In re: Individuals in Custody of the State of Hawai'i ( 2021 )


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  •                                                              Electronically Filed
    Supreme Court
    SCPW-XX-XXXXXXX
    18-FEB-2021
    08:16 AM
    Dkt. 110 ORDDS
    SCPW-XX-XXXXXXX
    IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
    IN THE MATTER OF INDIVIDUALS IN CUSTODY
    OF THE STATE OF HAWAI‘I
    ORIGINAL PROCEEDING
    DISSENT TO AMENDED ORDER RE: FELONY DEFENDANTS (FILED AUGUST
    18, 2020); ORDER RE: PETTY MISDEMEANOR, MISDEMEANOR, AND FELONY
    DEFENDANTS AT MAUI COMMUNITY CORRECTIONAL CENTER, HAWAI‘I
    COMMUNITY CORRECTIONAL CENTER, AND KAUA‘I COMMUNITY CORRECTIONAL
    CENTER (FILED AUGUST 24, 2020); ORDER RE: PETTY MISDEMEANOR,
    MISDEMEANOR, AND FELONY DEFENDANTS (FILED AUGUST 27,2020);1 AND
    ORDER DENYING PETITIONER’S “MOTION TO COMPEL COMPLIANCE WITH
    THIS COURT’S ORDERS” (FILED SEPTEMBER 1, 2020)
    (By: Wilson, J.)
    I.   Introduction: COVID-19 Poses a Lethal Threat to Hawai‘i
    Inmates and This Court Has a Responsibility to Intervene
    The rapid spread of COVID-19 has created an
    unprecedented public health emergency declared by Governor Ige
    1
    Justice Wilson joins in part Justice McKenna’s concurrence and
    dissent. See Concurring & Dissenting Order to Order Re: Petty Misdemeanor,
    Misdemeanor, & Felony Defendants, In re Individuals in Custody of Hawai‘i,
    SCPW-XX-XXXXXXX, docket #83, filed Aug. 27, 2020; infra note 45.
    1
    over eleven months ago.2      The Centers for Disease Control and
    Prevention has acknowledged that inmates in correctional
    facilities are among those that face the highest risk for
    suffering the greatest harm from COVID-19.3          Inmates incarcerated
    in the State of Hawai‘i (the “State”) have become victims of that
    harm:    the Department of Public Safety (“DPS”) reports more than
    1200 inmates have contracted COVID-19 while incarcerated.4                Eight
    inmates have died from COVID-19, with five inmates dying last
    month alone at Halawa Correctional Facility (“HCF”).5            Little is
    known about these inmates or the circumstances of their deaths,
    although DPS is required to conduct a mortality review and
    submit a report to the legislature together with recommended
    2
    See COVID-19 Emergency Proclamation, Off. of Governor of Haw.
    (Mar. 4, 2020), https://governor.hawaii.gov/wp-
    content/uploads/2020/03/2003020-GOV-Emergency-Proclamation_COVID-19.pdf (last
    visited Feb. 16, 2021).
    3
    See People at Increased Risk, Ctrs. for Disease Control and
    Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
    precautions/index.html (last updated Jan. 4, 2021).
    4
    See Dep’t of Pub. Safety, Public Safety Department COVID-19
    Testing Data, https://dps.hawaii.gov/blog/2020/03/17/coronavirus-covid-19-
    information-and-resources/ (last visited Feb. 11, 2021) [hereinafter “DPS
    COVID-19 Testing Data”]; Dep’t of Pub. Safety, Department of Public Safety
    Weekly Population Report (Feb. 1, 2021), https://dps.hawaii.gov/wp-
    content/uploads/2021/02/Pop-Reports-Weekly-2021-02-01.pdf [hereinafter “DPS
    Feb. 1, 2021 Population Report”] (reporting a total inmate population of 3121
    across DPS facilities).
    5
    See State says 5 Halawa prison fatalities last month were COVID-
    related, Haw. News Now (Feb. 5, 2021),
    https://www.hawaiinewsnow.com/2021/02/06/state-says-halawa-prison-fatalities-
    were-coronavirus-related/.
    2
    correctional action.6      What is known is that inmates in DPS
    facilities have reason to be in constant fear that they will
    contract a devastating, potentially lethal disease.7            This fear
    is not unfounded given the high rate of infection facilitated by
    6
    Hawai‘i Revised Statutes (“HRS”) § 353C-8.5 (2019) requires,
    within thirty days of an inmate death, submission of a formal report “of the
    clinical mortality review conducted in response to the death, including
    correctional actions to be taken” to the legislature. HRS § 353C-8.5(c).
    The Hawai‘i Correctional Systems Oversight Commission could also investigate
    the inmate deaths at HCF. See HRS § 353L-3 (2019).
