The Hawaii Supreme Court on Friday lifted its order requiring the state, lower courts and other stakeholders to speed up the process by which hundreds of inmates from Hawaii-run prisons and jails were considered for release to prevent the spread of COVID-19 among incarcerated individuals, corrections employees and their families.
Since the initial order was issued in April, more than 650 inmates have been released across the state. However, concerns about the spread of coronavirus in the broader Hawaii community have diminished and many of the establishments that have been closed to the public are now reopening. There also have been no confirmed cases of COVID-19 at any Hawaii prisons or jails.
The original release order was issued after state Public Defender James Tabe filed two separate motions in March seeking inmate releases, arguing that Hawaii’s jails and prisons have historically been vastly overcrowded. He warned that outbreaks through the system were imminent, as had occurred in several overcrowded institutions on the mainland.
The court appointed retired Appellate Judge Dan Foley to oversee discussion between stakeholders and make recommendations to the justices. Many of the actions taken by the Supreme Court were subsequently based on Foley’s recommendations.
In lifting the order Friday, the four-justice majority said: “Much of the urgent relief requested in the two petitions (filed by the Office of the Public Defender) has been addressed. All of the (Office of the Public Defender) motions for early release filed pursuant to this court’s April 15, 2020, order were adjudicated by April 28, 2020.”
Friday’s order specifically does not bar Tabe’s office or defense attorneys from filing motions seeking the release of individual inmates, nor does it stop state attorneys or prosecutors from seeking to modify the release status of any of those released.
It also will not stop already scheduled hearings for requests of early release of individual inmates before the Hawaii Paroling Authority.
Additionally, the court said, “further issues regarding inmate populations at correctional facilities may be addressed through alternative means, including collaboration with the Hawai‘i Correctional Systems Oversight Commission … to, among other things, establish maximum inmate population limits for each correctional facility and formulate policies and procedures to prevent the inmate population from exceeding the capacity of each correctional facility.”
The key practical impact of Friday’s order is that the high court will no longer provide oversight of the commission’s continuing work to reduce inmate populations, although stakeholders say they expect that work to go on as tasked by the state Legislature.
In a dissenting opinion, Associate Justice Michael Wilson argued that overcrowding and the potential for COVID-19 spread remain real concerns. Wilson said the court’s oversight of the inmate population issue should continue at least until Foley can make further recommendations on how best to address it.
Hawaii Attorney General Clare Connors, three of the state’s four county prosecutors, and others criticized the court for ordering the releases, worried that inmates were being released with lax supervision and were committing crimes in the community.
They also argued the Supreme Court action was unnecessary because the Department of Public Safety, the various county police departments, prosecutors and defense attorneys were already working cooperatively to ease the populations on their own.
The Department of Public Safety reported Friday that 2,686 inmates were being held at its five prisons, including the privately run Saguaro Correctional Center in Arizona, a drop of 91 inmates since March 2. DPS also reported the population at its four jails had dropped to 1,490 from 2,189 on March 2 with the release of 699 inmates.
Public Safety said while the initial order was responsible for many of the releases, a good number of them were “due to the up-front diversion efforts made by county police departments, PSD’s Intake Services Center Division and the State Judiciary.”
Honolulu Acting Prosecuting Attorney Dwight Nadamoto said while he appreciated the court’s action Friday, damage has already been done in the community.
“Close to 300 inmates were released from Oahu correctional facilities because of the purported threat from COVID-19,” Nadamoto said. “As of (Thursday), 79 of them had been re-arrested.”
The arrests involve a variety of offenses, including robbery, burglary, car theft, drunken driving, property crimes and violating the terms of their release, Nadamoto said.
Another complication is that many of the inmates released on a temporary basis will now need to return to incarceration, and it may be difficult to get them back. The releases were done so hastily that in most cases no consideration was given to their returns or how to track them, he said.
“Some were given return dates, others were not.”
Prosecutors will now have to petition the courts for inmates to return to finish their sentences, Nadamoto said.
Nanci Kreidman, chief executive officer of the nonprofit Domestic Violence Action Center, said “victims were terrified” by the release initiative.
“We never felt assured that the perpetration of domestic violence was recognized as a significant threat to victims,” Kreidman said. “These crimes are routinely minimized. Even when an inmate is not incarcerated for a crime of domestic violence, there is often a history or a victim in the background.”
But Tabe and other advocates for the incarcerated said they are disappointed the court won’t be available to provide additional oversight.
“We are grateful to the Hawaii Supreme Court for going as far it did,” Tabe said. “Although we wish that they had retained jurisdiction for a bit longer, they did establish a good foundation for reducing the inmate population to safer limits.”
Tabe said he will work with the Oversight Commission and other stakeholders “in continuing to set and maintain safe capacity limits, as social distancing measures must still be kept in place in our jails and prisons.”
Kat Brady, coordinator of the Community Alliance on Prisons, said the initial order called for the releases to continue to meet design capacity. At this point, she said, the Halawa Correctional Facility and the four county jails remain over design capacity.
“Why are they backing away from their own order?” Brady said. “How can anyone think that COVID is not in jails and prisons when the department has tested only 35 of the 4,260 incarcerated persons? That is less an 1% (0.8%).”