The Hawaii Supreme Court heard oral arguments Wednesday over the third petition calling for the early release of certain incarcerated people to help ease crowded conditions that lead to outbreaks of COVID- 19 in the state’s jails and prisons.

Justices began by asking Deputy Public Defender Jon N. Ikenaga to define what has changed since the last two petitions and to define the role and authority the court has to manage the prison and jail population. A federal order issued July 13 called for improved conditions and oversight.

“This court has essentially looked at the same facts — crowding, sanitation, a number of times before,” said Associate Justice Michael D. Wilson. “And this court has just come to a different conclusion, that there is no reason for this court to take action at this point. No violation of cruel or unusual conditions. Is there something different before us now that was not before us before?”

Ikenaga said the federal court had numerous declarations and affidavits from staff members providing specific information about conditions that the public defender did not have in its previous report.

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.

According to the state Department of Public Safety, as of Wednesday, 2,805 inmates have been infected and recovered from COVID-19 with 21 active cases in nine facilities that house Hawaii prisoners. Nine inmates have died from complications associated with the virus. Corrections staff have recovered from 366 infections, with 14 active cases.

On July 13, 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 July 13 said she found accounts from correctional staff and inmates detailing inhumane conditions and major deficiencies in safety protocols in Hawaii’s jails and prisons to be credible.

She ordered DPS to adhere to its plan for protecting inmates from COVID-19.

Chief Justice Mark E. Recktenwald mentioned a set of 2019 legislative reforms that included a requirement that DPS send updates every 90 days about whether pretrial inmates should be released or remain in custody. That information helps public defenders file motions requesting the release of prisoners to help ease crowding.

Recktenwald was referring to Act 179 that includes a requirement that “the relevant community correctional centers, on a periodic basis but no less frequently than every three months, shall conduct reviews of pretrial detainees to reassess whether a detainee should remain in custody or whether new information or a change in circumstances warrants reconsideration of a detainee’s pretrial release or supervision.”

In its petition filed Aug. 27, the Public Defender alleged that the state is not totally complying with the law.

“Would you oppose a directive from this court that those reports not only be conducted but transmitted … every three months, whether or not they change bail or incarceration status?,” Recktenwald asked Ikenaga.

Deputy Attorney General Craig Y. Iha, who was joined off camera by DPS Director Max N. Otani and Edmund “Fred” Hyun, chair of the Hawaii Paroling Authority, countered that the state did not need an order and is already complying.

Associate Justice Todd W. Eddins told Ikenaga that it appeared the Public Defender was asking the court to make policy decisions and pointed out that the courts on every island work hard to process motions for pretrial release as quickly as possible.

Ikenaga replied that the justices would not be rewriting statutes, and that they have the authority to order the lower courts to take actions to help ease overcrowding in Hawaii’s correctional facilities.

Arguments continued for nearly two hours. There is no timetable for the court to rule.