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Attorney general, prosecutors want inmate releases halted

State Attorney General Clare Connors and three of the state’s four county prosecutors want the Hawaii Supreme Court and Special Master Daniel Foley to halt or at least pause a court- mandated push to release inmates from Hawaii’s correctional facilities, an order designed to reduce the potential spread of the new coronavirus at the historically overcrowded jail and prisons.

“I do believe that we need to reevaluate this current effort, not only in light of the fact that we have no COVID-19-positive cases in our prison system at this time, in light of the fact that we have achieved some level of stability across the state and in light of the fact that we have seven individuals who appear to have been released from custody and who have re-offended and, in some cases, have committed very serious crimes,” Connors told the Honolulu Star-Advertiser on Tuesday.

Honolulu Acting Prosecutor Dwight Nadamoto, Hawaii County Prosecutor Mitch Roth and Maui County Prosecutor Donald Guzman all said they agreed with Connors’ assessment.

But state Public Defender James Tabe, who successfully petitioned the high court to allow hundreds of inmates and pretrial detainees to be released by judges on a case-by-case basis after pointing out widespread infections in prisons on the mainland, said it’s too soon to have that discussion.

While Gov. David Ige announced Tuesday that there will be a gradual reopening of businesses in the state, “the ‘new normal’ will still require people just not in this state, but around the world to continue to practice social distancing until a vaccine or a treatment for COVID-19 is developed,” Tabe said.

He said state health officials are already warning lawmakers that a second wave of COVID-19 is likely to arrive in the coming months.

“To return the inmates to the correctional facilities and to increase the inmate population to operational capacity would be foolhardy and ill-advised,” said Tabe, who has said repeatedly that despite the reductions, inmates continue to sleep on floors of their cells.

“Until a vaccine or a treatment for COVID-19 is developed, social distancing must be maintained within the correctional centers and facilities. Social distancing cannot be properly maintained at operational capacity. Social distancing can only be maintained at design capacity.”

Connors said she, her staff and the prosecutors will need to determine the next course of action, which may be the filing of a motion directly to the Supreme Court requesting stop or pause in the granting of releases, or make such a recommendation to Foley to take to the justices.

Judiciary spokeswoman Jan Kagehiro said Chief Justice Mark Recktenwald cannot comment on pending matters. “However, I can say that generally, if a party to a proceeding believes that the court should direct specific actions, they can make that request by filing a motion in the proceeding,” she said.

Foley, in a report filed last week, said there were 1,378 people combined on April 30 at the state’s four jails, or correctional facilities, a drop of 811 from the 2,189 who were housed there March 2. Meanwhile, the report said, the Hawaii Paroling Authority has begun reviewing the cases of nearly 500 inmates for early release and parole.

That was down from the total jail population of 1,641 that was reported April 16, before public defenders and private defense lawyers began filing requests for early release. Public Safety Director Nolan Espinda credited the initial decline to a concerted effort by judges, police, prosecutors, public defenders and the Public Safety Department’s Intake Services Division to limit the number of people who need to be in jail.

For instance, fewer people are getting arrested, and fewer are being charged immediately by prosecutors, Espinda said.

In a separate way of looking at the situation, as a result of the high court’s order, the Office of Public Defenders and other defense attorneys from March 2 through April 28 filed 1,088 motions for early release. Judges agreed to the early releases of 655 inmates based on those motions.

“That’s a large number of people to put into the community,” Connors said. Inmates are being released at a fast pace and over objections, she added.

Nadamoto said while there are no positive cases in the correctional facilities, there have been in the public.

“I think we should step on the brakes right now. We should not rush to release any more people,” he said, noting that no inmate has tested positive.

Guzman said, “At this stage there hasn’t been any real data or incidences that lead to us believe that by continuing the release we’re stopping COVID-19 in the prisons.” While those who support continuing to release inmates note that the Supreme Court order does call for the correctional facilities to strive to hit design capacity, “it will take years to get to that point.”

Roth said, “I believe that the numbers we have are safe, and the Department of Public Safety and the courts have additional options they can take, especially on the Big Island.” Meanwhile, “we have had people who have re-offended, and we have had people that are dangerous being let out,” he said.

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