    Media releases have stated that the five HCF inmates were over
    the age of sixty-five, and that one inmate died at Pali Momi Medical Center
    after being hospitalized for over a month. See Press Release, Off. of
    Governor of Haw., Five Hawaii Inmate Deaths Classified as COVID-19 Related
    (Feb. 5, 2021), https://governor.hawaii.gov/newsroom/psd-news-release-five-
    hawaii-inmate-deaths-classified-as-covid-19-related/; Annalisa Burgos, Family
    of Halawa inmate who died from COVID-19 say state failed to prevent tragedy,
    KITV4 (Feb. 9, 2021), https://www.kitv.com/story/43323869/family-of-halawa-
    inmate-who-died-from-covid19-say-state-failed-to-prevent-tragedy. Questions
    relevant to a mortality review are: were these deaths all tied to the same
    outbreak? What kind of medical care (e.g., ventilators) did these inmates
    have access to? Did they die at HCF or in a hospital? Why were these
    inmates over the age of sixty-five still incarcerated, and were they applying
    for parole, compassionate release, or some other form of expedited release?
    7
    See Decl. of Diane DiMaria at 5, In re Individuals in Custody of
    Hawai‘i, SCPW-XX-XXXXXXX, docket #94, filed Oct. 27, 2020 (attesting that her
    son, who is incarcerated at HCF, is “very scared that he will become infected
    with COVID-19—and might die from it”); Malika Dudley, MCCC Inmates Fear They
    are in Danger, KITV4 (Aug. 29, 2020),
    https://www.kitv.com/story/42561972/mccc-inmates-fear-they-are-in-danger.
    The United States Supreme Court has also recognized the profound
    psychological trauma that can result from prolonged exposure to uncertain,
    stressful conditions, such as those experienced by prisoners on death row.
    See Glossip v. Gross, 
    576 U.S. 863
    , 926 (2015) (Bryer, J., dissenting)
    (noting that “‘when a prisoner sentenced by a court to death is confined in
    the penitentiary awaiting the execution of the sentence, one of the most
    horrible feelings to which he can be subjected during that time is the
    uncertainty during the whole of it’” (quoting In re Medley, 
    134 U.S. 160
    , 172
    (1890)).
    3
    the extreme overcrowding among inmates.8          Clusters of COVID-19
    continue to break out within DPS facilities.9           But inmates have
    not been prioritized for vaccination,10 and are not included in
    the State’s daily case count.11        The recent deaths of the five
    HCF inmates should serve as a warning:          inmates in DPS
    8
    Inmates are commonly housed with two, and up to three, people per
    cell, making social distancing impossible. See Sept. 23, 2020 Decl. of Pablo
    Stewart, M.D. at 4–10, In re Individuals in Custody of Hawai‘i, SCPW-20-
    0000509, docket #94, filed Oct. 27, 2020 [hereinafter “Sept. 23 Stewart
    Decl.”]. Overcrowding can also lead to increased inmate-on-inmate violence.
    On August 31, 2020, OCCC was the site of a fatal beating of a COVID-19
    positive man confined with two other COVID-19 positive men in the same cell.
    Kevin Dayton, 2 Inmates Killed in 2 Weeks In Hawaii Correctional System,
    Honolulu Civil Beat (Sept. 1, 2020), https://www.civilbeat.org/2020/09/2-
    inmates-killed-in-2-weeks-in-hawaii-correctional-system/.
    9
    The Maui Community Correctional Center (“MCCC”) is currently
    experiencing a growing cluster of COVID-19 cases: DPS reported MCCC’s first
    positive case on February 1, and as of February 11, is reporting twenty
    active inmate cases with 101 inmates in quarantine and 28 inmates in medical
    isolation. See Wendy Osher, COVID-19 Cluster at Maui Jail Now Includes 20
    Inmates, Maui Now (Feb. 11, 2021), https://mauinow.com/2021/02/11/covid-19-
    cluster-at-maui-jail-now-includes-20-inmates/; Press Release, Off. of
    Governor of Haw., Maui Community Correctional Center COVID-19 Testing Update
    (Feb. 5, 2021), https://governor.hawaii.gov/newsroom/psd-news-release-maui-
    community-correctional-center-covid-19-testing-update/. In response to the
    outbreak, all court hearings for MCCC inmates will be conducted via closed-
    circuit television until February 12. See Kevin Dayton, Maui Courts Go
    Remote After MCCC Inmates Test Positive, Honolulu Civil Beat (Feb. 5, 2021),
    https://www.civilbeat.org/beat/maui-courts-go-remote-after-mccc-inmates-test-
    positive/.
    10
    See Kevin Dayton, ACLU Urges State To Allow At-Risk Inmates To Be
    Vaccinated Early, Honolulu Civil Beat (Jan. 11, 2021),
    https://www.civilbeat.org/beat/aclu-urges-state-to-allow-at-risk-inmates-to-
    be-vaccinated-early/.
