Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
05-JUN-2020
12:23 PM
SCPW-XX-XXXXXXX and SCPW-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
________________________________________________________________
SCPW-XX-XXXXXXX
OFFICE OF THE PUBLIC DEFENDER, Petitioner,
vs.
CLARE E. CONNORS, Attorney General of the State of Hawai‘i;
DONALD S. GUZMAN, Prosecuting Attorney, County of Maui;
MITCHELL D. ROTH, Prosecuting Attorney, County of Hawai‘i;
JUSTIN F. KOLLAR, Prosecuting Attorney, County of Kaua‘i;
DWIGHT K. NADAMOTO, Acting Prosecuting Attorney,
City and County of Honolulu, Respondents.
----------------------------------------------------------------
SCPW-XX-XXXXXXX
STATE OF HAWAI‘I OFFICE OF THE PUBLIC DEFENDER, Petitioner,
vs.
DAVID Y. IGE, Governor, State of Hawai‘i; NOLAN P. ESPINDA,
Director, State of Hawai‘i Department of Public Safety;
EDMUND (FRED) K.B. HYUN, Chairperson, Hawai‘i Paroling Authority;
Respondents.
________________________________________________________________
ORIGINAL PROCEEDING
DISSENT RE: ORDER CONCLUDING MATTERS
IN THIS CONSOLIDATED PROCEEDING
(By: Wilson, J.)
I. Introduction
The Novel coronavirus (“COVID-19” or “the virus”) is
spreading around the world at an alarming rate. On March 11,
2020, the World Health Organization declared a global COVID-19
pandemic and called for countries to take “urgent and aggressive
action.”1 As of March 27, 2020, the date of our initial order in
this case,2 the United States surpassed China in its number of
reported COVID-19 cases, with 93,568 reported cases and over
1,400 deaths.3 The number of reported cases in the United States
has since grown at a staggering rate. As of June 5, 2020, the
Center for Disease Control reported 1,842,101 total cases in the
United States—14,676 cases more than the day before.4 The virus
1
WHO Director-General’s Opening Remarks, WORLD HEALTH ORGANIZATION (Mar.
11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-
opening-remarks-at-the-world-health-assembly (last visited June 5, 2020).
2
Interim Order filed Mar 27, 2020.
3
Coronavirus Map: Tracking the Global Outbreak, N.Y. Times (updated Mar.
27, 2020), https://www.nytimes.com/interactive/2020/world/coronavirus-
maps.html?action=click&pgtype=Article&state=default&module=styln-
coronavirus&variant=show®ion=TOP_BANNER&context=storyline_menu?action=clic
k&pgtype=Article&state=default&module=styln-
coronavirus&variant=show®ion=TOP_BANNER&context=storyline_menu; Donald G.
McNeil Jr., The U.S. Now Leads the World in Confirmed Coronavirus Cases, THE
NEW YORK TIMES (Mar. 26, 2020), https://www.nytimes.com/2020/03/26/health/usa-
coronavirus-cases.html.
4
Cases in the U.S., CTRS. FOR DISEASE CONTROL & PREVENTION (June 5, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
2
has killed at least 103,700 people in the United States.5
Science and statistics constitute unequivocal evidence that
COVID-19 is a growing lethal threat to citizens in the United
States.6
As a result of the grave nature of this public health
threat, Hawai‘i is now in an officially declared state of
emergency. To protect Hawai ‘i’s citizens from the present threat
to human life, Hawai‘i Governor David Ige, and all four county
mayors in Hawai‘i, imposed a state of emergency and issued rules
and orders restricting daily activities of residents and
businesses.7
5
COVID-19 has killed more than twice the number of Americans killed in
the Vietnam War. David Welna, Coronavirus Has Now Killed More Americans Than
Vietnam War, NATIONAL PUBLIC RADIO (Apr. 28, 2020),
https://www.npr.org/sections/coronavirus-live-
updates/2020/04/28/846701304/pandemic-death-toll-in-u-s-now-exceeds-vietnam-
wars-u-s-fatalities.
6
Approximately twenty percent of people infected experience life-
threatening complications requiring hospitalization, and according to World
Health Organization director Tedros Adhanom Ghebreyesus, the death rate for
those infected is 3.4%. Brian Resnick and Christina Animashaun, Why COVID-19
Is Worse Than The Flu, IN ONE CHART, VOX (Mar. 18, 2020),
https://www.vox.com/science-andhealth/2020/3/18/21184992/coronavirus-covid-
19-flu-comparison-chart.
7
COVID-19 Emergency Proclamation, OFFICE OF THE GOVERNOR, STATE OF HAW. (Mar.
