Former state Intermediate Court of Appeals Judge Daniel R. Foley on Thursday was appointed by the Hawaii Supreme Court to serve as the special master tasked with sifting through the complex issue of releasing jailed inmates amid concerns about the spread of the coronavirus outbreak.
The court made the appointment as both sides of the issue stepped up their arguments about who should be released and under what terms in response to the Office of the Public Defender’s request to ease prison overcrowding expediently to try to lower the potential for a widespread outbreak among inmates and corrections employees.
Foley’s job will be to work with the parties “in a collaborative and expeditious manner” to address two petitions requested by the public defender’s office seeking the release of up to 426 inmates now housed in the state’s jails, according to the order signed by all five High Court justices.
“The COVID-19 pandemic has caused a public health emergency that is impacting Hawai‘i’s community correctional centers and facilities,” the order said. “Responding to these petitions requires a careful consideration of interests, both for public health and public safety.”
Foley will listen to the arguments being made by public defenders and state prosecutors and then make recommendations on who could be released and under what conditions. The state Supreme Court would make the final decisions.
Foley, who served on the intermediate court from 2000 to 2016, is to submit an initial summary report by Thursday but also may submit reports along the way. He chaired the Hawaii Access to Justice Commission and co-chaired the Hawaii Appellate Review Task Force and Committee on Equality and Access to the Courts.
Foley is not a stranger to the state’s prison conditions. He was the attorney for the American Civil Liberties Union Hawaii chapter in 1984 when it sued the state over “harmful and intolerable” conditions at the Oahu Community Correctional Center in Kalihi. The following year, the state agreed to enter a consent decree requiring the establishment of inmate population limits and make other reforms.
Whether to release inmates amid the coronavirus crisis is a debate taking place across the country, heightened by reports in recent days of extensive spread in some of the country’s largest jails and prisons.
No confirmed cases had been reported in Hawaii’s correctional facilities as of Thursday. But the Department of Public Safety said that one OCCC inmate, prior to being in DPS custody, had been administered a COVID-19 test before entry into a hospital on Wednesday. The results are pending, and while the individual is not exhibiting clinical symptoms, OCCC followed procedures and placed him in medical isolation “out of an abundance of caution until outside test results are obtained,” the department said.
Inmate advocates warn it might just be a matter of time. Hawaii jails are frequently so full that three inmates are quartered in the same cell or sleep on mattresses on the floors of recreation areas. Corrections officers and other employees who enter and leave the jails each day are also at risk for becoming infected and then spreading the virus, advocates warn.
Public Defender James Tabe said it’s critical for the process to move quickly as the state tries to tackle the unprecedented situation caused by the pandemic. An outbreak at one of the facilities could have devastating consequences for inmates as well as corrections officers and other employees. That scenario has played out at several U.S. mainland facilities where confirmed cases rose exponentially in a matter of days after an initial case was confirmed, he noted.
“It’s going to tax our limited resources and the community health care providers on the outside, whether it’s on Oahu or on the neighbor islands,” Tabe said.
But Attorney General Clare E. Connors and three of the four county prosecutors have raised strong reservations about a mass release, arguing that they want to be able to review inmates case by case before deciding whether to release them.
Honolulu Acting Prosecutor Dwight Nadamoto said he’s pleased that the court order specifically prohibits a mass release and to instead consider each inmate’s situation case by case.
The 426 inmates the public defenders initially put up for possible release don’t constitute everyone they want released, Nadamoto said. Individually, deputy public defenders have been arguing for the expedited release of pre-trial defendants who are considered dangerous, requests that his office has opposed, he said.
One man is awaiting trial after being charged with raping an elderly woman at a campground on Hawaii island, Nadamoto said.
Supporting Tabe’s action are the American Civil Liberties Union, the Hawaii Correctional Systems Oversight Commission and the Hawaii-based Community Alliance on Prisons.
Mayor Kirk Caldwell, Honolulu Police Chief Susan Ballard, the Honolulu City Council and Mothers Against Drunk Driving support the position of Connors and the prosecutors that there should be a more measured approach.