    11
    In December of 2020, the outbreak in O‘ahu correctional facilities
    was so severe that the Honolulu Mayor asked the Governor to remove positive
    inmate cases from the city’s daily case counts, stating, “The Halawa
    [Correctional Facility] count is taking us up to numbers that I’m not
    comfortable with.” Caldwell asks Gov. Ige to keep COVID-infected inmates out
    of Oahu case count, Haw. News Now (Dec. 14, 2020),
    https://www.hawaiinewsnow.com/2020/12/14/caldwell-reverses-course-moves-keep-
    covid-infected-inmates-out-oahu-reopening-metrics/.
    4
    facilities will continue to contract and die from COVID-19 while
    in the State’s custody unless this court takes swift and
    decisive action.
    The solution is straightforward and has been called
    for repeatedly:     first, reduction of the inmate population in
    correctional facilities to design capacity so that social
    distancing can be properly implemented, and second, appointment
    of an independent expert who could monitor the conditions within
    correctional facilities to ensure that DPS is providing
    constitutionally humane conditions of confinement for inmates.
    At the O‘ahu Community Correctional Center (“OCCC”),12
    the inmate population must be reduced to its design capacity of
    628 inmates.13    Design capacity is one of the primary remedies
    sought by the Office of the Public Defender (“Public Defender”)
    and the American Civil Liberties Union (“ACLU”) and its expert,
    Dr. Pablo Stewart (“Dr. Stewart”).14        This court, the special
    12
    The looming COVID-19 threat caused by DPS’s failure to rectify
    conditions of confinement for inmates is well-illustrated by, but not limited
    to, OCCC. While this dissent focuses largely on the conditions within OCCC,
    positive cases of COVID-19 have been reported across the State’s other
    correctional facilities. See DPS COVID-19 Testing Data, supra note 4.
    13
    The population of OCCC is approximately 950 inmates--more than
    300 inmates over design capacity. See DPS Feb. 1, 2021 Population Report,
    supra note 4.
    14
    See Petition for Writ of Mandamus at 14, In re Individuals in
    Custody of Hawai‘i, SCPW-XX-XXXXXXX, docket #1, filed Aug. 12, 2020; Brief for
    ACLU as Amici Curiae Supporting Petitioner at 34, In re Individuals in
    (. . . continued)
    5
    master appointed by this court, the Hawai‘i Correctional Systems
    Oversight Commission, the Kaua‘i County Prosecutor, and various
    other public health officials and experts all support reducing
    the inmate population in the face of a deadly pandemic.15             With
    the prison population reduced to design capacity and sufficient
    space to implement social distancing, new inmates could be
    thoroughly quarantined to ensure they do not introduce COVID-19
    into OCCC, and potentially infected inmates could be placed in
    proper medical isolation so that COVID-19 is not further spread
    within OCCC.    Nonetheless, design capacity has never been
    achieved by DPS.16
    (continued. . . )
    Custody of Hawai‘i, SCPW-XX-XXXXXXX, docket #94, filed Oct. 27, 2020
    [hereinafter “ACLU Brief”]; Apr. 13, 2020 Decl. of Pablo Stewart, M.D. at 2,
    Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX, docket #80, filed April 13, 2020
    [hereinafter “Apr. 13 Stewart Decl.”]; Sept. 23 Stewart Decl. at 2, 9
    (observing that “the inability to socially distance and overcrowding problem
    that OCCC faces has stayed constant throughout the pandemic”).
    15
    See Order of Consolidation and for Appointment of Special Master
    at 3, Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX, docket #22, filed Apr. 2,
    2020; Initial Summary Report and Initial Recommendations of the Special
    Master at 33–34, Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX, docket #51, filed
    Apr. 9, 2020; Amicus Letter in Support of Petitioner from Mark Patterson,
    Chair, Haw. Corr. Sys. Oversight Comm’n, to Chief Justice Mark E. Recktenwald
    (Mar. 31, 2020), Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX, docket #5, filed
    Mar. 31, 2020; Response of Justin F. Kollar at 3–5, Off. of Pub. Def. v.
    Connors, SCPW-XX-XXXXXXX, docket #6, filed Mar. 26, 2020; Brief for Amici
    Curiae Public Health and Human Rights Experts Supporting Petitioner at 1,
    Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX, docket #36, filed Apr. 6, 2020.
    16
    The earliest published corrections population report from DPS is
    dated December 31, 2014. In the past 6 years, OCCC’s population has never
    been at or below design capacity. See Corrections Division, Dep’t of Pub.
    Safety, https://dps.hawaii.gov/about/divisions/corrections/.