4, 2020), https://governor.hawaii.gov/wp-content/uploads/2020/03/2003020-GOV-
Emergency-Proclamation_COVID-19.pdf (last visited June 5, 2020);
Supplementary Proclamation, OFFICE OF THE GOVERNOR, STATE OF HAW. (Mar. 16, 2020),
https://governor.hawaii.gov/wp-content/uploads/2020/03/2003109-ATG_COVID-19-
Supplementary-Proclamation-signed.pdf (last visited June 5, 2020); Second
Supplementary Proclamation, OFFICE OF THE GOVERNOR, STATE OF HAW. (Mar. 21, 2020),
https://governor.hawaii.gov/wp-content/uploads/2020/03/2003152-ATG_Second-
Supplementary-Proclamation-for-COVID-19-signed.pdf (last visited June 5,
2020); Third Supplementary Proclamation, OFFICE OF THE GOVERNOR, STATE OF HAW. (Mar.
23, 2020),
(. . . continued)
3
On March 23, 2020, following the guidance of the
Hawai‘i Department of Health, Governor Ige issued an emergency
proclamation “Stay-at-Home Order” (“Order”) that provided
mandatory guidance to individuals, businesses, and operations
within the State of Hawai‘i. The Order carries “the force and
effect of law” pursuant to HRS § 127A-25, mandating that the
people of Hawai‘i follow strict social distancing guidelines in
order to prevent the spread of COVID-19.8
In Governor Ige’s Third Supplementary Proclamation,
issued March 23, 2020, he warns of “unmanageable strains on our
healthcare system and other catastrophic impacts to the State”
posed by “the dangers of COVID-19.” Third Supplementary
Proclamation at 1. The Governor ordered the State “to mandate
and effectuate social distancing measurers throughout the State
in order to reduce the spread of COVID-19.” Id. “All persons
(continued. . . )
https://governor.hawaii.gov/wp-content/uploads/2020/03/2003162-ATG_Third-
Supplementary-Proclamation-for-COVID-19-signed.pdf (last visited June 5,
2020) [hereinafter Third Supplementary Proclamation]; Public Health
Emergency Rules, Amended March 22, 2020, OFFICE OF THE MAYOR, CTY. OF MAUI (Mar.
22, 2020),
https://www.mauicounty.gov/DocumentCenter/View/121462/Amended-2020-3-22-
Mayors-Public-Health-Emergency-Rules (last visited June 5, 2020); Mayor’s
Emergency Rule #5, OFFICE OF THE MAYOR, CTY. OF KAUA‘I (Mar. 24, 2020),
http://www.kauai.gov/Portals/0/Civil_Defense/Emergency%20Proclamations/Mayor%
27s%20Emergency%20Rule%20%235_20200324.pdf; Mayors COVID-19 Second
Supplementary Emergency Proclamation, OFFICE OF THE MAYOR, CTY. OF HAW. (Mar. 24,
2020),
http://records.hawaiicounty.gov/WebLink/PDF/pfhqbtbqdexu2nzhtx1gt2nn/77/Mayor
s%20COVID-19%20Second%20Supplementary%20Emergency%20Proclamation.pdf.
8
Third Supplementary Proclamation, supra note 7.
4
shall maintain a minimum of six-feet of physical separation from
all other persons to the fullest extent possible.” Id. at 7.
Likewise, the Order requires that “businesses and operations
shall make hand sanitizer and sanitizing products readily
available for employees and customers.” Id.
In the week preceding the March 4, 2020 emergency
declaration by Governor Ige, a total of 106 cases were
confirmed. Since March 2, 2020, the number of cases has grown
to 652 statewide and seventeen people have died.9 The Department
of Health for the State of Hawai‘i warned Hawai‘i’s residents on
its website on June 1, 2020 that “Covid-19 is spreading
globally, nationally, and now locally.”10 To contend with the
emergency and prevent further spread of the virus among the
community, tourism has essentially been halted by the
requirement of a fourteen day quarantine for those who visit
Hawai‘i, restaurants are closed to all but take-out service, and
people are requested to stay at home whenever possible.11
9
Latest Cases in Hawai‘i, DISEASE OUTBREAK CONTROL DIV., STATE OF HAW. – DEP’T OF
HEALTH, https://health.hawaii.gov/coronavirusdisease2019/(last visited June 5,
2020).
10
Current Situation in Hawaii, DISEASE OUTBREAK CONTROL DIV., STATE OF HAW. –
DEP’T OF HEALTH, https://health.hawaii.gov/coronavirusdisease2019/what-you-
should-know/current-situation-in-hawaii/ (last visited June 5, 2020).
11
The dire nature of the measures taken to protect Hawai‘i’s people from
the COVID-19 emergency has caused unprecedented unemployment, with March 2020
unemployment claims increasing by 3,766.4% from the same month in 2019.
