Lawmakers consider releasing nonviolent offenders early to ease overcrowding

Gov. David Ige is asking legislators to allow the state correctional system to grant “early release” to misdemeanor criminal offenders as a way to ease overcrowding in Hawaii jails, but that plan is being opposed by Honolulu Prosecutor Keith Kaneshiro.

Inmates are triple-celled in each of the state’s four jails and are quadruple-celled in the Hilo and Maui correctional centers, said Department of Public Safety Director Nolan Espinda. That means every jail “has people sleeping on the floor with their head next to the toilet every day,” he said.

Espinda told members of the Senate Committee on Public Safety and Military Affairs on Tuesday that the overcrowding has made the state “extremely vulnerable” to lawsuits alleging conditions in the jails have deteriorated to the point that inmates are being denied their constitutional rights.

The state is not facing that kind of a lawsuit in connection with overcrowding at the moment, but “we’re always on the precipice,” he said.

House Bill 2391 would allow the director of the Department of Public Safety to release inmates accused or convicted of misdemeanor offenses provided they have not been convicted of violent crimes and do not have bails set at more than $5,000.

Inmates would not be eligible for release under the proposed program if they are on probation or parole for more serious offenses, or if they were ever arrested or convicted of any violent offense.

The measure has already won the approval of the state House, and is now being considered by the Senate. Espinda said the bill is meant “to start a discussion with all of the parties involved.”

If the state is going to begin releasing prisoners as a short-term solution to overcrowding, it should be based on a decision made by the state’s elected officials and “not some dictate from high and above, so that’s what this is about,” Espinda said.

The Hawaii prison system was sued in 1984 in connection with overcrowded and allegedly unconstitutional conditions, and entered into a federal consent decree in 1985 that imposed population caps on jails, including the Oahu Community Correctional Center.

To help the system remain within those mandatory caps, lawmakers passed a law in 1993 that authorized prison officials to release some offenders. That law expired in 2000, but HB 2391 would revive the director’s authority to release some misdemeanor offenders.

Espinda said that as of Tuesday the jails were holding 261 men and 90 women on misdemeanor charges or convictions. However, the new release program would apply only to inmates who are jailed after the bill is passed and signed into law.

The measure will not solve the overcrowding problem, Espinda said, “but it’s a start.”

“Overcrowding in and of itself is not necessarily an unconstitutional condition, but the conditions surrounding it — our inability to provide enough medical or proper medical care, food, things that are constitutional rights — really get impacted by overcrowded conditions,” he added.

The measure is opposed by Kaneshiro, whose office warned that the bill as written “would potentially permit the release of defendants who could create a dangerous situation for victims and for the public.”

“While we have always appreciated the Department of Public Safety’s hard work and dedication to protecting the public, this proposal to lower the prison population by releasing defendants whom the director deems fit — simply to meet arbitrary headcount goals — seems directly contrary to the goal of public safety,” Kaneshiro said in written testimony submitted to the committee.

Deputy Prosecutor Mark Tom told lawmakers that the term “violent offenses” is not defined in the bill, which leaves it to the Department of Public Safety to decide what is “violent.”

Tom raised the issue of people who violate temporary restraining orders. In those cases there might not be any violence involved, but “for the victim who is the victim of the restraining order violation or order of protection, that is a very dangerous situation that could escalate to something that is very violent.”

The measure is supported by state Attorney General Douglas Chin, who recommended the misdemeanor release program be established for three to five years.

Over the longer term, the Department of Public Safety “is currently making efforts to build new facilities that will presumably reduce the overcrowding problem,” according to testimony submitted by Chin.

Espinda agreed the program is needed to cope with the immediate overcrowding problem.

“If five years ago plans were being made to expand our jail system, we could sit here and say, ‘It’s coming.’ But it’s not,” Espinda told the Public Safety Committee. “So what we need to have is a long-term plan in place, and something to address the emerging problem as we speak in the event that someone comes and sues us, because we are extremely vulnerable, senator, at this point in time.”