The Hawaii Supreme Court has ordered the temporary release of certain pretrial detainees and inmates at the Oahu Community Correctional Center, where COVID-19 cases continue to spread and cause unrest.

The court issued its decision Sunday in response to a petition filed by the Office of the Public Defender pressing the court to allow as many inmates as possible at OCCC and the state’s seven other correctional facilities to be released as quickly as possible to prevent further infection among the incarcerated and the facility’s employees.

“This court recognizes the impact of COVID-19 on Hawaii’s community correctional centers and facilities and the urgency by which suitable yet balanced action is required,” the order said. “The COVID-19 outbreak at OCCC, where appropriate physical distancing is not possible, has the potential to not only place the inmates at risk of death or serious illness, but also endanger the lives and well-being of staff and service providers who work at OCCC, their families, and members of the community at large. Because of the virulent spread of the virus within close quarters, the COVID-19 outbreak at OCCC also has the potential to tax the limited resources of Hawaii’s community health care providers.

The order, which follows a Friday hearing on the petition, commands the state Department of Public Safety to conditionally release by Wednesday certain OCCC pretrial detainees charged with a petty misdemeanor or a misdemeanor offense. The order, which also applies to certain individuals incarcerated solely due to petty misdemeanor or misdemeanor convictions, comes with some caveats.

It doesn’t apply to those who have been charged with abuse of family or household members, violation of a temporary restraining order, violation of an order for protection or violation of a restraining order or injunction.

Among other stipulations is that inmates who are released must not have COVID-19 or be awaiting a test or exhibiting symptoms. Inmates who have tested positive must take a retest, but all inmates who are released under the order must quarantine for 14 days, socially distance and wear a mask if they are within 6 feet of anyone. If they get sick, they must report symptoms to the state Department of Health. They must provide contact information to appropriate authorities and are due back in court early next year.

Defense lawyer Myles Breiner called the order “a mediocre start.”

“This will lessen the population at OCCC somewhat, but the vast majority are there on felony and domestic violence cases,” Breiner said. “I’d be surprised if 50 people qualified. If 100 people qualified, it would be amazing.”

The Hawaii State Judiciary and the state Department of Public Safety did not provide an immediate answer to how many OCCC inmates would qualify for the conditional release.

The order gives a nod to some of the concerns of Hawaii Attorney General Clare Connors and Acting Honolulu Prosecuting Attorney Dwight Nadamoto, who have opposed mass release and have said lower court judges should consider requests for release on a case-by-case basis. They also have said that they want the state Health Department to review each inmate’s medical situation prior to release

The order is less broad than the petition, which had sought an immediate system- wide mass release of inmates that fall into several categories: nonviolent pretrial detainees who are being held simply because they can’t afford to pay bail, those who are in jail as part of a probationary sentence and those who are already scheduled to be released within the next six months.

“They were testing the water with this order, we’ll keep pushing for more,” Breiner said.

As of Sunday, the Department of Public Safety confirmed 170, or roughly 18% of approximately 968 OCCC inmates, had tested positive for the coronavirus.

While there are more tests to go, the department said all remaining inmates would be tested in the coming days. DPS also said that as of Sunday, 34 staffers had tested positive.

Dr. Scott Miscovich, president and founder of Premier Medical Group Hawaii, said lots of prison guards came through Sunday’s drive-thru COVID-19 testing in Kakaako.

“I’m hearing from the guards and their union that they are very frustrated because their members haven’t been tested,” Miscovich said. “This tracks back to the failures of the state Department of Health. The positives have been going on for two weeks, and they still haven’t tested the entire facility. Every person, every inmate and every guard should have been tested within 24 hours.”

Public Workers/AFSCME Local 646, the union that represents corrections officers and staff members at OCCC, said Sunday that it was calling on Gov. David Ige and DPS to ensure the safety of both employees and inmates or face legal action.

Darrell Wilcox, an Adult Corrections Officer at OCCC, said Sunday in a union-issued press release that DPS has “failed us big time.”

“We get updates about inmates and staff who tested positive for COVID-19 from the news before we hear anything from management,” Wilcox said. “They are not testing everyone who was exposed to staff or inmates who tested positive. A courthouse was immediately shut down after a deputy tested positive, yet it is business as usual at OCCC. We get disciplined if we try to take leave when we don’t feel safe coming to work.”

Rising case counts and frustration created weekend unrest at OCCC, where inmates upset with coronavirus quarantine lockdowns set a fire in the common area of a housing module Sunday and damaged a toilet and lighting fixture. On Saturday, there was another fire, and an attempted fire after a late lunch frustrated inmates.

Toni Schwartz, Hawaii Department of Public Safety spokeswoman, said in a statement, “Quarantine lockdowns, and cramped conditions, combined with the stress of the COVID-19 outbreak at OCCC translates to inmates becoming restless and agitated.”

Breiner called the situation a “powder keg.”

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