(. . . continued)
5
Preeminent among the protections identified as
emergency measures by the Governor to prevent the hyper-
contagious virus from rampantly spreading from person-to-person
is social distancing. All persons are directed to stay at a
distance of six feet from one another whenever practicable.12
Our community has rallied behind this common-sense method of
preventing infection, practiced by all branches of the Hawai‘i
State Government. To protect Hawai‘i’s elected leaders and the
members of the public from in-person contact at the Hawai‘i State
Capitol, the Hawai‘i State legislature suspended its current
session.13 The Hawai‘i State Judiciary has also instituted
practices of social distancing to protect judiciary employees
and the public from the spread of the COVID-19 infection.14
(continued. . . )
Olivia Peterkin, Hawaii unemployment reaches historic highs, PACIFIC BUSINESS
NEWS (Apr. 3, 2020). https://www.bizjournals.com/pacific/news/2020/04/03/
hawaii-unemployment-reaches-historic-highs.html.
12
Third Supplementary Proclamation, supra note 7.
13
After state Senator Clarence Nishihara tested positive for COVID-19,
the Hawai‘i legislature immediately closed and suspended the legislative
session. Senate President Ron Kouchi stated that “In an abundance of
caution, we just thought it would be better to send everybody home and then
let the Department of Health start its process[.]” State Capitol building
closes after senator tests positive for coronavirus, HAW. NEWS NOW (Mar. 19,
2020), https://www.hawaiinewsnow.com/2020/03/19/state-senator-tests-positive-
coronavirus-first-known-case-linked-state-capitol-building/.
14
On March 16, 2020, Chief Justice Mark Recktenwald issued an Order
limiting in-person court proceedings and directing “[e]ach judicial circuit
[to] issue orders and adjust court operations as warranted to address the
urgent and rapidly evolving public health conditions[.]” In the Matter of
the Judiciary’s Response to the COVID-19 Outbreak, SCMF-XX-XXXXXXX, at 2.
6
Nevertheless, the Majority order assumes that the emergency
conditions that caused this court to appoint a special master to
act proactively to avoid the spread of COVID-19 in Hawaii's
incarcerated community have passed.15 Majority Order at 3.
The incarcerated citizens of Hawai‘i are powerless to
comply with the Governor’s social-distancing directive. In
particular, the women and men held in custody within the O‘ahu
Community Correctional Center (“OCCC”) face a potential COVID-19
catastrophe due to overcrowding that prevents social
distancing.16 Three incarcerated people are often crowded into
15
The Majority reaches the conclusion that, “the rate of new infections
in Hawai‘i remains at very low levels”, presumably to make the point that an
emergency no longer exists. As noted, our state is in the grip of a
collapsing economy and state-wide social distancing that directly contradicts
the underlying assumption of the Majority’s order. The June 1, 2020
Department of Health warning that “Covid-19 is spreading globally,
nationally, and now locally,” recognizes that Covid-19 continues to spread as
the state awaits the eventual return of tourists from a world community in
the throes of the COVID-19 pandemic. The majority ignores the projections of
a second wave of COVID-19 infections emerging as communities begin to relax
the precautions taken in response to the first wave of COVID-19 infection.
Chelsea Davis, The struggle between reopening and preventing a second
wave of COVID-19 cases, Hawaii News Now (May 22, 2020),
https://www.hawaiinewsnow.com/2020/05/23/struggle-between-reopening-
preventing-second-wave-covid-cases/.
Len Strazewski, Harvard epidemiologist: Beware COVID-19's second wave
this fall, American Medical Association (May 8, 2020), https://www.ama-
assn.org/delivering-care/public-health/harvard-epidemiologist-beware-covid-
19-s-second-wave-fall.
16
Although this dissent focuses only on OCCC, the issue of achieving
social distancing applies to all correctional facilities in each of Hawai‘i’s
counties.
7
cells designed for two.17 The crowding is so extreme that one
prisoner must often sleep on the floor with his head next to the
toilet.18
According to the 2018 Final Report of the House
Concurrent Resolution Task Force on Prison Reform to the Hawai‘i
Legislature:
Hawai‘i’s prisons are old, dilapidated, and severely
overcrowded. Hawai‘i Community Correctional Center is
currently operating at 185% of capacity, Maui Community
Correctional Center is operating at 151% of capacity, Kaua‘i
Community Correctional Center is operating at 196% of
capacity, and OCCC is operating at 127% of capacity. At
OCCC, three prisoners are crowded into cells designed for
two. As a result, one of the prisoners must sleep on the
floor with his head next to the toilet. Faced with the
lack of available cells, OCCC has so many prisoners crowded
into one module that it is known as “Thunderdome.”
Conditions are so bad throughout the State that most
facilities probably do not meet minimum constitutional
standards.19
OCCC now contains approximately 823 incarcerated
citizens in a building designed to accommodate 628 incarcerated
people who are not facing the threat of the coronavirus.20 The
conditions posed by the level of crowding within the inmate
population are described by a doctor working within its
17
Final Report of the House Concurrent Resolution Task Force on Prison
Reform to the Hawaii Legislature (2019 Regular Session) 5-6, available at
https://www.courts.state.hi.us/wp-content/uploads/2018/12/HCR-
85_task_force_final_report.pdf (last visited Mar. 30, 2020).
