Deputy Public Defender Jon Ikenaga told the state Supreme Court on Wednesday the current COVID-19 situation in Hawaii’s jails and prisons is “significantly more dire” than in August 2020 when the court issued an order to decrease populations in correctional facilities in an attempt to stem the spread of the novel coronavirus.
The Office of the Public Defender petitioned the high court Aug. 27, asking the panel to order lower courts, the Department of Public Safety and the Hawaii Paroling Authority “to take immediate steps to significantly reduce the population of persons being held in Hawaii correctional facilities” to reduce the possibility of a potentially deadly COVID outbreak in jails and prisons.
“The situation in Hawaii correctional facilities places not only incarcerated persons at risk of death or serious illness, but the staff, service providers that work within these facilities, their families and the community at large,” Ikenaga said. “An outbreak within the facilities will affect the already strained resources of Hawaii’s hospitals and health care providers.”
The Department of Public Safety’s population report issued Monday showed most of the state’s jails and prisons have head counts significantly above the facilities’ design capacities.
At Hawaii Community Correctional Center in Hilo, Monday’s count was 278 inmates — 72 inmates or more than its design capacity of 206 inmates — an occupancy rate of 135%. That’s also 123% of its so-called “operating capacity” of 226 inmates, the figure DPS uses in its occupancy rate calculations.
Monday’s count was 40 inmates more than the Aug. 16 count of 238, the number included in the public defender’s petition.
According to DPS, 160 of HCCC’s inmates, or 58%, are pretrial detainees charged with but not convicted of a crime, while 139 are in the jail for felony offenses and 21 for misdemeanors.
“Many of these persons are being held simply because they cannot, they do not, have the means to post the bail that’s set,” Ikenaga said in response to a question by Associate Justice Michael Wilson. “The court has already made a determination that these persons could be out in the community. The only thing that is holding them is the inability to post cash bail — so in essence, we’re punishing persons in poverty.”
Several references were made to a preliminary settlement earlier this month in a federal class-action lawsuit brought by Hawaii inmates who allege state officials mishandled the pandemic and failed to protect them from COVID-19 outbreaks in prisons and jails.
Wilson referred to documents in that case alleging infected detainees were kept near a bathroom in HCCC that was flooded with urine and feces, and their requests to use the bathroom frequently denied, forcing them to urinate in their drinking cups.
The settlement established a five-person panel to oversee public health in correctional facilities and other measures to improve sanitation, hygiene and medical monitoring.
The state attorney general and all four county prosecutors the Public Defender’s petition, with Deputy Attorney General Craig Iha arguing against “blanket release orders.”
“Blanket releases don’t consider, for example, whether the inmate is vaccinated or not, whether the inmate has a safe place to live, whether there are other individualized determinations that need to be made with respect to the inmate,” Iha said.
As of Sept. 14, HCCC had an inmate vaccination rate of 56%, according to DPS. As of Wednesday, there were two reported active infections at the Hilo jail, four fewer than the previous day.
Iha opined that COVID clusters in jails don’t necessarily equate to a violation of an inmate’s constitutional right against cruel and unusual punishment.
“We now have readily available — including to inmates —a highly safe and effective vaccine that has been shown to prevent severe illness and death from COVID-19,” he said. “And it has also been shown to reduce infection with COVID-19. And on top of that, the (U.S. Centers for Disease Control and Prevention) reports that there is some evidence that even people with breakthrough infections might remain infectious for a shorter period of time. Which means that the vaccines also prevent the spread of COVID.
“Given that, there really is no reason for this court to order blanket releases when the most effective way to control COVID and to mitigate its harms is entirely within the control of the inmates themselves.”
Chief Justice Mark Recktenwald said the court will take the matter under advisement and issue its ruling at a later date.
Email John Burnett at jburntett@hawaiitribune-herald.com.