Hawaii Supreme Court to decide ‘soon’ how to protect inmates, community

The state Supreme Court will make a decision “soon” about whether to release low-risk inmates from state correctional facilities to reduce the spread of COVID-19.

Earlier this week, the state Office of the Public Defender petitioned the Supreme Court to order the lower courts, the Department of Public Safety and the Hawaii Paroling Authority to reduce the population of state jails and prisons to prevent outbreaks of the coronavirus.


Since that petition was filed, a large cluster of cases at the Oahu Community Correctional Center developed, with the Department of Health reporting Friday that 124 inmates and 23 staff have tested positive for COVID-19 so far.

At a hearing Friday, public defender Susan Arnett reiterated the terms of the petition: namely, to conduct COVID-19 tests for all correctional facility inmates and staff, to appoint a public health expert to determine how to better socially distance inmates, and, most critically, that certain inmates charged with nonviolent crimes be released immediately.

Arnett said the inmates that should be targeted for release are those whose health makes them susceptible to the virus, certain pretrial detainees, inmates being held on technical parole violations, and inmates scheduled to end their sentences within six months.

The terms of the petition specifically exclude inmates who have been charged with domestic abuse, violent offenses, sexual offenses or first- or second-degree robbery or burglary.

“If pre-trial detainees could afford bail, they’d be released already,” Arnett said, explaining why releasing such inmates is not a public safety risk. “People who are serving time on probation have also been determined to be allowed back into the community eventually.”

Arnett argued that the Department of Public Safety, which operates the correctional facilities, has been woefully inadequate in upholding U.S. Centers for Disease Control and Prevention guidelines for controlling the pandemic.

According to an admission by Public Safety Director Nolan Espinda, some inmates have been released into the general jail population before their 14-day quarantines ended, sanitization practices are irregularly conducted, and social distancing is impossible in the overcrowded jails.

According to the petition, DPS had conducted COVID-19 tests on 308 inmates throughout the state as of Aug. 12 — or, about 10% of the total inmate population.

“Public Safety has displayed a reckless disregard of the risk (of an outbreak),” Arnett said.

However, state Attorney General Clare Connors argued that the state cannot afford to release a potentially infected population into the community.

While Arnett had argued that there is no time to assess, case by case, whether each individual inmate should be released, Connors countered that individual assessments are necessary to determine if an inmate is COVID-negative before release.

Each inmate would need to be tested before release, with contact tracing done to ensure they had no contact with COVID-positive staff or inmates, Connors said.

While DPS should set up new structures at OCCC to better segregate infected and non-infected inmates — Espinda said all COVID-positive inmates are isolated with each other — Connors said the OCCC cluster is currently contained within OCCC.

Chief Justice Mark E. Recktenwald said he would take the issues raised under advisement, adding that, because of the severity of the problem, the court will reach a decision soon.


As of Friday, the Department of Health reported no COVID-19 cases at the Hawaii Community Correctional Center in Hilo.

Email Michael Brestovansky at mbrestovansky@hawaiitribune-herald.com.

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