    6
    Reducing the population with due regard for public
    safety does not require the release of “violent” inmates into
    the community.     The majority of inmates at OCCC are accused of
    committing nonviolent offenses, and many have been judged to be
    nonviolent as a basis for receiving probationary sentences with
    a limited term of incarceration.          Many inmates have a history of
    poverty or homelessness, or struggle with mental illness, but
    most have not been accused of violent offenses.           Reducing the
    population at OCCC does not necessarily require the release of
    inmates from custody at all; transfer to an alternative facility
    for completion of the sentence is also an option.17
    The aforementioned remedies are necessary to rectify
    the severe overcrowding within State correctional facilities
    that allows COVID-19 to thrive and amounts to unconstitutional
    cruel and unusual conditions of confinement.           See U.S. Const.,
    amends. VII, XIV; Haw. Const., art. I, §§ 5, 12.            Acute exposure
    to COVID-19 is particularly troubling for pretrial detainees
    because they are owed greater due process protection under the
    Fourteenth Amendment from punishment than inmates who have been
    convicted.    See Bell v. Wolfish, 
    441 U.S. 520
    , 535 (1979).            The
    17
    Alternative incarceration arrangements are available, such as the
    vacant cells at the Federal Detention Center, additional temporary facilities
    at correctional institutions, and vacant hotels--all of which can be used for
    those who are being held pending trial and those who are serving short
    sentences for nonviolent offenses.
    7
    Public Defender has asked this court to intervene.            And it is
    our duty to do so to defend the rights of Hawai‘i’s incarcerated
    people under the constitutions of the United States and the
    State of Hawai‘i.
    II.   A Timeline of the Rise of the COVID-19 Threat Within the
    O‘ahu Community Correctional Center
    Approximately eleven months ago, on March 26, 2020,
    the Public Defender filed with this court its Petition for Writ
    of Mandamus to seek judicial relief from the failure of DPS to
    protect inmates from COVID-19.        In April, before the first
    infected inmate was identified in State correctional facilities
    this court recognized the conditions of incarceration and
    overcrowding at OCCC necessitated court intervention to protect
    inmates from the threat of contracting COVID-19.18           Reduction of
    the population to OCCC’s design capacity of 628 inmates and
    social distancing were identified as necessary steps to relieve
    the inmates from the threat posed by COVID-19.19           Dr. Stewart,
    18
    Order of Consolidation and for Appointment of Special Master,
    Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX, docket #22, filed Apr. 2, 2020.
    19
    See Interim Order at 2, Off. of Pub. Def. v. Ige, SCPW-20-
    0000213, docket #88, filed Apr. 15, 2020 (“Efforts shall be undertaken to
    reduce the inmate population of correctional centers and facilities to design
    capacity.”); Third Interim Order at 2, Off. of Pub. Def. v. Ige, SCPW-20-
    0000213, docket #108, filed Apr. 24, 2020 (“Efforts shall continue to be
    undertaken to reduce the inmate population of correctional centers and
    facilities to design capacity.”). The OCCC population in April was
    approximately 953 inmates. See Dep’t of Pub. Safety, Department of Public
    Safety Weekly Population Report (Mar. 31, 2020), https://dps.hawaii.gov/wp-
    (. . . continued)
    8
    who has experience monitoring and assessing the COVID-19 risk in
    prison facilities, attested that “to avoid a COVID-19
    catastrophe within DPS facilities, any process must include the
    target of reaching, at minimum, design bed capacity in each
    facility.”    Apr. 13 Stewart Decl. at 4.        While COVID-19 had not
    yet been identified within OCCC, Dr. Stewart described the
    conditions in OCCC as “dangerously inadequate” and “a COVID-19
    ticking time bomb.”20     Id. at 5.       Faced with the COVID-19 threat,
    on April 2, 2020, this court appointed a special master to
    facilitate reduction of the inmate population by releasing
    inmates from correctional facilities.21
    Approximately two months later, on June 5, 2020, the
    Majority concluded the proceeding and discharged the special
    master22 with the unfounded assumption that the emergency
    (continued. . . )
    content/uploads/2020/04/Pop-Reports-EOM-2020-03-31.pdf [hereinafter “DPS Mar.
    31, 2020 Population Report”].
    20
    Despite these warnings, DPS contends that “it would have been
    impossible for the State’s correctional facilities to remain free of COVID-
    19.” DPS Response at 2, In re Individuals in Custody of Hawai‘i, SCPW-20-
    0000509, docket #9, filed Aug. 14, 2020.
    21
    Order of Consolidation and for Appointment of Special Master at
    4, Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX, docket #22, filed Apr. 2, 2020.
    22
    Order Concluding Matters In This Consolidated Proceeding at 4,
    Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX, docket #187, filed June 5, 2020.
    9
    conditions that caused this court to appoint the special master
    had passed.23
    By August 13, 2020, COVID-19 was rampant in Hawai‘i.24
    COVID-19 erupted in OCCC; it quickly became one of the largest,
    most active clusters of COVID-19 infection in the State.25             On
    August 18, the Director of the Department of Health, Dr. Bruce
    Anderson, described OCCC as the “perfect environment for the
    23
    Amended Dissent Re: Order Concluding Matters In This
    Consolidated Proceeding at 7 n.15, Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX,
    docket #191, filed June 8, 2020.