18
Id.
19
Id.
20
Id.
8
confines. Doctor Pablo Stewart describes two or three inmates
in a cell:
I have observed that the vast majority of people
detained in OCCC are still triple-or at least double-
bunked in each cell, which remain dangerously filthy.
Making matters worse, correctional staff themselves
do not practice social distancing or adhere to proper
hygiene protocols.21
In his capacity as a doctor providing care in OCCC
since July 2019, Dr. Stewart visits OCCC four times a week. He
has become “intimately familiar” with OCCC and the response of
the Department of Public Safety to the virus. It is his
conclusion that, notwithstanding reports of a decrease in prison
population, “people are still crammed two or three to a cell,
and hygiene conditions remain abysmal.”22
21
Declaration of Pablo Stewart, M.D., filed April 13, 2020 in
SCPW-20-213 at 5.
22
The Declaration of Pablo Stewart states in relevant part:
I am intimately familiar with DPS correctional
facilities. Since July 2019, I have been working as
the attending psychiatrist supervising psychiatric
residents from the John A. Burns School of Medicine
Department of Psychiatry, where we provide
psychiatric care to people detained at [OCCC]. Also,
since the middle of March 2020, I have been visiting
and providing care at OCCC at least four times per
week. I thus have become familiar with the jail’s
conditions and DPS’s response to the novel
coronavirus.
. . . .
It is from this unique vantage point-as someone who
has over three decades of correctional health care
experience, who serves as a court-appointed monitor
in a prison conditions lawsuit, and who has been
inside OCCC as recently as this morning—that I share
(. . . continued)
9
As an experienced court-appointed monitor of prison
conditions, Dr. Stewart states that the inmates are not able to
practice social distancing. The incarcerated population of OCCC
at the time of his April 13, 2020 observations was approximately
23
the same as it is now. As a consequence of the failure to
achieve a population reduction sufficient to permit social
distancing, Dr. Stewart warns “the present efforts to safeguard
against a COVID-19 outbreak within DPS facilities are
dangerously inadequate.” Thus, he specifically rejects the
conclusion of the Majority that the emergency threat of
coronavirus within OCCC has ended:
(continued. . . )
my observations about DPS’s efforts to address COVID-
19 within its correctional facilities.
. . . .
[W]hile I have heard of DPS reports stating that the
OCCC population is smaller than it was a month ago,
one would not know that from visiting the facility.
As a clinician who moves throughout the facility
almost daily, I have not observed any appreciable
reduction in the jail population. The end result is
that detainees are no more able to maintain social
distance and proper hygiene today than they were one
month ago.
Id. at 3-6.
23
The April 8, 2020 Population Report stated that OCCC housed 942
inmates. Initial Summary Report of the Special Master at 27 (Apr 9, 2020).
By contrast, the May 28 Fifth Summary Report and Recommendation of the
Special Master stated that the population at OCCC was 823, a population of
195 above the design capacity. Fifth Summary Report and Recommendations of
the Special Master at 4 (May 28, 2020). [hereinafter Fifth Summary Report].
10
DPS’s April 9, 2020 advisory notes that OCCC saw a
295-person reduction in its jail population between
March 2, 2020 and April 9, 2020 (i.e., from 1201 to
906). See https://twitter.com/HawaiiPSD/status/
1248441500901335041. But, based on my OCCC visit
this morning—i.e., on April 13, 2020—this reduction
comes nowhere near to allowing for adequate COVID-19
protocols to be implemented. People are still
crammed two or three to a cell, and hygiene
conditions remain abysmal.
. . . .
In short, the present efforts to safeguard against a
COVID-19 outbreak within DPS facilities are
dangerously inadequate. I urge the Court not only to
take action to reduce the jail and prison
populations, but to do so immediately.
Id. at 8. (emphasis in original).
To protect the inmate population from “the likelihood
of a devastating outbreak” and achieve social distancing Dr.
Stewart concluded that a population reduction to design capacity
is necessary:
It is clear to me that a much more significant
population reduction must be achieved within DPS
facilities. I spent time over the past week
reviewing the relevant data on DPS jails and prisons.
Based on that review, and my thirty-plus years of
expertise in correctional health care oversight, it
is my opinion that the first step that the Court
should take is to impose on all stakeholders the
mandatory goal of reaching 100% of design bed
capacity.
Id. (emphasis in original).
