Citing alarming conditions in Hawaii correctional facilities including dozens of inmates thrown together without running water and bathrooms, a federal judge ordered Hawaii’s Department of Public Safety to follow its plan for protecting inmates from COVID-19, stressing the severity of the health threat in Hawaii’s jails and prisons, where about half of the inmate population has been infected by the virus since the start of the pandemic.

U.S. District Judge Jill A. Otake stopped short of appointing a special master to take over COVID safety protocols in the correctional system, as attorneys for inmates had requested, but her 69-page order issued Tuesday said she found accounts from correctional staff and inmates detailing inhumane conditions inside the facilities and major deficiencies in safety protocols to be credible.

“If the conditions described in the declarations submitted by plaintiffs continue, the risk of harm to all inmates is undeniable,” wrote Otake.

Hawaii’s prisons and jails were “plagued” by COVID-19 outbreaks at five of eight facilities, resulting in the infection of 1,532 inmates out of a population of about 3,000, 272 DPS staff, and seven overall deaths, according to the order.

Eight wardens and other top state officials sought to assure the court that they had adopted policies consistent with Centers for Disease Control and Prevention guidelines and that robust policies were in place for screening and quarantining inmates, sanitizing facilities, issuing personal protective equipment and testing and vaccinating inmates. But Otake wrote that the “mere existence of policies is of little value if implementation and compliance are lacking.”

Her order was in response to a lawsuit brought on behalf of inmates Anthony Chatman, Francisco Alvarado, Zachary Granados, Tyndale Mobley and Joseph Deguair. Each submitted declarations about their experiences in a system that found them mixing with, and in some cases contracting COVID-19 from, infected inmates.

Alvarado, a 52-year-old inmate with lupus, was previously incarcerated at Halawa from 2019 to March 2021, where he was a module clerk who prepared paperwork for inmates’ movement within the facility and delivered meals to cells, according to the order. Alvarado witnessed inmates remaining in their cells after testing positive for COVID-19, the mixing of COVID-positive inmates with asymptomatic inmates, and the transfer of asymptomatic inmates into unsanitized cells previously occupied by COVID-positive inmates, according to court documents

During meal deliveries, Alvarado was exposed to COVID-positive inmates, who were not forced to wear masks, through “open screen” cell doors. When he contracted COVID-19 in December 2020, he requested medical assistance but received little to none and Alvarado’s underlying medical condition caused him to sustain serious damage to his kidneys, according to the order.

Gina Szeto-Wong of the Law Office of Eric Seitz argued the case on behalf of Alvarado and the other plaintiffs.

“It (the ruling) means a lot. It means the federal judge believed declarations were more credible than the eight wardens who submitted statements in support of their positions. Hopefully incarcerated people in Hawaii will have some protections from COVID-19 like Hawaii residents have,” Szeto-Wong told the Honolulu Star-Advertiser.

She said Seitz received between 800 and 1,000 letters from inmates complaining about the lack of COVID-19 protections and she personally fielded between 15 and 20 phone calls from inmates daily. She and DPS will meet with a magistrate once a month to provide updates on the conditions and adherence to DPS’ COVID-19 plan.

As part of the court proceedings, inmates, as well as staff willing to assist the plaintiffs, submitted written declarations detailing harrowing conditions within the state’s facilities, particularly at the Hawaii Community Correctional Center in Hilo, where a major COVID outbreak spread rapidly through the jail last month, infecting more than 230 inmates and about two dozen staff.

The jail was designed to hold just 206 inmates, but last month held 344.

Staff and inmates said 40 to 60 pretrial inmates were routinely housed in a room called the Fishbowl that’s about 30 feet by 30 feet, while as many as seven detainees have been kept in chain-link “dog cages” in the intake area.

There is no bathroom or running water in the Fishbowl, so inmates have had to use a nearby bathroom with a single urinal, a sink and a toilet that’s constantly overflowing, contributing to the stench of human waste that permeates the air around the room, according to declarations from staff and inmates. Guards often deny requests from inmates to use the bathroom, forcing them to urinate on themselves, on walls and in cups, according to the lawsuit.

Otake wrote that the conditions described by staff and inmates “are alarming, with or without COVID-19,” and notes that while the Constitution doesn’t mandate comfortable correctional facilities, it doesn’t allow inhumane ones either.

In late May, after two inmates in the Fishbowl tested positive for the virus, staff say all, or nearly all, detainees in the room also tested positive.

Five correctional staff provided declarations saying that COVID safety protocols were often nonexistent. They described an environment where inmates weren’t being screened for COVID upon entrance, social distancing was impossible, vulnerable inmates with health conditions weren’t being identified and sanitation and personal protective equipment were sorely lacking.

“The evidence before the Court demonstrates that Defendant has not taken reasonable available measures to abate the risks caused by the foregoing conditions, knowing full well — based on multiple prior outbreaks — that serious consequences and harm would result to the inmates,” wrote Otake. “And Plaintiffs have suffered injuries as a result.”

Otake left open the possibility of appointing a special master in the future. She also ruled that the case can move forward as a class-action lawsuit.

Jongwook “Wookie” Kim, legal director for the ACLU of Hawaii, which filed an amicus brief in support of the state Public Defender’s efforts to secure oversight of DPS’ COVID-19 protocols, said the ruling will hopefully protect Hawaii inmates and lead to significant improvements in the living conditions in correctional facilities.

“What I think is most significant about the court’s ruling in this case, is that the Judge really looked beyond the statements made by DPS officials in their declarations. There is a tendency, not just by the courts, for people in power and stakeholders to not believe the accounts of people who are incarcerated because they are incarcerated,” Kim told the Star-Advertiser. “She is basically pointing out that DPS has all these declarations but they are using boiler plate language they essentially copied and pasted from their pandemic response plan. The legal standard here regarding deliberate indifference is very hard to meet. We are pleased to see a court has concluded, on a preliminary injunction motion, that DPS has violated the indifference standard on an objective basis and on a subjective basis. Those kind of rulings are very rare.”