‘People should be concerned’: High court order expands release of detainees amid pandemic

  • The Judiciary seal is displayed on the Keahuolu Courthouse. (Laura Ruminski/West Hawaii Today)

  • Mitch Roth

Hawaii County’s top prosecutor said Tuesday all Big Island residents should be concerned about the Hawaii Supreme Court’s most recent order pushing the release of more detainees across the state.

“People should be concerned with this order. We are concerned,” said Hawaii County Prosecutor Mitch Roth. “This is not just for our island; this was for all islands, all jurisdictions. Unfortunately, because of what’s happened on Oahu, everybody is being treated the same.”

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The Hawaii Supreme Court on Thursday issued its most recent pandemic-related order expanding the release of detainees to include those charged for certain petty misdemeanor, misdemeanor and felony offenses on all islands — not specific facilities.

The move comes amid increasing COVID-19 case counts at correctional facilities on Oahu, most notably Oahu Community Correctional Center, where as of Tuesday 290 inmates and 66 staff had tested positive. Roth said as of Tuesday morning there were no known cases at Hawaii Island correctional facilities, which includes Hawaii Community Correctional Center and Kulani Correctional Facility.

“It is very problematic,” Roth said. “This is something our office objected to, and we’ll see what happens. The last time this happened we saw orders that we believe put the public at risk and we’re going to continue to watch for that.”

The high court’s order states individuals who have been charged solely on petty misdemeanor or misdemeanor offenses that are not “excluded offenses” shall expeditiously be released subject to terms and conditions.

Further, the order requires trial court judges to not set bail and to release on their own recognizance or supervised release individuals charged solely on petty misdemeanor or misdemeanor offenses in the wake of the order’s filing.

Excluded offenses are contained in Hawaii Revised Statutes Chapter 707 and include homicide, assault, kidnapping, sexual assault, child abuse, extortion and labor trafficking; first- and second-degree burglary, first- and second-degree robbery, abuse of family or household members, violation of a temporary restraining order, violation of an order for protection or any other family court crimes; violation of a restraining order or injunction, first- and second-degree unauthorized entry in a dwelling and violation of interstate or intrastate travel quarantine requirements.

For individuals charged solely with non-excluded felony offenses, the Supreme Court order encourages trial courts to “regularly employ the practice of releasing defendants without imposing bail, including the release of inmates on their own recognizance, on signature bonds, or on supervised release, unless the defendant poses a significant risk to public health or safety, and should consider other conditions of release, including but not limited to, confinement to a home or other location with or without electronic monitoring.”

Roth noted that the “significant risk to public health or safety” is open to interpretation by individual judges.

The Supreme Court order also requires judges considering revocation or modification of probation, not to issue bench warrants unless its an “excluded offense” or the defendant poses significant risk to public health and safety.

Roth said his office will continue to motion for probation revocation and modifications, however, the presiding judge will make the determination if the order to issue a bench warrant should be granted based on guidelines set by the Supreme Court.

Roth said last week his office filed close to 100 motions in objection to release.

“The courts are reviewing those motions and are denying some and granting some,” he said.

Hawaii Police Department Chief Paul Ferriera said Tuesday the order will not deter officers from effecting lawful arrests for any offense and doing their jobs.

“What this order does, is make the job of a defense attorney easier as they no longer need to present arguments (e.g. non-flight risk, under supervision, etc.) to the Courts to gain the release of their clients,” said Ferreira via emailed response.

He added the order doesn’t really change what has been a practice by the courts due to the lack of adequate facilities to detain offenders resulting in frustration among officers of having to deal with repeat offenders.

“This order of course will just add to that frustration,” he said.

Ferriera said that while the order does have “excluded offenses,” which are primarily crimes against persons and serious property crimes, that seeks to ensure the safety of the community, the move will definitely create anxiety and an atmosphere of uneasiness and “undoubtedly add to our calls for service as offenders are quickly seen back in the community after being released.”

He expressed concern that the message that might be conveyed by the order is that there are only minor consequences for criminal actions during this pandemic.

“It is too early to know what impacts this order will have as a whole; we are just hoping that is minimal. Our message is that this order will not deter our officers from performing their duties and enforcing the laws,” Ferreira said.

The chief expressed his appreciation to the community for everything they are doing in helping to prevent the spread of the coronavirus and in ensuring the health and safety of the Hawaii Island community.

“We would also like to thank the community for all the support of our officers during these difficult times,” he said. “Personally, I want to take this opportunity to thank all the men and women of the Hawaii Police Department, both sworn and civilian, that have demonstrated their resilience and commitment to their chosen profession, making Hawaii Island a safe place to live.”

He reminded the community to stay vigilant as releases occur.

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“All too often crimes of opportunity (such as) thefts of purses/wallets, vehicle thefts, etc. occur in part due to individuals being too trusting,” he said. “The community needs to continue to be our eyes and ears, reporting suspicious activity and watch out for each other in neighborhoods.”

Major Kenneth Quiocho added “Our officers care about the community and want to keep people safe. That is the motivation for the officers, that is what drives their morale, this noble profession and desire to keep people safe.”

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