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American Civil Liberties Union of Hawaii wants scrutiny of prisons’ virus response to go on

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The American Civil Liberties Union of Hawaii has called for continued judicial supervision of COVID-19 safety measures in Hawaii correctional facilities, arguing that the state’s incarcerated population remains at risk of contracting the virus and causing clusters in jails, prisons and the community.

The ACLU of Hawaii filed a friend of the court brief Thursday urging the Hawaii Supreme Court to continue its oversight of the state Corrections Division’s management of COVID-19.

The ACLU also urged the Supreme Court not to terminate orders that have prohibited judges from imposing bail on defendants accused of certain low-level offenses during the pandemic.

The state argued in a filing that its oversight is working and includes testing of inmates, quarantining, medical isolation, screening and other preventive measures.

“By implementing these protocols, DPS has been able to contain the initial outbreak at OCCC in August 2020, as well as prevent, contain, and control the spread of COVID-19 at all state facilities,” the state’s attorneys wrote. “The rate of infections in Hawaii and in state facilities has significantly declined and has remained at levels significantly lower than in the fall of 2020.”

On Aug. 31 there were 289 positive cases at Oahu Community Correctional Center and one positive case at Ha­lawa Correctional Facility. As of April 6 there were only two known active cases within all state facilities. Maui Community Correctional Center was the only facility with active cases. And there were no inmate hospitalizations, according to the state’s filing.

As of April 5, 1,825 inmates in state facilities received at least one dose of the COVID-19 vaccine, which accounted for about 61% of the state’s 2,953 prisoners.

“Its a good thing the court remains involved in this,” said state Sen. Clarence K. Nishihara, chairman of the Senate Committee on Public Safety, Intergovernmental and Military Affairs Committee. “You want to make sure that those who are released are not going to go out into the community and cause problems. If we are going to say that we don’t need oversight, let’s get to that herd immunity question first and get more of the inmates to accept the vaccine and find out why more of these inmates are not getting it. I think oversight for a little longer is not a bad thing.”

Correctional facility health experts landed on both sides of the oversight argument in their responses filed with the court.

Gavin K. Takenaka, DPS’ Corrections Healthcare administrator, said the state has tested 13,136 inmates and taken every precaution to isolate and quarantine individuals who test positive or are exposed to COVID-19.

“The first round of vaccinations has been completed at all facilities,” Takenaka wrote. “All inmates are offered vaccinations regardless of age or other factors, except when medically contraindicated. DPS continues to educate inmates about vaccinations.”

Dr. Pablo Stewart remains concerned about the health and safety of people inside DPS facilities. His work as an attending psychiatrist takes him to OCCC once a week, and he said conditions remain unacceptable.

He wrote that during his visit Thursday the men were crammed in small cells, often on thin, decrepit mattresses, and without the ability to move around or get outside. Stewart wrote that he has never been offered a COVID-19 test, and questioned why the state has presented no data on how many people within DPS facilities are fully vaccinated.

“In my view, people inside OCCC continue to experience constitutionally prohibited cruel and unusual punishment,” Stewart wrote. “It is my opinion that, until a significant proportion — ideally, 70% — of all Hawai‘i residents are fully vaccinated, undoing the procedures currently in place would not only be unwise, but would further magnify the risk of harm that incarcerated people in Hawaii face. I strongly urge this Court not to terminate this proceeding.”

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