    24
    See Talal Ansari, Hawaii Is No Longer Safe From Covid-19, Wall
    St. J. (Aug. 28, 2020), https://www.wsj.com/articles/hawaii-is-no-longer-
    safe-from-covid-19-11598619600.
    25
    See Kevin Dayton, COVID-19 Cases Erupt At OCCC—70 More Inmates, 7
    ACOs Test Positive, Honolulu Civil Beat (Aug. 13, 2020),
    https://www.civilbeat.org/2020/08/covid-19-cases-erupt-at-occc-70-more-
    inmates-7-acos-test-positive/. As of February 10, 2021, DPS reported 450
    recovered cases and no active cases of COVID-19 in OCCC. DPS COVID-19
    Testing Data, supra note 4. However, this statistic cannot realistically be
    interpreted to mean that COVID-19 has been eliminated in OCCC. Only twenty-
    one inmates were tested on February 3 and February 1, respectively, and
    seventeen inmates were tested on January 29. See id. There are more than
    900 inmates incarcerated at OCCC. See DPS Feb. 1, 2021 Population Report,
    supra note 4. Minimal testing produces minimal risk of returning positive
    cases; sporadically testing two percent of the inmate population is neither
    an accurate nor a proactive means of ensuring that COVID-19 has actually been
    eliminated in OCCC. This is not the “mass” or “widespread” testing DPS
    claims is helping control the spread of COVID-19 in its facilities. Answer
    of Respondent Nolan P. Espinda at 2, 9, In re Individuals in Custody of
    Hawai‘i, SCPW-XX-XXXXXXX, docket #9, filed Aug. 14, 2020. This “static,
    linear approach to testing” is “entirely inappropriate, and even dangerous.”
    Sept. 23 Stewart Decl. at 7 (further noting that “a series of COVID-19 tests
    given on a single day or week only provides a snapshot of the situation in
    that precise moment,” which “cannot tell you anything about trends, who is
    spreading to whom, or . . . whether the coronavirus is spreading more rapidly
    than before”).
    10
    transmission of COVID” and the outbreak as “explosive.”26               Since
    Dr. Anderson’s statement, the population at OCCC has increased.
    The population of OCCC has now swelled to approximately 950
    inmates--more than 300 inmates over design capacity.27                Over 500
    people within OCCC have contracted COVID-19, including 450
    inmates and 106 staff members.28
    On August 12, 2020--six days before Dr. Anderson
    described the COVID-19 outbreak as “explosive”--the Public
    Defender initiated the present proceeding, again urgently
    seeking this court’s intervention.29           Thus far, the Majority has
    declined to respond except to expand the category of inmates who
    are ineligible for expedited release:            any inmate who was
    arrested for violating the Governor’s emergency proclamations,
    or who is awaiting test results, showing symptoms, or has tested
    positive for COVID-19 is excluded from the early release
    process.30
    26
    Dr. Bruce Anderson, State of Hawai‘i Press Conference (August 18,
    2020).
    27
    See DPS Feb. 1, 2021 Population Report, supra note 4.
    28
    DPS COVID-19 Testing Data, supra note 4.
    29
    See Petition for Writ of Mandamus at 14, In re Individuals in
    Custody of Hawai‘i, SCPW-XX-XXXXXXX, docket #1, filed Aug. 12, 2020.
    30
    See Order Re: Petty Misdemeanor, Misdemeanor and Felony
    Defendants at 3-4, In re Individuals in Custody of Hawai‘i, SCPW-XX-XXXXXXX,
    docket #81, filed Aug. 27, 2020.
    11
    Shortly after the Public Defender initiated the
    present proceeding, in a related case,31 the Majority again
    acknowledged the COVID-19 emergency at OCCC but paradoxically
    issued an order directly increasing the number of inmates held
    pretrial at OCCC.     The Majority suspended the right to release
    under Rules 5 and 10 of the Hawai‘i Rules of Penal Procedure
    (“HRPP”) of all people in the First Circuit of O‘ahu who chose to
    exercise their right to appear in person in court.32
    III. This Court has a Duty Under the United States and Hawai‘i
    Constitutions to Ensure Safe Conditions of Confinement for
    Inmates
    A.   Post-conviction inmates face unconstitutional cruel
    and unusual conditions of confinement.
    The courts of the State of Hawai‘i have a duty to
    protect inmates from cruel and unusual punishment under the
    Eighth and Fourteenth Amendments to the United States
    Constitution and article I, sections 5 and 12 of the Hawai‘i
    Constitution.    To prove conditions of confinement are cruel and
    unusual under the Eighth Amendment, a post-conviction inmate
    31
    See In re Judiciary’s Response to the COVID-19 Outbreak, SCMF-20-
    0000152.
