Hawaii’s justice system was recently forced to confront an unprecedented crisis: the threat of a pandemic in its jails and prisons that could potentially create widespread outbreaks in our communities. The Hawaii Supreme Court responded to that crisis at the urging of the Office of the Public Defender.
As a result, the court appointed retired Judge Daniel R. Foley of the Intermediate Court of Appeals, to talk to all the stakeholders and make recommendations to the court. Foley did exactly that — by bringing prosecutors, public defenders, the Department of Public Safety, the Judiciary and the Hawaii Paroling Authority together for substantive and collaborative discussions. While everyone didn’t agree on every issue, Foley made his recommendations and the Supreme Court created a process by which individual trial court judges in the four counties could consider each case on an individual basis and make a decision. That process, now concluded, was an important factor in Hawaii flattening the coronavirus curve.
There were a few misconceptions that took root in the community and I will do my best to address them. First, the Supreme Court did not order the mass release of inmates. Each case was decided on its merits by the judge assigned to the case. In some cases, the judge sided with the prosecutor, in others with the defense, and in others, all sides were in agreement.
Second, prosecutors had a chance to object in each case. And we did, in many cases where we believed the incarcerated person posed a threat to public safety.
Third, some of the highly-publicized releases held up as an example of the failure of the process were not COVID-related releases at all. One concerned an attempted murder case where the intake service center recommended supervised release. Another involved a case of an individual serving a short sentence for petty crimes who would’ve been released COVID or not.
Fourth, many of those released were incarcerated only because they couldn’t afford to post bail. Many so-called “violent offenders” are released into our community each day because they can afford to post bail.
And fifth, many of the violations committed were technical in nature. Think a missed phone call or appointment or drug test. Think about how difficult it has been for all of us to keep up with once-routine tasks during a pandemic and it becomes understandable how a call could be missed.
Many mainland jails have become flash points for the pandemic in their communities. Cook County Jail in Chicago is one of the largest known COVID-19 outbreaks in the country, with more than 9,400 cases. An outbreak in a jail threatens not just the incarcerated people, but also the workers who go in and out of the facility every day and interact with their families and the larger community. Hawaii’s jails and prisons are especially vulnerable. Our facilities are overcrowded, with three, sometimes four individuals occupying a cell meant for one. Social distancing and proper hygiene is not possible in that setting.
Hawaii’s prosecutors, public defenders, public safety workers and judges, including the Hawaii Supreme Court justices, did their jobs and made hard decisions. As a result, Hawaii has thus far avoided some of the disasters faced on the continent. That should be applauded.
The failed policies of the 1980s and 1990s that have resulted in our current state of mass incarceration have not made us safer. Responding to societal ills with incarceration is a product of systemic racism; it has only produced a bloated, expensive, outdated system that does not serve the public’s needs for mental health, addiction treatment and housing.
Together we should advocate that public resources be prioritized for community-based services better equipped to treat these issues. Now is the time to correct course with evidence-based solutions that will improve our public health and our public safety. If not now, when?
Justin F. Kollar is Kauai County prosecuting attorney.