Advocates concerned inmates’ rights are being violated under current virus mandates

  • WISCH

  • SHIGETOMI

  • WALTJEN

Hawaii Community Correctional Center is in its fourth month of a COVID-19 lockdown which includes a halt to transportation of inmates for court hearings.

That, coupled with the suspension of grand jury panels and jury trials statewide, is causing concern about the lockdown’s effects on Big Island court cases.

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The state Supreme Court on Aug. 19 issued an order temporarily suspending deadlines for the start of a preliminary hearing — a proceeding to determine probable cause to try a defendant.

Normally, courts are required to begin a preliminary hearing no more than two days after the initial appearance of a defendant who is in custody and within 30 days for a defendant who is not in custody.

The court’s order said HCCC “currently remains in lockdown with no transports occurring.” Transportation of inmates stopped in late May when the lockdown began.

The high court’s order is in effect until Oct. 4, the same date the suspension of jury trials and grand jury panels is set to expire.

“The order did encourage that the courts try to follow the rule … to the extent possible,” said Deputy Prosecutor Kelden Waltjen. “But they asked them to utilize remote technology. I think one of the issues we’ve been having is there are inmates who refuse to make appearances virtually.”

Keith Shigetomi, supervising attorney of the Public Defender’s office in Hilo, said defendants “have the right to be physically present” at preliminary hearings.

“And that’s a court rule, Rule 43. Anytime there is evidence being presented, you have a right to be present in the courtroom,” he said. “… Their right to a speedy trial is being affected. Their right to a determination of probable cause is being affected.”

Shigetomi also noted the Hawaii Paroling Authority issued a directive last week making vaccinations a condition of parole.

“I think it’s an infringement of (the inmate’s) right to privacy,” he said. “Personally, I believe in vaccination, but I also feel that you have the right to say, ‘Hey, I have the right to control what happens to my body.’ To make it a condition of release, it’s like you either get vaccinated or you stay in. I think that’s improper because you need a lesser intrusion, a reasonable accommodation.”

While the numbers of COVID-infected individuals at HCCC are far fewer now than they were in May, the Department of Public Safety said HCCC had eight positive inmate tests last week.

“Any facility experiencing an outbreak may impose a transport suspension” which falls in line with federal and state recommendations for mitigating spread of COVID-19 to inmates within the facility, as well as to people in the community, DPS spokeswoman Toni Schwartz said.

“All facilities have access to video conferencing with the courts and will work with the courts to facilitate the video conferencing alternative when the judge requests it,” she said.

Meanwhile, the Office of the Public Defender on Aug. 27 petitioned the Supreme Court, asking it to order courts, DPS and the paroling authority “to take immediate steps to significantly reduce the population of persons being held in Hawaii correctional facilities” to lessen the possibility of a potentially deadly COVID outbreak in jails and prisons.

“We’re asking that the court reorder what it had previously ordered,” Shigetomi said. “We’re not expanding the parameters of the request. It’s simply to have the court recognize the emergency of the situation.”

An order by the high court during a previous spike in cases in August 2020 directed all neighbor island jails, including HCCC, to release inmates awaiting trial for, or convicted of, nonviolent offenses.

Appellants — including the DPS, the paroling authority, attorney general and the four county prosecutors — have until Tuesday to file a reply to the current petition with the Supreme Court.

“Our office intends to file in opposition,” Waltjen said.

He noted HCCC’s inmate population of 238 on Aug. 16, which was included in the petition, is only 105% of its operating capacity of 226 inmates.

“That’s a substantial reduction, given the longstanding overcrowding issues” in HCCC, Waltjen noted.

Of those inmates, 131 were pretrial detainees charged with felonies, and 17 were pretrial detainees facing misdemeanor charges.

The American Civil Liberties Union of Hawaii said Thursday it supports the public defender’s petition.

“First, the largest COVID outbreaks in Hawaii have consistently occurred in our jails and prisons, and the only way that is going to stop is by decreasing the population so that people have a chance to socially distance,” said Joshua Wisch, ACLU Hawaii executive director.

“Second, at any given time, 50% or more of the people who are incarcerated in our jails are pretrial detainees who — if they could afford bail — would be at home preparing for trial.

“Keeping people in jail simply because they do not have enough money to get out is never okay and during a pandemic is unconscionable.”

Wisch also weighed in on the paroling authority’s vaccination requirement for parole, calling it “problematic and troubling.”

“Respectfully, the assertion by the Hawaii Paroling Authority that ‘this requirement will help reduce the spread of infection within the correctional facilities and safeguard our businesses, families and the community at large’ is illogical and poses serious questions of legality.

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“Keeping people inside our jails will increase the spread of infection, not reduce it.”

Email John Burnett at jburnett@hawaiitribune-herald.com.

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