    32
    Order Re: Temporary Extension of the Time Requirements Under
    Hawai‘i Rules of Penal Procedure Rule 10(a), (b), and (c) at 2, In re
    Judiciary’s Response to the COVID-19 Outbreak, SCMF-XX-XXXXXXX, docket #43,
    filed Aug. 18, 2020; Order Re: Temporary Extension of the Time Requirements
    under Hawai‘i Rules of Penal Procedure Rule 5(c)(3), In re Judiciary’s
    Response to the COVID-19 Outbreak, SCMF-XX-XXXXXXX, docket #47, filed Aug.
    27, 2020.
    12
    must show that prison officials have acted with “deliberate
    indifference” as to the inhumane conditions.      Farmer v. Brennan,
    
    511 U.S. 825
    , 828 (1994).     This court has yet to establish a
    standard by which to evaluate conditions of confinement claims
    brought by post-conviction inmates under article I, section 12
    of the Hawai‘i Constitution, but there is compelling reason to
    adopt a state standard (“objective reasonableness”) that is more
    protective than the federal standard (“deliberate
    indifference”).
    1.     Current conditions violate post-conviction
    inmates’ Eighth Amendment rights under the
    deliberate indifference standard.
    The Eighth Amendment prohibition against cruel and
    unusual punishment arises from the basic concept of “the dignity
    of man.”   Gregg v. Georgia, 
    428 U.S. 153
    , 173 (1976) (internal
    citations omitted).     An inquiry into the “excessiveness” of the
    punishment has two aspects:      “First, the punishment must not
    involve the unnecessary and wanton infliction of pain. . . .
    Second, the punishment must not be grossly out of proportion to
    the severity of the crime.”      
    Id.
     (internal citations omitted).
    The United States Supreme Court has also explained that “the
    sanction imposed cannot be so totally without penological
    justification that it results in the gratuitous infliction of
    suffering.”     
    Id. at 183
    .   See also Amended Dissent Re:   Order
    Concluding Matters in This Consolidated Proceeding at 18-20,
    13
    Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX, docket #191, filed
    June 8, 2020.
    “[D]eliberate indifference to serious medical needs of
    prisoners constitutes the ‘unnecessary and wanton infliction of
    pain[]’ . . . proscribed by the Eighth Amendment.”     Estelle v.
    Gamble, 
    429 U.S. 97
    , 104 (1976) (quoting Gregg, 
    428 U.S. at 173
    ).   A prison official is liable under the Eighth Amendment
    “for denying an inmate humane conditions of confinement” if he
    or she “knows of and disregards an excessive risk to inmate
    health or safety,” is “aware of facts from which the inference
    could be drawn that a substantial risk of serious harm exists,”
    and “draw[s that] inference.”   Farmer, 
    511 U.S. at 837
    .
    Here, DPS is on notice that COVID-19 poses a risk of
    substantial harm to inmate health and safety.    DPS knew “the
    disease ha[d] entered facilities and resulted in a disease
    cluster at OCCC.”   DPS Response to Petition at 2, In re
    Individuals in Custody of Hawai‘i, SCPW-XX-XXXXXXX, docket #9,
    filed Aug. 14, 2020.   The Director of DPS, admitted
    approximately ten months ago in April, “I am also acutely aware
    of the risks of over-population and crowding in our correctional
    facilities especially during this pandemic.”    Letter from Nolan
    Espinda, Dir., Pub. Safety Dep’t, to Mark Patterson, Chair, Haw.
    Corr. Sys. Oversight Comm’n 4 (Apr. 17, 2020)(available at
    Exhibits “1”–“5” of Second Summary Report and Recommendations of
    14
    the Special Master, Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX,
    docket #102, filed Apr. 23, 2020).         DPS also knew of this
    court’s “urgent and immediate concern in reducing the inmate
    populations” and stipulation that “[e]fforts shall be undertaken
    to reduce the inmate population . . . to design capacity.”
    Interim Order at 3, In re Individuals in Custody of Hawai‘i,
    SCPW-XX-XXXXXXX, docket #3, filed Aug. 14, 2020; Interim Order
    at 2, Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX, docket #88,
    filed Apr. 15, 2020.      And DPS’s own expert acknowledged “that
    measures should be taken to decrease the number of inmates in
    OCCC to allow for better quarantine and isolation of infected
    inmates.”    Decl. of Sarah K. Kemble, M.D. at 3, In re
    Individuals in Custody of Hawai‘i, SCPW-XX-XXXXXXX, docket #31,
    filed Aug. 17, 2020.
    Yet, notwithstanding the proven threat of COVID-19 and
    the orders of this court, the overcrowding in OCCC worsened,
    with the inmate population swelling to 1025 inmates in January
    2021, a more than 200 inmate increase over a six-month period.33
    33
    See Dep’t of Pub. Safety, Department of Public Safety Weekly
    Population Report (Jan. 18, 2021), https://dps.hawaii.gov/wp-
    content/uploads/2021/01/Pop-Reports-Weekly-2021-01-18.pdf (listing OCCC’s
    population as 1025 inmates); Dep’t of Pub. Safety, Department of Public
    Safety Weekly Population Report (June 1, 2020), https://dps.hawaii.gov/wp-
    content/uploads/2020/06/Pop-Reports-Weekly-2020-06-01.pdf (listing OCCC’s
    population as 816 inmates).
