CORRECTION: A previous version of this story stated the Supreme Court order mandated population reduction in correctional facilities to their design capacities in an effort to prevent a COVID-19 outbreak. State Judiciary spokeswoman Jan Kagehiro said the instruction by the court wasn’t a mandate. She also said an instruction to lower court judges that supervised release should be presumed for inmates would be unless release posed a safety risk to the public or the inmate expired with the deadline for motions for COVID-19 releases on April 28. The Tribune-Herald regrets the errors.
A letter from the Big Island’s prosecutor to a special master appointed by the state Supreme Court to oversee an orderly population reduction in the state’s jails and prisons expressed alarm over the release of a pretrial detainee in a violent home invasion after judges twice reduced the man’s bail.
The letter dated May 22 from County Prosecutor Mitch Roth to Daniel R. Foley doesn’t name the defendant, but the circumstances described by Roth refer to Phillip Jon Richardson, a 34-year-old Pahoa man accused of two counts of strong-arm robbery, first-degree burglary and fourth-degree theft.
The robbery and burglary charges are Class B felonies punishable by up to 10 years imprisonment upon conviction.
“While the initial orders from the Supreme Court looked at non-dangerous defendants being released to prevent a possible COVID-19 outbreak in our correctional facilities, the interpretation by some judges appears to be that they are doing all they can to prevent us from incarcerating offenders no matter what the crime,” Roth wrote.
The Supreme Court order, which was lifted Friday, was issued in a response to a petition from the state Office of the Public Defender. It instructed that all correctional facilities in the state — which are historically overcrowded — should reduce inmate populations to the facilities’ design capacities. As of May 31, Hawaii Community Correctional Center reported a population of 259 inmates, 33 more than its design capacity — a reduction of 136 inmates from March 2, when a population of 395 was reported at the Hilo jail.
Richardson is accused of entering a Hawaiian Beaches home Nov. 30, assaulting a 56-year-old woman resident, stealing her cordless phone, then taking a swing at the woman’s husband and missing — before leaving with the phone.
According to the complaint, Richardson later tried to take a motor vehicle from a 70-year-old man by force, damaged the vehicle in an amount exceeding $500, and took the man’s car keys.
Richardson’s $76,000 bail was reduced Dec. 2 to $50,000 by Hilo District Judge Kimberly Taniyama, who, as Roth noted, set a bail condition that Richardson “have no contact (and) no threats of harm to the crime victim.”
Taniyama also ordered that three mental health professionals examine Richardson to determine his fitness for trial.
Roth noted that a bail study, which is not a public document, was done on Richardson and found the risk level of re-offending high. According to the letter, the study showed that Richardson was previously sentenced to three periods of incarceration and had tested positive for illicit drugs.
On May 12, one of the mental examiners’ reports had still not been filed and the fitness hearing was postponed. Melody Parker, Richardson’s court-appointed attorney, requested that Richardson be freed on court-supervised release without monetary bail. Hilo District Judge Jeffrey Hawk denied that request, but reduced Richardson’s bail to $25,000, which was posted May 21 by Aloha Bail Bonds.
“To add insult to injury, while the first motion had conditions of bail not to contact, threaten or harm the crime victim, this new order did not,” Roth wrote.
Court minutes don’t indicate Parker mentioned COVID-19 in her request for supervised release.
Roth wrote that one of the mental examiner’s reports, which are not public, found Richardson “posed a moderate, but not imminent risk of danger, to himself, others and property.” According to Roth, the doctor found Richardson’s “dangerousness was not the result of a mental disorder, but rather a longstanding criminal disposition and substance abuse problems that the defendant has not shown he can control when unsupervised.”
Roth indicated in the letter that Foley talked to him and the woman victim — who told the Tribune-Herald on Dec. 1, “I thought (Richardson) was going to kill me. He had the scariest looking eyes.”
“As you could hear in her voice, she is afraid for her life and does not feel safe in her own home,” Roth wrote. “… She stated that her family and her neighbors also feel like the system cannot or will not protect them.”
In his last paragraph, Roth wrote Richardson’s “is not an isolated case.”
In Foley’s latest report to the high court dated May 28, he acknowledges “criticism of the early release of inmates requested by the public defender and ordered by this court,” stating the criticism has come “from the attorney general, prosecutors, legislators, law enforcement, the Honolulu mayor and city council, as well as members of the general public.”
“The criticism is that the early release of inmates through the courts has been rushed, that some early releases were not consistent with public safety and should not have taken place and that because there have been no positive COVID-19 test results of inmates, the releases were and are not justified.”
As noted, on Friday, the high court issued an order “concluding matters” in the public defender’s petition and terminating Foley’s service as special master. The court’s order noted while “the pandemic continues, the rate of new infections in Hawaii remains at a very low rate” and that much of the urgent relief requested by the public defender “has been addressed.”
Friday’s document said the state “continues to have the option of filing individual motions seeking to modify the release status of any defendant” and the public defender or defense lawyers “may file individual motions seeking the release of any inmate.”
The order to conclude proceedings was signed by Chief Justice Mark Recktenwald and Associate Justices Paula Nakayama, Sabrina McKenna and Richard Pollack, with Associate Justice Michael Wilson dissenting.
Wilson wrote the high court should “maintain jurisdiction at least until the special master is granted the opportunity to make independent recommendations about how to reduce population levels sufficiently to achieve social distancing.”
Email John Burnett at jburnett@hawaiitribune-herald.com.
