The independent special master assigned to study overcrowding at state correctional facilities in the face of the coronavirus pandemic is recommending that each case needs to be considered individually on who should be released — angering critics who say the process will be too slow.

State Public Defender James Tabe, who wanted the Hawaii Supreme Court to compel state corrections officials to act quickly, said Special Master Daniel Foley’s recommendation doesn’t move fast enough to address the primary concern that the chronic overcrowding problem at the state’s eight overpopulated jails and prisons could trigger mass infections of COVID-19 among inmates, employees and their families.

Foley, a retired appellate judge and onetime civil liberties attorney, was appointed last week by the Hawaii Supreme Court to be the third-party master.

“It is my recommendation that the process of reconsidering, lowering, and monitoring the operational capacities of … Hawai‘i’s correctional centers and facilities (begins),” Foley wrote Thursday.

Tabe’s office late last month filed motions seeking to force the state to promptly release certain nonviolent inmates as a means of reducing their numbers. The office pointed out that limiting social contact between individuals is the key recommendation for stopping widespread infection.

The issue is one being debated in courts throughout the country as reports of widespread infection in correctional facilities have increased.

In a subsequent filing Tabe submitted a list of 426 inmates, all but a handful of them housed in the state’s four jails, that he believes should be considered for early release.

Attorney General Clare Connors and three of the four county prosecutors, in their filings, do not dispute overcrowding and have not raised objections to the concept of releasing inmates. But they have insisted that inmates’ cases be handled individually and that those released should be closely monitored.

Foley cited recommendations by a state-appointed oversight commission that called for certain inmates to be released to help reduce the possibility of the spread of COVID-19 within the state’s jails and prisons, as well as among Hawaii’s greater population.

“The parties should continue the effort to decrease inmate populations and lower the currently set operational capacities in light of COVID-19,” Foley wrote. He said he’s been told that “in some modules personal space appears downright impossible with over 160 individuals in 48 cells of two modules at MCCC, or 175 individuals in 54 cells at HCCC.”

Ultimately, “the trial courts have the discretion to determine if an inmate should be granted release, and also have the discretion to make decisions on release by non-hearing motions,” Foley said. “Prosecutors would still retain their right to object, and state the legal arguments and factual circumstances supporting their objections.”

Tabe said in a statement that Foley’s course of action doesn’t move quickly enough to address the urgent situation at the Oahu Community Correctional Center in Kalihi and will be time-consuming for all involved.

“Essentially, in Honolulu, we will be filing motions on everyone on the list since the prosecutor has objected to 123 of the 136 inmates on the felony list,” Tabe said. “And as for the 13 they did not object to, we need to also file motions because they will not negotiate on the conditions for release.”

Further, Tabe said, “if motions are required to be filed as suggested by the report, we cannot agree to non-hearing motions. The inmates and the attorneys need the opportunity to be heard and to address any concerns by the judges. Fortunately, for the neighbor islands jails, we are making progress.”

The American Civil Liberties Union of Hawaii, which had filed a brief supporting Tabe’s motions, also said the report lacks urgency.

“The report sets no deadlines, targets, or meaningful and streamlined process for addressing overcrowded conditions, which public health officials agree puts everyone’s health at risk,” said Mateo Caballero, the organization’s legal director.

“Most alarming, the report completely ignores people who are particularly vulnerable to contracting COVID-19, that is, the elderly, people with heart, lung, liver, and kidney conditions, people who are immuno-compromised, and people with diabetes, among others,” he said. “We hope the report is just a starting point and the Hawai‘i Supreme Court takes action and sets deadlines to address what will become a major humanitarian crisis before it is too late.”

In related news, state Public Safety Director Nolan Espinda said up to 100 inmates now under state incarceration will be transferred temporarily to the Federal Detention Center under an agreement with the Federal Bureau of Prisons.

Gov. David Ige made the request to the White House last week in an effort to ease overcrowding at state correctional facilities in the midst of the coronavirus outbreak.

Espinda told the state Senate Special Committee on COVID-19 that the transfers to the FDC, near Daniel K. Inouye International Airport, will begin Monday.

Through a contract, the state currently has 94 of its inmates in the FDC. But since March 13, intakes from the state have been suspended, Espinda said.

Details about who will be transferred have yet to be worked out, Espinda said later in a news release.

Several inmate advocates told the Honolulu Star- Advertiser that while they want inmate populations at state facilities reduced, they don’t believe temporary transfer to the FDC is a good idea.

DPS said it already has been working with the Judiciary and other stakeholders in reducing inmate population — short of releasing individuals. Its total jail population, as of Thursday, was 1,641 inmates, a decrease of 548 from its count on March 2.

Initial Summary Report and Initial Recommendations of the Special Master by Honolulu Star-Advertiser on Scribd