    15
    The population has dropped slightly to its current number:             949
    inmates, about the same number at which this court first
    determined judicial intervention was necessary.34
    2.    Under an objective reasonableness standard,
    current conditions violate post-conviction
    inmates’ rights under article I, section 12 of
    the Hawai‘i Constitution.
    This court has recognized as “well settled” that the
    State maintains a “special relationship” with a prisoner in its
    custody and has a duty “to take reasonable action to protect the
    prisoner against unreasonable risk of physical harm.”            Haworth
    v. State, 
    60 Haw. 557
    , 563, 
    592 P.2d 820
    , 824 (1979).            This is
    because, through incarceration, the State has deprived the
    prisoner of his “normal opportunities to protect himself,
    particularly through avoidance of places or situations which
    involve risk.”    
    Id.
     at 563–64, 
    592 P.2d at
    824–25.         This court’s
    articulation of the State’s duty to act reasonably makes
    “objective reasonableness” a logical standard to impose under
    article I, section 12 of the Hawai‘i Constitution.           See also ACLU
    Brief at 17–21.
    Although a federal standard under the Eighth
    Amendment--“deliberate indifference”--has been articulated by
    34
    See DPS Feb. 1, 2021 Population Report, supra note 4. The number
    of inmates at OCCC as of April 2, 2020, when the court first determined that
    intervention was necessary, was 953 inmates. See DPS Mar. 31, 2020
    Population Report, supra note 19.
    16
    the United States Supreme Court, see Kingsley v. Hendrickson,
    
    576 U.S. 389
     (2015),35 this court has “long recognized . . . that
    ‘as the ultimate judicial tribunal with final, unreviewable
    authority to interpret and enforce the Hawai‘i Constitution, we
    are free to give broader protection under the Hawai‘i
    Constitution than that given by the federal constitution.’”
    State v. Viglielmo, 105 Hawai‘i 197, 210-11, 
    95 P.3d 952
    , 965-66
    (2004) (collecting cases).36       Where, as here, this court has
    already acknowledged a special duty owed by the State to a
    prisoner in its custody, this court should interpret the Hawai‘i
    Constitution as affording greater due process protections than
    the federal Constitution.37       Holding inmates in an overcrowded
    35
    Kingsley is relevant to conditions of confinement claims brought
    by pretrial detainees. See discussion infra Section III.B.
    36
    This court has recognized broader protections for criminal
    defendants under the Hawai‘i Constitution in a variety of circumstances. See
    State v. Glenn, 148 Hawai‘i 112, 123, 
    468 P.3d 126
    , 137 (2020) (penal
    responsibility for the severely mentally ill); State v. Rogan, 91 Hawai‘i 405,
    423, 
    984 P.2d 1231
    , 1249 (1999) (double jeopardy); State v. Hoey, 77 Hawai‘i
    17, 36, 
    881 P.2d 504
    , 523 (1994) (custodial interrogation); State v. Tanaka,
    
    67 Haw. 658
    , 661-62, 
    701 P.2d 1274
    , 1276 (1985) (right to privacy).
    37
    At least one other sister jurisdiction, Michigan, has expressly
    adopted this approach. See People v. Bullock, 
    485 N.W.2d 866
    , 872 (Mich.
    1992) (“[A]t least three compelling reasons . . . exist to interpret our
    state constitutional provision more broadly . . . than the United States
    Supreme Court interpreted the Eighth Amendment.”); cf. Walker v. State, 
    68 P.3d 872
    , 883 (Mont. 2003) (acknowledging that in “certain instances” it is
    appropriate to read the provision of the Montana Constitution affording every
    person human “dignity” together with that banning “cruel and unusual
    punishments” to “provide Montana citizens greater protections from cruel and
    unusual punishment than does the federal constitution”); Fleming v. Zant, 
    386 S.E.2d 339
    , 342 (Ga. 1989) (noting that “[f]ederal constitutional standards
    (. . . continued)
    17
    facility where COVID-19 has and will continue to spread,
    infecting and potentially killing inmates, does not constitute
    “reasonable action” that protects inmates “against unreasonable
    risk of physical harm.”
    B.    Pretrial detainees face unconstitutional punishment.
    We must also take care to distinguish between pretrial
    detainees and post-conviction inmates.          See ACLU Brief at 13–14.
    “Because pretrial detainees are not convicted prisoners,” their
    rights to challenge conditions of confinement arise under the
    Due Process Clause of the Fourteenth Amendment, which prohibits
    the deprivation of life, liberty, or property without due
    process of law.     Carnell v. Grimm, 
    74 F.3d 977
    , 979 (9th Cir.
