I think the Legislature has been supportive of that.

But of course, we just went through really, really difficult budget times in the state. Our staffing has dropped — by my count I think it’s around 9% now from where we were back in 2019. You had some very significant budget reductions. Across the judiciary we have a lot of places where we have positions that are unfilled, just like everyone else, I think, in state government.

But I’m not discouraged at all. I think, and I think there are a lot of folks at the Legislature who would agree, that these alternatives to incarceration are finding ways to provide treatment, to provide guidance, provide support to move folks who are addicted to drugs or alcohol, or have mental health issues or other challenges — to move them in a direction where they won’t come back into court is the right way to go. So we’re constantly up there advocating, we’ve gotten good support for a number of those initiatives. But again, like everyone else, we don’t have as much staff as we’d like, and I hope that perhaps this session will be able to get a little of that funding back. But we realize it’s still tough times for our state.

There have been panels that talked about a variety of alternatives to incarceration rates and alternatives to bail or ways that the bail reform system could be changed. And I just haven’t seen a whole lot of action on those fronts. And I wonder whether that’s been a disappointment to you.

Well, bail reform, for sure. Coming out of just Judge (Rom) Trader’s task force, both of these were occurring at the same time they had 15 or 20 people. They spent the better part of a year really dug in deep. We got good recommendations on bail reform and that was implemented by the Legislature. And again, I hope I’m not getting my years wrong, but I believe in 2019, we still have bail and there are jurisdictions that in essence don’t have cash bail. But we have more alternatives to cash bail. And I think we have sort of more means of giving people opportunities to be released even if they don’t have money to pay bail. So they think that we’ve taken steps forward. I think we still have work to do in that area, but I think we made positive steps forward.

In terms of prisons, that’s kind of a long term discussion, right? I think that Justice (Michael) Wilson’s group was asking questions like, do we need another facility? If so, what would it look like? Could we be treating? Could we be having people do their sentences in a community context? And could this system be more rehabilitative? So I think those are really longer term discussions. I think it framed the conversation. I think you’re seeing that discussion playing out in the oversight commission, and I think you’ll see it playing out in conversations about whether we should have or need to build a new prison or not, and if so, what it should look like. And not to say that bail (reform) is an easy one, but I think we’ve made more immediate progress in the bail context.

I have a bit of a philosophical question. The prisons have consistently been the sites of some of the biggest Covid clusters. Is that going to be one of the tragic legacies of Covid? And is there anything that you think could have been done to prevent that.

It’s an area where I think there’s litigation pending, maybe not necessarily in the state courts, but I don’t want to comment I guess specifically on the policies. I think that clearly there’s been a federal case that resulted in a settlement, a class-action case. (It) raised a lot of these issues. And I think the resolution, which involves an advisory panel, I think is a positive one.

And without going outside the record of the cases that we had involving petitions by prisoners, we had to look at issues related to overcrowding and who should be in, could steps be taken to release folks who are nonviolent offenders to reduce the population of the prisons? And that was something that we took on in several different petitions — three in the last year and a half.

So that was certainly an area that came to our court. We had to make decisions about how to resolve these issues quickly. I think that was the thrust of what came to us. Was there guidance we could give or decisions we could make to try to resolve this issue of can some folks be released because they’re relatively low risk to reduce the population? And if so, how does one go about that?

So obviously my court got into that in these three petitions and very importantly, we appointed (former Judge) Dan Foley as master in the first of those petitions. And I think his role and the conversations he started among the parties, I think, have been critical — and really in the early days, I think everyone was just trying to understand what this thing was. What were the risks? What do we need to do?

And there were very strongly different views among other folks within the criminal justice system. And Judge Foley was able to start conversations between folks, bring them a little bit closer together during the course of the time he worked under the auspices of this court. I think that was a very positive thing. So there are a lot of different ways in which the issue has been addressed or folks have been looking at it. We had one part of it. Others I think could be looking at it as well.

Do you think that it may have pushed the needle in terms of maybe not holding lesser offenders for as long, or not putting them in jail?

That’s a very good question. I think we’re now back to the system that existed in the sense that the courts are adjudicating motions or requests to hold folks, what level of bail they’re held on and whether they’re going to get bail, whether they’re going to be released on their own recognizance — they’re back to adjudicating those on an individual basis. Certainly there’s been a lot of conversation, a lot of focus on the issue of who might be dangerous and who is less so.

