An order issued late Friday by the Hawaii Supreme Court suggests that justices are unhappy with how lower court judges, prosecutors and the state Department of Public Safety have been carrying out the high court’s edict to release more inmates quickly in the face of the coronavirus pandemic.
The high court also said Public Safety must ensure all inmates under its authority be issued protective masks. There’s no timetable for providing the equipment, but the court’s language suggests it should be done quickly.
Public Defender James Tabe last month sued the state seeking the expedited early release of hundreds of nonviolent inmates, arguing that Hawaii’s historically overcrowded jails and prisons are not able to meet Centers for Disease Control guidelines for avoiding being infected with COVID-19. While no positive cases have been reported at any of the facilities, inmate advocates warn it’s only a matter of time and point to situations that have exploded on the U.S. mainland.
The high court last week mandated that the Department of the Attorney General, the Office of the Public Defender, the Hawaii Paroling Authority and county prosecutors work to release as many nonviolent offenders from Hawaii’s eight jails and prisons as quickly as possible, but required that requests for inmate releases be taken up by judges on a case-by-case basis.
A filing by the Office of Public Defender on Thursday states that 528 motions have been filed on behalf of inmates that were on a list provided by Public Safety deemed eligible for release based on the criteria established by the justices. Of those, 208 are probation violators, 205 are pretrial felons, 132 are there as part of their felony probation sentence, 21 because of sentenced misdemeanors and 17 for pretrial misdemeanors.
Statistics are not available on how many of the requests have been approved or denied.
But the justices, in Friday’s order, reiterated their earlier mandate that the onus is on prosecutors to convince judges that someone eligible for release should not be released based on risk to the individual or the public, and only on those grounds.
A brief filed by Deputy Public Defender Jacquelyn Esser on Thursday said, “We are seeing some individual judges not following the Supreme Court’s Order that ‘release shall be presumed’ and denying motions even when a prosecutor filed a notice of no objection, and there is no finding of significant risk of danger to the individual or the public.”
Esser pointed out that Judge Edwin Nacino was requiring that all those seeking early release provide a “declaration of verified residence.”
As a result, prosecutors were citing the lack of a verified residence as a reason to reject a release, she said.
Esser said the requirement “has unreasonably and unnecessarily resulted in the delay of many releases.”
The high court’s Friday order agreed with Esser and said an inmate “should not be required in every case” to provide officials with a verified residence, although it is up to the judges hearing the requests to decide if a verified address is necessary on a case-by-case basis.
The justices also declared that while Public Safety is supposed to provide inmates with copies of the conditions and continuing obligations once they are released, they should not be required to sign such documents as a condition of being released.
On the issue of masks for inmates, the Supreme Court order said, “To the extent it has not done so already, DPS shall provide protective masks to each inmate as soon as possible. Inmates in custody must wear protective masks when transported outside a correctional center or facility.”
Public Safety officials said they have been in the process of providing masks to corrections officers and inmates.
Inmates in sewing programs at the Waiawa Correctional Facility, Kulani Correctional Facility and Hawaii Community Correctional Center have been ramping up production of cloth face coverings with the goal of providing them first to corrections staff and inmates, and then other state agencies.
In a release Friday, the department said it has an order with Hawaii Correctional Industries, which provides job training for inmates, for 14,000 cloth face coverings for all staff and inmates. Distribution to employees in the corrections division, health care division, law enforcement division and administrative division staff is complete, the release said. “Orders from the facilities for inmates is underway.”
Public Safety spokeswoman Toni Schwartz said Friday that production of the masks for internal orders is expected to be completed by the end the month, at which point the effort will be to provide the equipment for external orders.
“Keep in mind that the end of the month is less than a week away,” Schwartz said. “So everyone should have masks very soon.”
She added that most inmates already do have at least one mask, and that more than 4,000 masks — from N95s to cloth facial ones — have been donated by the community. The ultimate goal is to provide everyone with at least two masks, she said.
Additionally, “all facilities have been provided three-ply surgical paper masks for inmates this past week,” part of a larger order of personal protective equipment for inmates and employees, she said.