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American Civil Liberties Union joins call for early release of certain prisoners

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The ACLU of Hawaii is joining the state Public Defender’s call for the early release of certain classifications of prisoners and is urging the Hawaii Department of Public Safety to vaccinate more of its employees as two of several steps needed to stop the rapid spread of the COVID-19 virus among the state’s incarcerated population.

Attorneys with the ACLU of Hawaii filed a motion for leave to file an amicus brief in the recent Supreme Court proceeding initiated by the public defender asking for the release of some people in custody to help alleviate overcrowded conditions amid the current surge of infections.

In their proposal, “no person — regardless of what crime they are accused or have been convicted of — deserves to be subjected to cruel and unusual punishment, or face almost-­guaranteed exposure to a life-threatening virus.”

The ACLU is arguing for the release of pretrial detainees, people who are currently incarcerated for technical violations of probation or parole, and kupuna.

The ACLU also asks the court to push employees to comply with the state vaccination mandate and reduce populations in DPS facilities to ensure they are below “infectious disease emergency capacities” established by the Hawaii Correc­tional System Oversight Commission. DPS currently has the lowest participation rate of any state department, with 77% of the 2,285 employees vaccinated, but state officials believe the rate is closer to 83% when workers on extended leave are excluded.

“We are alarmed that key players in the Hawai‘i criminal legal system — from police to prosecutors to the Department of Public Safety and more — continue to mishandle their constitutional obligations. This includes the Department of Public Safety’s continued failure to protect incarcerated people in its care and custody from the peril of COVID-19,” said Jongwook “Wookie” Kim, the ACLU of Hawaii’s legal director, in a statement to the Honolulu Star-Advertiser. “The situation is urgent. The severity of the outbreaks and the magnitude of case counts inside (and, for that matter, outside) DPS facilities continues to skyrocket. Based on the class action before the federal court, DPS has shown it is unable to prevent the risk of harm presented by COVID in its dangerously overcrowded facilities. The solution, at this point, is to reduce the incarcerated population”

DPS Director Max N. Otani did not respond to a Star-Advertiser request for comment about the ACLU’s proposed amicus brief.

Toni Schwartz, public information officer for the department, referred the Star-Advertiser to the response to the Public Defender’s petition filed Tuesday by Hawaii Attorney General Clare E. Connors.

“The most effective way to protect the vast majority of inmates from moderate to severe illness without compromising public health and safety is entirely within the control of OPD’s own clients: they must simply agree to the vaccines DPS has made readily available to them,” according to a sworn declaration from Otani and Edmund “Fred” K.B. Hyun, chairman of the Hawaii Paroling Authority. “Although DPS has been able to encourage more inmates to get vaccinated through education and outreach, large numbers of inmates have refused, placing both themselves and their fellow inmates at unnecessary risk of contracting COVID-19.”

The federal settlement DPS entered into Sept. 2 covers the same class of inmates the Public Defender seeks to represent in its current petition, according to the attorney general’s response.

Releasing inmates at a time when the state’s hospital are at capacity and health care workers are strained risks the community’s health, safety and welfare, the state’s attorneys argue.

“Every released inmate must be: (1) fully vaccinated, unless exempted for medical or religious reasons; (2) have a safe place to live; (3) be evaluated for the risk they pose to the community — including the probability that they will re-offend; and (4) be subject to reasonable monitoring so they do not commit additional crimes,” according to the filing.

In February 2020, DPS began planning for the worst-case-scenario before the first infection was identified in a correctional facility, according to the attorney general’s response. The DPS 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.

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