Gov. David Ige’s administration wants a law passed to shield the state from liability for actions it took or failed to take in connection with the pandemic, a proposal that is being blasted as “immoral” by a lawyer who represents Hawaii state prison and jail inmates.

Lawyers with the firm of attorney Eric Seitz sued the state in federal court last year for mishandling the pandemic and failing to protect inmates from Covid-19 infections, and Seitz said the push to now limit state liability is aimed at blocking the inmates’ legal claims.

Senate Bill 3047 originated in the state Attorney General’s Office, and would change state law to prevent the state from being held liable for “any claim arising out of an act or omission that caused or contributed to” a person becoming ill from Covid-19 or its variants.

That shield from liability would be retroactive to Jan. 1, 2020.

“Basically it says the state is not responsible even if it caused people in correctional settings to get Covid — which it did,” Seitz said. “The conduct of state officials was atrocious, and they are responsible for all of the inmates who came down with Covid, some of whom died.”

Oahu Community Correctional Center.
More that 1,100 inmates have tested positive for Covid-19 at Oahu Community Correctional Center since the start of the pandemic. A proposed new law would shield the state from liability for claims filed over any acts or omissions that caused coronavirus infections. Cory Lum/Civil Beat/2020

Gary Yamashiroya, special assistant to the attorney general, said in a written statement that the bill is intended to protect the state from more than inmate claims.

“Despite what Eric Seitz sees, this bill is not specific to inmates and is meant to protect the state from general claims regarding COVID response,” Yamashiroya said in the statement.

U.S. District Court Judge Jill Otake ruled last year that Hawaii’s prisons and jails had so badly botched the response to the pandemic that state officials displayed “objective deliberate indifference” to the risks posed by the coronavirus as the disease spread inside.

Corrections officials said they were trying to contain the virus in Hawaii’s crowded jails and prisons, pointing to the department’s Pandemic Response Plan. That plan calls for new admissions to be tested and quarantined and an array of other steps to try to prevent the spread of the disease.

But in a ruling based on statements from inmates and staff, Otake found the state didn’t follow its own plan. As just one example, she cited the practice of holding 40 to 60 inmates in a single room in the Hilo jail.

She declared that “policies are meaningless if they are not followed,” and ordered the state to comply with its own pandemic plan.

The state Department of Public Safety has reported nine inmate deaths that were related to Covid-19, and at least two other Hawaii prisoners who were held in a privately run Arizona prison also had the virus when they died.

According to the department, 37 inmates have been hospitalized with Covid-19 since the start of the pandemic, but the department says there have been no hospitalizations of prisoners so far in 2022.

The correctional system is again flooded with cases this year. As of Monday, 918 inmates at eight correctional facilities had active Covid-19 cases out of a total inmate population of nearly 4,100.

A total of 4,304 Hawaii prison and jail inmates have tested positive for the virus since the start of the pandemic two years ago, according to statistics posted by public safety officials on Monday.

Halawa Correctional Facility tour 2019.
Covid-19 has been blamed in the deaths of seven inmates at Halawa Correctional Facility since the start of the pandemic. The facility now has 227 active cases. Cory Lum/Civil Beat/2019

No corrections officers have died of the virus, but some officers have been hospitalized, according to a written statement from the department. The department does not have an accurate count of how many corrections workers were hospitalized because staff is not required to report medical treatments, including hospitalizations for Covid-19.

Seitz said his office has tried to negotiate with the AG’s office to establish an orderly claims process for inmates seeking compensation, but the state has so far declined to discuss that possibility.

Apparently the state’s strategy was instead to get the Legislature to declare retroactively that “all of the horrible things that we did are not compensable,” Seitz said. “I think that is simply immoral and outrageous — absolutely disgraceful.”

“We’ll start filing lawsuits as quickly as possible because we’re not going to wait for some bill that says the state’s not responsible,” Seitz said. He estimated the total number of cases may be close to 3,000.

Wookie Kim, legal director for the ACLU of Hawaii, said in a written statement the proposed bill “shows an unparalleled level of inhumanity.”

“From the pandemic’s get-go, family and friends of people incarcerated by DPS begged the state to help,” Kim said in the statement. “We heard constant cries for help from families and those incarcerated because DPS was following neither protocol nor policy — all to the extreme detriment of those incarcerated.”

Covid-19 spread rapidly in Hawaii’s packed correctional facilities, and “all three branches of government are responsible for the severe overcrowding in our jails and prisons, despite the proven alternatives that exist that would reduce the number of people inside, while also protecting community safety,” Kim said in the statement.

Although the bill appears to be aimed at deaths and illnesses in correctional facilities, Kim noted it would apply to Covid-19 claims in other situations as well.

He also opined the bill “does not appear legitimate or lawful” because it would be retroactive.

“Here, the State is unfairly yanking the rug out from underneath people who might otherwise have had valid claims against the State for the way it handled the pandemic,” he said in his statement.

Senate Judiciary Committee Chair Karl Rhoads said he needs to study the bill more carefully before making a final decision, but he is not inclined to even hold a hearing to consider it.

Rhoads said he expects that given the new, dire crisis created by the pandemic, courts would likely be inclined to hold the state or private entities liable for damages only if they did something “that was really blatantly disregarding what we knew to be safe practices.”

“I think the state should be in the same situation as the private sector is with regard to claims like this, and we need to follow the rules just like everybody else,” he said.

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