Consistent with the recommendation of Dr. Stewart,
reduction of the incarcerated population at OCCC to design
capacity of 628 has been endorsed by this court. To achieve
social distancing, this court appointed a special master on
April 2, 2020; his scope of work was to “include setting forth
11
guidelines to ensure that the State’s correctional centers and
facilities are in compliance with social distancing mandates.”24
Consistent with the purpose of achieving social distancing
within the inmate population, on April 15, 2020 this court
ordered that “[e]fforts shall be undertaken to reduce the inmate
population of correctional centers and facilities to design
capacity.” Second Interim Order filed April 15, 2020. Nine days
later, we again ordered that “efforts shall continue to be
undertaken to reduce the inmate population of correctional centers
and facilities to design capacity.” Third Interim Order filed
April 24, 2020.
Meaningful progress toward achieving the design capacity
of 628 inmates at OCCC did not occur by April 24, 2020.25 To date,
the inmate population remains over the design capacity. As
24
Order of Consolidation and for Appointment of Special Master (By:
Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson JJ.) April 2,
2020.
25
“There has not been a meaningful decrease in the number of inmates held
at the Oahu Community Correctional Center since the initial report of the
special master was filed on April 9, 2020. On April 13, 2020, the head count
was 909 and the assigned count was 993. One week later, on April 20, 2020,
the population had increased to a head count of 916 and an assigned count of
1018.” Department of Public Safety weekly population report April 13, 2020
and April 20, 2020. A chart in the April 23, 2020 report of the special
master lists the inmate population on April 23, 2020 as 838 at OCCC—a number
that is not identified as either a head count or an assigned count.
This court has ordered: “Efforts shall continue to be undertaken to
reduce the inmate population of correctional centers and facilities to design
capacity.” The design capacity of OCCC is 628 inmates. Id. As noted, on April
13, 2020, the head count for OCCC was 909 and, utilizing the chart in the
most recent special master’s report, the population has decreased no more
than seventy-one incarcerated citizens since April 13, 2020.” Concurrence
Re: Interim Order (By: Wilson J.), April 24, 2020.
12
described by Dr. Stewart’s declaration, the population at OCCC
remains dangerously overcrowded. In the 21 days, from May 8 to May
29, 2020, the population increased by 58 inmates for a total of 823
incarcerated women and men. Crowding of cells with up to three
inmates has continued. On May 13, 2020, with a population of less
than the present population of 823, the Department of Public Safety
acknowledged conditions “with up to 3 inmates per cell depending on
the daily population.”26
In the most recent May 28, 2020 Fifth Report of the
Special Master, the special master acknowledged that “this process
as mandated by the court has been difficult for all involved”. The
special master noted that communications between the parties had
broken down and achievement of design capacity at OCCC to
accomplish social distancing among inmates would not be
successfully resolved through mediation.27 The Hawai‘i State Public
Defender and the Oversight Commission28 consider attainment of
design capacity to be essential, while the Attorney General and
26
The incarcerated population on May 13, 2020 was 758. Exhibit 1 Fourth
Summary Report and Recommendations of the Special Master, letter of Public
Safety Director Nolan Espinda to Special Master (May 15, 2020).
27
“As of this date, the parties’ attempts to resolve this matter through
mediation have not been successful”. Fifth Summary Report, supra 23 at 3.
28
Hawai‘i Correctional Systems Oversight Commission, which was established
by the Hawai‘i State Legislature pursuant to Act 179, Session Laws Hawai‘i
2019, to, among other things, establish the capacities for all Hawai‘i
correctional facilities and policies and procedures to prevent the inmate
population from exceeding the capacity of each correctional facility.
13
county prosecutors from O‘ahu, Maui and Hawai‘i oppose any further
reduction in population through further release.
Notably, the special master describes a process that,
through the innovative collaboration between parties, has already
achieved a reduction of the inmate population with an unusual and
promising level of protection to public safety:
The criticism of the recidivism rate on early
releases has not taken into consideration what the
recidivism rate was prior to the COVID-19 early
releases. According to a report of the State of
Hawai‘i Interagency Council on Intermediate Sanctions
(July 2018), the average recidivism rate for those
released on probation, parole and upon the completion
of their sentences is around 50%. Whereas it is too
soon to judge the recidivism rate of COVID-19 early
releases, about 650 inmates were released and,
according to some news outlets, 50 to date have been
returned with new charges. That is about an 8%
recidivism rate to date, assuming all new charges
result in convictions.
Fifth Summary Report at 7.
The special master describes the successful attainment
of an eight percent recidivism rate for the over 650 inmates
released from incarceration state-wide. The result of the
process of release ordered by this court,29 as calculated by the
special master, is a dramatic reduction from the normal
recidivism rate of fifty percent to an eight percent recidivism
rate–a change that represents far greater protection of the
public from repeat criminal activity by the 650 released
29
Every release occurred only after judicial review of the circumstances
and facts pertaining to each case—with every adjudication being made only
after input from defense counsel and the prosecutor.
