Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
24-APR-2020
06:05 PM
SCPW-XX-XXXXXXX and SCPW-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
SCPW-XX-XXXXXXX
OFFICE OF THE PUBLIC DEFENDER, Petitioner,
vs.
CLARE E. CONNORS, Attorney General of the State of Hawaiʻi;
DONALD S. GUZMAN, Prosecuting Attorney, County of Maui;
MITCHELL D. ROTH, Prosecuting Attorney, County of Hawaiʻi;
JUSTIN F. KOLLAR, Prosecuting Attorney, County of Kauaʻi;
DWIGHT K. NADAMOTO, Acting Prosecuting Attorney, City and County
of Honolulu, Respondents.
----------------------------------------------------------
SCPW-XX-XXXXXXX
STATE OF HAWAIʻI OFFICE OF THE PUBLIC DEFENDER, Petitioner,
vs.
DAVID Y. IGE, Governor, State of Hawaiʻi; NOLAN P. ESPINDA,
Director, State of Hawaiʻi Department of Public Safety;
EDMUND (FRED) K.B. HYUN, Chairperson, Hawaiʻi Paroling Authority,
Respondents.
ORIGINAL PROCEEDING
THIRD INTERIM ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.,
and with Wilson, J., also concurring separately)
On April 23, 2020, in response to this court’s April
15, 2020 interim order, Special Master Daniel R. Foley (“Special
Master”) filed his second summary report and recommendations
(“Second Interim Report”). The Second Interim Report provides
updated population numbers and details the efforts that have
been undertaken since the initial summary report and initial
recommendations were filed. The Second Interim Report also
attaches as exhibits the Department of Public Safety’s (“DPS”)
weekly population reports (dated April 13, 2020 and April 20,
2020), a letter from the Office of the Public Defender (“OPD”)
apprising the Special Master of its efforts to comply with this
court’s April 15, 2020 Interim Order and stating some concerns,
the Hawaiʻi Paroling Authority’s progress report (dated April 22,
2020), a letter from the Hawaiʻi Correctional Systems Oversight
Commission to DPS Director Nolan Espinda (dated April 10, 2020)
and DPS’s response letter (dated April 17, 2020), and a letter
from the Hawaiʻi Correctional Systems Oversight Commission to the
Special Master (dated April 21, 2020) stating some concerns.
Upon consideration of the Second Interim Report,
including the exhibits, and the record,
IT IS HEREBY ORDERED that:
1. The Special Master shall continue to work with
the parties, the amici, and the many stakeholders to
expeditiously address the issues in this original proceeding in
an effort to facilitate a collaborative resolution while
protecting public health and public safety. Efforts shall
continue to be undertaken to reduce the inmate population of
correctional centers and facilities to design capacity.
2
2. We reiterate and clarify previous directives of
the court:
a. We have expressly stated that this court’s
orders do not affect DPS’s authority under the law to release
inmates on its own accord. Any deferral by DPS to this court
with regards to population relief efforts would be contrary to
this court’s directive. DPS should continue its efforts to
implement population relief proposals and any other measures
within its authority to ensure public health with respect to the
COVID-19 pandemic.
b. Pursuant to paragraph 4 of the April 15,
2020 Interim Order, this court directed DPS to inform inmates of
various additional conditions of their release and the inmate’s
continuing obligation to abide by the conditions of release.
Upon an inmate’s release, DPS shall provide the inmate a copy of
paragraph 4 of the April 15, 2020 Interim Order. The inmate is
not required to sign that document nor is it required that the
document be filed with the court. Any court orders containing
such a requirement are superseded by this order.
c. As provided in paragraph 2.c. of the April
15, 2020 Interim Order, release shall be presumed, unless the
court finds that the release of the inmate would pose a
significant risk to the safety of the inmate or the public.
d. As provided in paragraph 4.f. of the April
15, 2020 Interim Order, a verified residence for an inmate
should not be required in every case. Specifically, whether a
verified residence for an inmate will be required in a specific
case is left to the discretion of the judge, but alternative
means of maintaining contact such as telephone, probation review
hearings, or scheduled contacts with probation officers may also
be employed by the court. Judges are required to make
individualized determinations and must not require verified
3
residences for defendants, unless such a condition is supported
by specific factual findings in an individual case.
3. DPS shall file a brief explanation of the
definitions of “head count” and “assigned count” reflected in
its population reports and the reason for the different
designations.
4. To the extent it has not done so already, DPS
shall provide protective masks to each inmate as soon as
possible. Inmates in custody must wear protective masks when
transported outside a correctional center or facility.
5. The Special Master may file reports or
recommendations for orders to this court as he deems
appropriate, but shall file another summary report with any
recommendations on April 30, 2020. In his discretion, the
Special Master may file confidential documents under seal.
6. This order does not limit the continued
collaborative and ongoing efforts currently being undertaken to
reduce the inmate populations.
7. This court reserves its authority to order other
measures based on changed circumstances.
DATED: Honolulu, Hawaiʻi, April 24, 2020.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
4