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Public defender seeks release of certain inmates to curb COVID-19

The outbreak of COVID-19 infections in Hawaii prompted the Public Defender’s Office to again call for the release of certain classifications of inmates to alleviate overcrowded correctional facilities where short-staffed teams of workers are doing what they can to stop outbreaks inside the facility from spreading to the community.

“Today the situation that faces the State is exponentially more dire than that which prompted this Court’s swift action in August 2020. The necessity for this Court to once again intervene is urgent,” wrote Public Defender James S. Tabe, Assistant Public Defender Lee S. Hayakawa and Jon N. Ikenaga, the supervising appellate attorney, in a petition filed Friday in the Supreme Court of the State of Hawaii. “Rather than being in a downturn in case counts as was the case in August 2020, we are facing a rapid upswing of unknown severity.”

Between April and June 2020, 650 inmates were released to help ease overcrowding and limit conditions that make it easy for the virus to tear through modules of incarcerated people. There were 41 active infections of correctional staff and 151 inmates as of Monday, according to the state Public Safety Department. The surge in infections has altered some PSD operations.

Starting Monday, individuals housed at the Oahu Community Correctional Center are not being transported to Circuit Court and District Court.

The Kauai Community Correctional Center has not transported any individuals to court for several weeks. Hearings, including those on motions for release, have been continued as phone and video accommodations are made. The Hawaii Community Correctional Center has not transported any people to court since July 1.

“The Office of the Public Defender would like to emphasize that it is aware of and sensitive to public safety concerns regarding the release of incarcerated persons from correctional facilities. We believe our Petition seeks a measured approach for releases which strikes the delicate balance between public health and public safety concerns,” said Tabe in a statement to the Honolulu Star-Advertiser. “We are hoping that the various parties involved in this action — our office, the prosecutors, PSD, HPA (Hawaii Paroling Authority) and the courts — will be able to work collaboratively to develop solutions that will ensure the health and safety of our clients and staff within the correctional facilities and the community.”

Correctional facilities, restaurants and an indoor wedding and concert were places where clusters of cases broke out in July, according to the state Department of Health. That surge has carried over through August as overburdened hospitals and health care workers are managing 10,946 active COVID-19 cases throughout Hawaii, according to statistics released by DOH.

“These staggering numbers far outweigh the case counts which compelled the Court to describe the conditions as a ‘public health emergency’ in August 2020 and prompted the Court to take swift and decisive action,” the public defenders wrote.

PSD officials reiterated that they are doing all they can under extreme and challenging circumstances to stem the spread of the virus.

“First, we would like to clarify that the Department of Public Safety (PSD) does not make the determination as to who should be released. Courts decide detainment and release and PSD follows through with executing their order. PSD is awaiting the decision from the Supreme Court,” said Toni Schwartz, public information officer for the department. “We support all reasonable efforts made to safely reduce the inmate population while keeping the needs for public safety foremost in mind. The extreme overcrowding our facilities have been burdened with for decades along with the unique challenges posed by the COVID- 19 epidemic equates to facility conditions that push the limits of the staff working there and inmates incarcerated there.”

Although PSD has a Pandemic Response Plan, it has been unable to contain the spread of COVID-19 within its correctional facilities, according to Tabe.

PSD began looking in late February 2020 at ways to prepare for possible worst-case-scenario, large-scale planning, well before the first case was identified in a correctional facility, according to Schwartz. The PSD Health Care Division developed the plan based upon current guidance from the U.S. Centers for Disease Control and Prevention and approved by the Office of Correctional Health of the American Correctional Association. That plan has been updated eight times to keep current with evolving policies and health care recommendations.

“All of the correctional facilities that are experiencing an outbreak involving inmates and staff are also dealing with staffing shortages at the same time,” Schwartz said. “Vacancies and normal attrition also contribute to the shortage. The staffing shortage in our facilities is not related to the vaccine mandate.”

PSD is trying to fill vacancies through increased external recruitment efforts, additional corrections recruitment classes, including day and night classes, and additional emergency hires.

“The Judiciary respectfully declines to comment,” said Jan Kagehiro, communications and community relations director for the state Judiciary, in a statement.

Prisons have a unique mix of factors that make inmates vulnerable to COVID- 19 infections: overcrowding, insufficient sanitation, poor ventilation and inadequate health care, according to PLOS Neglected Tropical Diseases Journal, cited by the public defenders in their petition. Incarcerated people are infected by COVID-19 at a rate five times higher than the nation’s overall rate, according to the American Medical Journal.

Of further concern is that PSD currently has the lowest rate of vaccinated employees of any state department at 77.1% of its 2,285 employees, despite the Aug. 5 vaccination and testing order for state and county employees issued by Gov. David Ige.

“The percentage released August 17 represents employees who stated they are vaccinated, partially vaccinated, and not vaccinated, and also includes those who could not fill out the attestation forms,” Schwartz said via email in a statement to the Star-Advertiser. “Roughly 10% of our employees are out on various types of leave and not available to report their status yet. If you exclude that group, then PSD has a vaccination rate of 83%. We expect the percentage to rise even more once those employees on leave return and submit their attestation.”

Max N. Otani, director of the state Department of Public Safety, told the Star-Advertiser that his leadership team is vaccinated, and he encourages all PSD employees and inmates to accept the vaccine, “if not for themselves, for their loved one’s safety and well-being.”

However, Otani said he understands those who refuse to accept the vaccine despite multiple reminders each week and easy access and availability of vaccines for all PSD employees.

“Everyone has free will and the right to make a choice for their own individual health care needs,” he said in a statement.

The department is working to expand vaccination opportunities for all correctional staff through an agreement with The Queen’s Health Systems, Otani said.

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