14
citizens as compared to the normal reoffending rate for the
population of released inmates. The reason for this unusually
low recidivism rate is eluded to by the special master as being
a result of constructive collaboration:
The parties and stakeholders have acted
admirably under difficult circumstances in carrying
out this Court’s orders. Differences among them have
been great at times, but all have done their best to
work in a collaborative fashion as encouraged by this
Court, despite their differences.
Id. at 12.
The thorough, informed process of review that preceded
the successful release of 650 inmates state-wide is a
demonstrated means by which the population of OCCC can be
further reduced—safely-- to design capacity.
II. The Special Master Must Be Permitted to Make Recommendations
In Accordance with the Order of this Court that Are Not
Conditioned on the Agreement of the Parties.
It is apparent from the special master’s observations
and accomplishments in reducing the inmate population thus far,
that achieving the original intent of this court’s order is
attainable. The special master recommends “the parties to
continue to work in a collaborative manner to reduce and
maintain inmate population levels set by this Court, or by the
Oversight Commission should this Court defer to the Commission
on this matter”. Id. at 12. However, the special master notes
that an impasse to achieving inmate population levels has arisen
and he is prevented from recommending necessary solutions by his
15
perception that his recommendations can only be based on
consensus. As a consequence, he has thus far declined to
provide recommendations to this court with which the parties do
not agree:
Because the Special Master has been mandated to work
in a collaborative manner with the parties and
stakeholders, and conduct mediation among the parties
when appropriate, the Special Master cannot pick a
side in these proceedings when the parties differ,
while continuing to work collaboratively with the
parties consistent with the orders of this Court. The
Special Master has endeavored to work with the
parties in an evenhanded manner while carrying out
the orders of this Court.
Fifth Summary Report at 12.
Thus, the special master is not aware that he does in
fact have the authority and duty to provide this court with his
independent recommendations regardless of whether the parties
agree. His appointment purpose as stated in this court’s
original order appointing the special master is to “effectuate
the goals of these consolidated proceedings, even without
agreement of all parties.”30 The special master has an important
responsibility to provide this court with independent
recommendations not conditioned on consensus. Informed by his
two months of active service, the recommendations of the special
master could be of great benefit to the court and the community
30
Order of Consolidation and for Appointment of Special Master (By:
Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson JJ.) (Apr. 2, 2020)
at 7.
16
to counter the threat of COVID-19 posed by (1) present
conditions of incarceration and (2) an increased likelihood of
infection among incarcerated citizens from the return of
visitors from the United States and abroad.
The special master’s constructive communication with
problem solving community groups and vigilant concerned
community leaders31 uniquely positions him to provide innovative
candid recommendations—recommendations that could prove critical
to resolving the COVID-19 emergency in our correctional
institutions. The special master’s commitment to overcome the
present impasse and achieve conditions of incarceration
permitting social distancing is reflected in his recommendation
that he submit a further report on June 11, 2020. It is evident
that to forego the special master’s report and his independent
recommendations that will be forthcoming in only seven days
would be a rush to judgment at great sacrifice to achieving
constitutionally safe conditions for incarcerated citizens.
31
The Fifth Master’s report recounts active input and communication with
the State House Committee on Public Safety, Veterans & Military Affairs, the
Attorney General, prosecutors from Honolulu, Maui, and Hawaiʻi, the Hawaiʻi
State Public Defender, the Hawaiʻi Correctional System Oversight Commission,
and the Emergency Reentry Project.
17
III. Reduction of the Population of Incarcerated Citizens at
OCCC is Necessary to Prevent the Spread of the COVID-19, Remedy
Constitutional Violations, and Protect the Community.
Incarcerated citizens have a constitutional right to
be free from cruel and unusual punishment. U.S. Const. amend.
VIII; Haw. Const. art. I, § 8 (incorporating the same). To
establish a violation of the Eighth Amendment, an inmate must
show that prison officials are “knowingly and unreasonably
disregarding an objectively intolerable risk of harm, and that
they will continue to do so . . . into the future.” Farmer v.
Brennan, 511 U.S. 825, 846 (1994).
The “deliberate indifference” needed to establish an
Eighth Amendment violation must be examined “in light of the
prison authorities' current attitudes and conduct,” Helling v.
McKinney, 509 U.S. 25, 36 (1993), which means “their attitudes
and conduct at the time suit is brought and persisting
thereafter[.]” Farmer, 511 U.S. at 845. The U.S. Supreme Court
has held that overcrowding in a prison that deprives “prisoners
of basic sustenance, including adequate medical care[,]”
violates a prisoner’s right to be free from cruel and unusual
punishment under the Eighth Amendment. Brown v. Plata, 563 U.S.
