Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
14-AUG-2020
06:25 PM
SCPW-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
IN THE MATTER OF INDIVIDUALS IN CUSTODY
OF THE STATE OF HAWAIʻI
ORIGINAL PROCEEDING
INTERIM ORDER
(By: Recktenwald, C.J., Nakayama, and McKenna, JJ.,
and Chief Judge Ginoza, assigned by reason of vacancy, with
Wilson, J., dissenting 1)
On August 12, 2020, the Office of the Public Defender
(“OPD”) filed a petition for extraordinary writ pursuant to HRS
§§ 602-4, 602-5(5), and 602-5(6) and/or a writ of mandamus
(“Petition”). The Petition seeks, among other things, a
reduction of the inmate populations at the State’s correctional
centers and facilities in an effort to mitigate the harm that
the COVID-19 pandemic may inflict upon the inmates, the
correctional staff, and the people of Hawai‘i. In this regard,
the Petition seeks the expedited release of certain categories
of inmates from the State’s correctional centers and facilities,
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A dissent by Wilson, J., is forthcoming.
without the filing and hearing of individualized motions for
release. At the time the petition was filed, it was reported
that more than 80 inmates and at least twelve staff members had
tested positive for COVID-19 at the O‘ahu Community Correctional
Center (“OCCC”).
By order entered on August 13, 2020, this court
directed the Department of Public Safety (“DPS”) and Dwight
Nadamoto, the Prosecuting Attorney for the City and County of
Honolulu (“Prosecuting Attorney Nadamoto”), to file an answer to
the Petition solely with respect to OCCC. In the answer, DPS
and Prosecuting Attorney Nadamoto were to address the process
that should be implemented to facilitate the release of the
category of defendants requested in the Petition, should the
court allow for such release, including: the COVID-19 screening
process; the mechanism for providing the COVID-19 testing
information to the court for each defendant identified for
release; how positive, negative, and pending test results should
be handled; the expected time frame to effectuate these steps;
and any other issues that may be implicated by the requested
release. DPS and Prosecuting Attorney Nadamoto timely answered.
On August 14, 2020, this court held a hearing to
address the Petition and the COVID-19 situation at OCCC.
Appearing at the hearing were: Susan Arnett on behalf of the
OPD; Clare Connors on behalf of DPS, along with DPS Director
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Nolan P. Espinda; and Prosecuting Attorney Nadamoto. The OPD
advocated for the immediate release of a certain category of
non-violent defendants. Prosecuting Attorney Nadamoto expressed
that individualized assessments should be conducted for any
inmate considered for release. DPS explained, among other
things, the status of its inmate COVID-19 testing process and
the Department of Health’s assistance in addressing the surge in
COVID-19 positive inmates at OCCC.
The COVID-19 pandemic has caused a public health
emergency. Since July 2020, Hawai‘i has seen a surge of COVID-19
cases in Hawai‘i, with record numbers of positive cases and
increased hospitalizations being reported. This court
recognizes the impact of COVID-19 on Hawaiʻi’s community
correctional centers and facilities. This court also recognizes
public safety concerns regarding the release of inmates at OCCC
into the community. Responding to the impact of this crisis in
our community correctional centers and facilities requires a
careful consideration of interests, both for public health and
public safety.
Given the rising number of COVID-19 cases at OCCC and
the difficulties with social distancing, there is urgent and
immediate concern in reducing the inmate populations at OCCC to
protect those who work at or are detained at OCCC, their
families, and the community. The immediacy of this concern is
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also exacerbated in that the rising numbers of COVID-19 cases at
OCCC will tax the limited resources of community health care
providers, including hospital beds, ventilators, and personal
protective equipment, and will also require the expenditure of
additional resources to provide constitutionally mandated
medical care.
At this time, additional information is necessary to
assist the court and the parties in addressing the public health
and safety concerns raised by the cluster of COVID-19 cases at
OCCC and the Petition’s request for relief.
Accordingly, upon consideration of the submissions and
record in SCPW-XX-XXXXXXX, the arguments presented at the
hearing, and the current state of COVID-19 positive test results
in our community, including at OCCC, and pursuant to this
court’s authority under Hawai‘i Revised Statutes (“HRS”) §§ 602-
5(3) & (6) and § 706-625,
IT IS HEREBY ORDERED that:
1. No later than 12:00 p.m. on Monday, August 17,
2020, DPS shall provide to the OPD, Prosecutor Nadamoto, and the
Administrative Director of the Courts a list of all inmates at
OCCC who meet the following criteria:
a. Inmates serving a sentence (not to exceed 18
months) as a condition of felony deferral or
probation except for (i) inmates serving a
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term of imprisonment for a sexual assault
conviction or an attempted sexual assault
conviction; or (ii) inmates serving a term
of imprisonment for any felony offense
contained in HRS chapter 707, burglary in
the first or second degree (HRS §§ 708-810,
708-811), robbery in the first or second
degree (HRS §§ 708-840, 708-841), abuse of
family or household members (HRS § 709-
906(7)&(8)), and unauthorized entry in a
dwelling in the first degree and in the
second degree as a class C felony (HRS §§
708-812.55, 708-812.6(1) & (2)), including
attempt to commit these specific offenses
(HRS §§ 705-500, 705-501).
b. Inmates serving sentences for misdemeanor or
petty misdemeanor convictions except those
convicted of abuse of family or household
members (HRS § 709-906), violation of a
temporary restraining order (HRS § 586-4),
violation of an order for protection (HRS §
586-11), or violation of a restraining order
or injunction (HRS § 604-10.5);
c. All pretrial detainees charged with a petty
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misdemeanor or a misdemeanor offense, except
those charged with abuse of family or
household members (HRS § 709-906), violation
of a temporary restraining order (HRS § 586-
4), violation of an order for protection
(HRS § 586-11), or violation of a
restraining order or injunction (HRS § 604-
10.5); and
d. All pretrial detainees charged with a
felony, except those charged with a sexual
assault or an attempted sexual assault, any
felony offense contained in HRS chapter 707,
burglary in the first or second degree (HRS
§§ 708-810, 708-811), robbery in the first
or second degree (HRS §§ 708-840, 708-841),
abuse of family or household members (HRS §
709-906(7)&(8)), and unauthorized entry in a
dwelling in the first degree and in the
second degree as a class C felony (HRS §§
708-812.55, 708-812.6(1) & (2)), including
attempt to commit these specific offenses
(HRS §§ 705-500, 705-501).
2. To the extent possible, the list shall include
the following information:
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a. The inmate’s name;
b. All criminal case numbers for which the
inmate is held;
c. The inmate’s status (e.g., pretrial felon,
sentenced felony probationer, pretrial
misdemeanant, petty misdemeanant, etc.); and
d. The name(s) of the trial or sentencing
judge(s), if available.
3. No later than 12:00 p.m. on Monday, August 17,
2020, DPS shall also provide to the OPD, Prosecuting Attorney
Nadamoto, and the Administrative Director of the Courts (for use
by judges and court personnel) a list of all inmates at OCCC who
have been tested, the dates of the tests, and the test results.
These lists shall be confidential. Updated lists shall be
provided daily.
4. This court reserves its authority to order other
measures based on changed circumstances.
5. This order does not affect DPS’s authority under
the law to release inmates on its own accord.
DATED: Honolulu, Hawai‘i, August 14, 2020.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Lisa M. Ginoza
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