But there already had been a lot of discussion about that. That’s something that, frankly, in our more significant cases, there are reports and that was part of our bail reform initiative, to get the (intake) reports that (the Department of) Public Safety creates, to get those reports to the judges sooner so they can make decisions sooner based on actual information about this particular defendant. So in one sense it’s certainly been top of mind over the last 18 months. But it also, I think, it already was something that every judge is trying to decide what the terms of release should be for a particular defendant.

Is that something the Criminal Justice Research Institute is looking into? I know earlier this year they came up with a narrow report, using the inmates released under court orders during the pandemic to see who can be released (and who) cannot. And I was wondering if the Judiciary is taking a broader look at that.

One sort of overarching priority that they have, I think, immediately, was to be able to integrate the information from each of the different agencies. And that was, the statute that created the institute sort of said, kind of job one is to be able to integrate data from the different participants in the criminal justice system, so we could actually have a better understanding of what the outcomes are. My understanding is their focus is to understand our system. Is it being effective, as effective as we need it to be? Is it protecting public safety as effectively as it could? So my understanding is that (is) among the issues that they’re looking at, but we’ll find out for sure and let you know.

Tell us briefly what you’re going to bring to the Legislature in terms of your budget request. It’s always a challenge. As you mentioned, funding, particularly with the revenue hit the state’s taken. But is there something, or two or three issues that are at the top of your list of funding requests for the judiciary’s budget for next session?

Our request that we’re going in with is very modest. We’re looking to restore some of the funding, particularly on the Big Island, that was reduced back in 2020. So what happened is in essence, positions that were vacant as of a certain time in the spring of 2020, the Legislature eliminated funding for those positions. That was the means by which they accomplished these absolutely essential budget reductions. And I guess you have to figure out, where are you going to cut?

One way to do that is to say, well, these are vacant positions, so let’s cut them on the Big Island. Two of those positions were judge positions or positions that we have filled. One, the judge had already been confirmed. The other was vacant. But we need that position. It’s a family court position. There are tons of cases.

So we’ve gone ahead and basically filled those positions, but have other positions that are vacant. Like probation officers, folks who are the ones who are supposed to be monitoring these people who are on probation, who are going to treatment courts, who are trying to keep out of prison, but also trying to keep clean and sober and on a lawful path. We’ve had to keep some of those positions vacant, so we’re going back in to ask to restore the funding for those two positions.

And then a lot of the building needs, but they’re really just keeping the buildings from leaking, keeping them secure and making sure we have working fire alarms, very basic stuff. I do hope that there will be perhaps opportunities to address issues around homelessness, around some of the treatment courts that we’ve talked about. I mean, there were very significant reductions made to service providers in some of these areas. And again, our staffing as well. So if there are opportunities to get a little more funding in those areas, we certainly would welcome it.

But I think everybody needs to see where we are three months from now. I mean, it’s been very volatile. We didn’t really know where we were on infrastructure funding until a week or so ago. So we’re kind of coming in with a very modest request and then see what happens from there.

We always talk about the political split of the U.S. Supreme Court currently 6-3, was 5-4. There’s some talk about where the political split is in your court, 3-2. How do you react to that question. Is there a political division on the high court here in Hawaii?

I’d say absolutely not, in my view, for a couple of reasons. We really work hard, we really listen to each other. Our opinions change. So even though there are a lot of times when some of us will dissect the opinions or the opinions evolve as a result of us going back and forth, they get narrow, they get refined. And so the product that comes out, in my view, represents some of the best ideas from both sides. And in any event, what’s out there is there for everyone to see, the public can see what we do. They can see our thought process. They can agree or disagree and it moves the discussion, the debate along. So, for our court, I feel like we respect each other.

Sometimes I’m surprised by folks’ points of view. And of course, the court is changing. Justice (Todd) Eddins joined the court. He’s done a great job. He’s really off to a strong start. He’s a great writer and he’s somebody who’s really focused on moving cases forward. Every time a new person comes on the court, we change and we evolve, and there will be two new people coming in 2023, I think, when Justice Wilson and Justice (Paula) Nakayama leave. I think our court is one that really takes its responsibilities seriously. Although we see things differently, we listen to each other and we try to come up with outcomes that I think reflect the best of both sides on a particular case.