Surge in COVID-19 cases spurs petition from Office of Public Defender seeking the release of some inmates


The Office of Public Defender on Wednesday petitioned the state Supreme Court, seeking an order to the lower courts, the Department of Public Safety and the Hawaii Paroling Authority “to take immediate steps to significantly reduce the population of its … correctional facilities to prevent the massive loss of life and harm that the spread of COVID-19 would cause in such facilities.”

The Supreme Court is conducting a hearing on the petition today at 11 a.m.


The petition was filed the day before the Department of Health reported Thursday at least 86 new diagnosed cases of coronavirus are part of an existing cluster at Oahu Community Correctional Center.

Health investigators say at least 116 cases are attributable to OCCC, with 24 staff and 92 inmates having tested positive for COVID-19. The 86 cases are part of 355 newly diagnosed cases Thursday, the record single-day case count since the beginning of the pandemic, which also included two deaths of elderly Oahu men who weren’t incarcerated.

On April 2, at the public defender’s request, the state’s high court appointed retired Intermediate Court of Appeals Judge Daniel Foley as a special master to oversee an orderly reduction of population in the state’s jails and prisons. With infection counts then low in the state, an order was issued June 5 “concluding matters” in the original order and terminating Foley’s service as special master.

Lee Hayakawa, state assistant public defender, said this time the Office of Public Defender is asking for an extraordinary writ and/or writ of mandamus — a direct order from the Supreme Court to judges, DPS and the parole board — to release inmates deemed nondangerous without appointment of an intermediary. He said the outbreak at OCCC calls for more immediate measures than appointment of a special master or release motions for individual inmates or defendants, as the Office of Public Defender made earlier during the pandemic.

“Obviously, it’s up to the Supreme Court how they want to go about making releases, but it would be more expedient if the court would establish categories (of inmates) and release people once it’s agreed upon that a certain person falls into a certain category,” Hayakawa said.

Among inmates OPD is seeking release for are pretrial detainees charged with any nonviolent offense — whether misdemeanor, petty misdemeanor or felony — with the exception of burglary, unauthorized entry to a dwelling or a sex offense; anyone serving a sentence of 18 months or less as a condition for felony sentence deferral or probation except those sentenced for the previously mentioned offenses; and inmates serving sentences for nonviolent misdemeanors or petty misdemeanors.

Also being sought is the abolition of cash bail for indigent defendants who aren’t a flight risk or don’t pose a threat to public safety, and an order to the parole board to consider release of inmates who are older than 65 or pregnant, or who are being detained for technical parole violations such as failure to report and curfew violations.

The petition also requests that DPS be ordered “to cooperate and be responsive to the Hawaii Correctional Systems Oversight Commission requests with respect to reconsidering, lowering and monitoring the operational capacities” of the state’s correctional facilities.

“This was expressed in the last go-around in the order by Chief Justice (Mark E.) Recktenwald, who said the goal is design capacity,” Hayakawa said. “The design capacity, roughly, is one person, per cell. With the conditions today, we have three, sometimes four people in a cell, and they consider that operational capacity. The goal is design capacity, because that’s when people will be able to exercise some social distancing.

“Can you imagine being in a roughly a 10-foot-by-10-foot cell with three other individuals and, mask or no mask, you guys are breathing the same air all night?”

The petition cites an Aug. 11 Civil Beat article saying jail staffers reported “apparent lapses in protocols that are supposed to keep the pandemic out, such as inmates who were released to the general (jail) population before their 14 days (of quarantine) were up … .”

DPS Director Nolan Espinda admitted during Gov. David Ige’s Thursday media conference that not all inmates get a full 14-day quarantine period in the state’s jails.

“We isolate incoming inmates at all of our facilities,” Espinda said. “In our prisons, we have absolutely no problem in doing that because we have ample space to accommodate inmates who come in and have to quarantine for up to 14 days. As you might expect, our jails have been and continue to be grossly overcrowded. It is greatly difficult to accommodate a full 14-day quarantine at the varying jails on the four different islands.”

As for how the department plans to deal with the outbreak, Espinda said: “I would ask that everyone look at the plans of the individual facilities on our website.”

Hayakawa said despite assurances from DPS it has a pandemic protocol in place, he thinks his office is “not being informed.”

“They’re not keeping us up to date on what they’re doing and what’s going on,” he said. “… And there’s no way for us to find out if they really do have a plan and if it’s in action right now. We got 70 positives (Thursday) out of 110 inmates that were tested. So that’s very troubling.

“I think Espinda’s next move should be to get the healthy guys out, the people who have tested negative. He needs to get them out of there to … some remote location and set up tents, or whatever it is. We’ve been playing with the idea of locations, like maybe Aloha Stadium or some state property. Because they need to do mass testing, and they need to get the healthy guys out of there.”

The idea of a tent city for inmates is one that has been floated by Hawaii County Prosecutor Mitch Roth, who didn’t immediately return phone calls seeking comment. He said there is available room at Hawaii Community Correctional Center’s Hale Nani facility to accommodate such a set up.


HCCC hadn’t reported any positive coronavirus cases as of Wednesday. As of Aug. 3, the Big Island jail, which has a design capacity of 206 inmates, reported a population of 356.

Email John Burnett at

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