493, 511 (2011) (“Just as a prisoner may starve if not fed, he
or she may suffer or die if not provided adequate medical
care”). Courts have a responsibility to remedy Eighth Amendment
violations when jails are overcrowded and inmates are not
18
receiving adequate medical care. Id. (“If government fails to
fulfill this obligation, the courts have a responsibility to
remedy the resulting Eighth Amendment violation”). Although
courts must consider public safety in ordering inmate releases,
“[c]ourts may not allow constitutional violations to continue
simply because a remedy would involve intrusion into the realm
of prison administration.” Id. at 511. Additionally, courts
and state officials “must bear in mind the need for a timely and
efficacious remedy for the ongoing violation of prisoners’
constitutional rights.” Id. at 543.
In Plata, the Court concluded that the overcrowding of
inmates bred unconstitutional conditions within the prison:
inadequate medical care that resulted in death, the increased
incidence of infectious disease, and needless pain and
suffering. 563 U.S. at 519-20. Thus, the Court held that
remedial measures to cure the cruel and unusual conditions in
the California prisons were warranted. Id. To remedy the
violation of the incarcerated populations’ right to be free from
cruel and unusual punishment, the United States Supreme Court
upheld the lower court’s order placing a cap on the prison’s
population. Id. at 545. The Supreme Court concluded that
courts may enter an order placing limits on prison populations
when medical care cannot adequately meet the demands of an
overcrowded inmate population. Id. The Court capped the prison
19
population to cure and prevent Eighth Amendment violations, and
thus had the “effect of reducing or limiting the prison
population” by up to “46,000 persons.” Id. at 510-11.
The threat to the incarcerated citizens of OCCC is
more dire than the threat to California’s incarcerated citizens
in Plata. As in Plata where the correctional facilities in
California were operating in excess of their design capacity and
therefore exposing inmates to overcrowding that caused death and
harm, 563 U.S. at 502, OCCC is also operating significantly in
excess of its capacity, thus creating similar unconstitutional
conditions; inmates are crowded two to three in a cell and
unable to social distance. However, in this case, the current
COVID-19 pandemic is a more lethal threat—an officially declared
state and national emergency—that eclipses the cruel and unusual
conditions of overcrowding and inadequate medical care at issue
in Plata. The conditions in Plata did not include the
potentially lethal threat of Covid-19.
Incarcerated citizens are exposed to the threat of
contracting COVID-19 at a rate significantly higher than someone
in the general community.32 The speed with which the virus moves
through prisons and jails is rapid, with many infected people
32
See, e.g., COVID-19 infection rate on Rikers Island is 7 times higher
than citywide according to the Legal Aid Society, CBS N.Y. (Mar. 20, 2020)
https://newyork.cbslocal.com/2020/03/26/coronavirus-rikers-island/.
20
spreading the virus before ever showing symptoms. For example,
the virus spread through Rikers Island jail (“Rikers”) in New
York from one inmate to 167 in just ten days.33 In the same
period of time, the virus infected 137 Rikers staff members.34
Jails and prisons are “basically a system designed to spread
communicable disease,”35 unless corrective and preventative
action is taken. Whether the state of Hawai‘i is acting with
deliberate indifference to the threat of COVID-19 is a threshold
issue dependent in part on the recommendations and observations
of the special master.
Courts throughout the United States have acted
promptly in response to the threat the coronavirus poses to
incarcerated people. Cuyahoga County, Ohio, dropped the county
jail population from nearly 1,900 to less than 1,300 “in a
matter of days”, with Cuyahoga County Presiding Judge Brendan J.
Sheehan noting that “[w]e really compacted the time frame.”36
Likewise, New Jersey released as many as 1,000 people from its
33
Jennifer Gonnerman, How Prisons and Jails Can Respond to the
Coronavirus, NEW YORKER (Mar. 14, 2020), https://www.newyorker.com/news/q-and-
a/how-prisons-and-jails-can-respond-to-the-coronavirus.
34
Id.
35
Id.
36
Kimberly Kindy, Disaster waiting to happen: Thousands of inmates
released as jails and prisons face coronavirus threat, WASH. POST (Mar. 25,
2020), https://www.washingtonpost.com/national/disaster-waiting-to-happen-
thousands-of-inmates-released-as-jails-face-coronavirus-
threat/2020/03/24/761c2d84-6b8c-11ea-b313-df458622c2cc_story.html.
21
jails to address the risks of the highly contagious coronavirus
spreading among the incarcerated population.37 New Jersey’s
chief justice, Stuart Rabner, signed an order releasing inmates
jailed for probation violations as well as those convicted in
municipal courts or sentenced for low-level crimes in Superior
Court.38
IV. Reduction of OCCC Population to Design Capacity.
Releasing incarcerated nonviolent citizens to achieve
numbers sufficient to reduce the population of OCCC to its
design capacity of 628 is straightforward. With a present
inmate population of 823 people, the release of approximately
194 women and men can be achieved with due consideration for
public safety by: (1) releasing low-risk pretrial detainees and
placing them on court supervised release; (2) releasing low-risk
inmates who are close to finishing their sentences either by
modifying their sentence to end without further incarceration;
(3) modifying the remaining sentence of nonviolent offenders to
be served as a period of probation; or (4) transferring inmates
to other custodial settings.
37
Tracey Tully, 1,000 Inmates Will Be Released From N.J. Jails to Curb
Coronavirus Risk, N.Y. TIMES (Mar. 23, 2020), https://www.nytimes.com/
2020/03/23/nyregion/coronavirus-nj-inmates-release.html?smid=em-share.
38
Id.
22
The length of sentence for nearly every inmate in OCCC
is presently less than twelve months. With rare exceptions, all
sentences being served are either as a result: (1) of a
conviction for a nonviolent Class C felony with no more than a
year remaining on a probationary sentence; (2) a misdemeanor
punishable for no more than a year in jail,39 or; (3) a petty
misdemeanor punishable by no more than thirty days in jail.40
Thus, each inmate currently serving a sentence at OCCC will have
finished their sentence within twelve months, even without an
early release in the face of the threat of COVID-19.
Low-risk nonviolent offenders should be released
and/or be subject to an alternative probationary sentence. To
subject citizens presently serving terms for petty misdemeanors,
misdemeanors, or non-violent class C felonies to the lethal
threat of COVID-19, notwithstanding the availability of an
alternative probationary sentence, is an unconstitutional
violation of their right to be free from cruel and unusual
punishment.
Faced with the threat to their lives, and the
inability to engage in social distancing amidst the coronavirus
39
See HRS § 701-107(3) (providing that misdemeanors are punishable by a
maximum imprisonment of one year).
40
See HRS § 701-107(4) (providing that petty misdemeanors are punishable
by a maximum imprisonment of thirty days).
23
pandemic, no benefit to the community is achieved from continued
incarceration of those serving time for a petty misdemeanor, a
misdemeanor, or a nonviolent class C felony. Commission of a
petty misdemeanor, a misdemeanor, or a nonviolent class C felony
does not warrant as punishment the exposure to a virus that will
possibly kill the incarcerated citizen, and will likely require
expenditure of valuable life-saving medical resources. Inmates
serving terms for petty misdemeanor, misdemeanors, or nonviolent
class C felonies can have their sentences modified to allow
completion of the remaining sentence on court supervised
probation, or to be released based on the time served on the
sentence. Protection of the public is provided by adjudication
of every proposed release.
The remaining incarcerated citizens at OCCC are
pretrial detainees who have not been convicted of a crime; they
are citizens presumed to be not guilty, who are awaiting trial
in jail because they could not afford to post bail. To subject
citizens arrested for, but not convicted of, petty misdemeanors,
misdemeanors, or nonviolent class C felonies to the lethal
threat of COVID-19 because they are unable to post bail is an
unconstitutional violation of their right to be free from cruel
and unusual punishment.
The jailing of (1) citizens awaiting trial for
nonviolent offenses and (2) nonviolent offenders with less than
24
a year remaining on their sentences not only contributes to the
vast overcrowding in Hawai‘i correctional facilities and
increases the risk to inmates of contracting COVID-19, their
incarceration also threatens: (1) the health and safety of
correctional workers and public defenders who share the company
of the incarcerated citizens; (2) the state’s limited medical
teams whom would have to respond to a coronavirus outbreak
emergency in the correctional facilities and hospitalize
inmates; and (3) the state’s limited medical supplies and
testing kits.
V. CONCLUSION
The special master recognizes the impasse to resolving
the coronavirus emergency at OCCC, and nonetheless recommends
that the parties continue to work to reduce and maintain
population levels set by this court. In so doing he notes the
difficulty of resolving the COVID-19 threat if he is constrained
to offer only recommendations arrived at by consensus.
Fortunately, the special master was provided just the authority
he mistakenly laments that he is without—the authority to
“effectuate the goals of these consolidated proceedings, even
without agreement of all parties.” So empowered, and with the
experience of two months of hard and productive work, he should
be permitted to submit his independent recommendations about how
to resolve the emergency faced by Hawai‘i’s incarcerated women
25
and men. Perhaps the reaffirmation of the importance of
independent authority will be reason for a future special
master--faced with the present emergency and the increased risk
of infection from an imminent influx of tourists--to perform an
independent site visit of OCCC to see first-hand the crowding
and social distancing, if any, employed by inmates and
correctional workers.
The alternative chosen by the Majority--to declare
success and claim contrary to the evidence and the Governor’s
emergency orders that the emergency is at an end--perpetuates
without justification the lethal risk of infection to those who
are held sometimes three to a cell during the coronavirus
pandemic emergency. The emergency identified by the Governor
and specifically described within OCCC by Dr. Stewart requires
this court to 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.
Dated: Honolulu, Hawai‘i, June 5, 2020.
/s/ Michael D. Wilson
Associate Justice
26