    1996), abrogated on other grounds by Gordon v. Cty. of Orange,
    
    888 F.3d 1118
     (9th Cir. 2018).        The “due process rights [of a
    pretrial detainee] are at least as great as the Eighth Amendment
    protections available to a convicted prisoner.”           
    Id.
       Pretrial
    detainees are protected from any and all punishment--even
    punishment that does not rise to the level of cruel and unusual-
    (continued. . . )
    represent the minimum, not the maximum, protection that this state must
    afford its citizens,” and applying a more lenient interpretation of what
    constituted cruel and unusual punishment in holding that mentally disabled
    people could not be executed in Georgia). See also ACLU Brief at 19 (arguing
    that “the federal standard does not meaningfully protect people who are
    incarcerated in correctional facilities from unjustified, state-created harm”
    (emphasis added)).
    18
    -and “may not be punished prior to an adjudication of guilt in
    accordance with due process of law.”    Bell v. Wolfish, 
    441 U.S. 520
    , 535 (1979).   Punishment of pretrial detainees is also
    prohibited by article I, section 5 of the Hawai‘i Constitution.
    See Gordon v. Maesaka-Hirata, 143 Hawai‘i 335, 358, 
    431 P.3d 708
    ,
    731 (2018) (adopting the Bell standard for claims brought under
    the Hawai‘i Constitution).
    A condition amounts to punishment when state officials
    express an intent to punish, the condition is “not reasonably
    related to a legitimate goal,” or the condition is “excessive in
    relation to the alternative purpose assigned to it.”     Bell, 
    441 U.S. at
    538–39 (internal quotation marks omitted).     The
    subjective intent of the officials imposing the condition is not
    dispositive, and “‘a pretrial detainee can prevail by providing
    only objective evidence’ that his or her treatment lacked a
    rational relationship or was excessive in relation to a
    legitimate governmental purpose.”    Gordon, 143 Hawai‘i at 349
    n.19, 431 P.3d at 722 n.19 (quoting Kingsley v. Hendrickson, 
    576 U.S. 389
    , 398 (2015)).   The issue here is whether pretrial
    detainees’ current conditions of confinement are “objectively
    19
    unreasonable.”    Kingsley, 576 U.S. at 397.38       As mentioned above,
    holding pretrial detainees in an overcrowded facility where
    COVID-19 has been allowed to thrive cannot be regarded as
    objectively reasonable.      It is thus the constitutional duty of
    this court to order DPS to relieve inmates from the cruel and
    unusual conditions created by overcrowding and the threat of
    COVID-19.
    IV.   The Current Intervention Orders Do Not Address Cruel and
    Unusual Conditions of Confinement at OCCC, Design Capacity,
    or Social Distancing
    The Majority’s current intervention orders resort to
    the same practices that failed to sufficiently reduce the inmate
    population to design capacity during April through June of 2020.
    Moreover, the Majority’s current orders establish two additional
    categories of inmates who are ineligible for expedited release,
    which adds to the inmate population at OCCC and exacerbates
    cruel and unusual conditions of confinement.
    38
    The Ninth Circuit has adopted Kingsley’s objective standard, at
    least in the “failure-to-protect” context, noting that the United States
    Supreme Court in “Kingsley rejected the notion that there exists a single
    ‘deliberate indifference’ standard applicable to all § 1983 claims, whether
    brought by pretrial detainees or by convicted prisoners.” Castro v. Cty. of
    L.A., 
    833 F.3d 1060
    , 1069 (9th Cir. 2016) (en banc).
    20
    A.     The Majority’s second expedited release orders repeat
    the same methods that have proven insufficient to
    reduce the inmate population to design capacity.
    In its first expedited release orders in April, this
    court sought to address the lethal threat of COVID-19 by
    identifying categories of nonviolent inmates eligible for
    expedited, early release in order to reduce the population at
    OCCC to design capacity to allow for adequate social distancing.
    See Order of Consolidation and for Appointment of Special
    Master, Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX, docket #22,
    filed Apr. 2, 2020; Interim Order, Off. of Pub. Def. v. Ige,
    SCPW-XX-XXXXXXX, docket #65, filed Apr. 10, 2020 [hereinafter
    “first expedited release orders”].         Although the number of
    inmates released was insufficient to achieve design capacity,39
    the Majority terminated its participation in June with the
    understanding that the emergency had subsided and DPS would take
    sufficient measures to protect the inmates from COVID-19.             See
    Order Concluding Matters in This Consolidated Proceeding at 3,
    Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX, docket #187, filed
    June 5, 2020.     The inadequacy of the first expedited release
    orders and DPS’s failure to address the cruel and unusual
    39
    By April 30, 2020, the population at OCCC had been reduced to 779
    inmates, 141 inmates over design capacity. See Dep’t of Pub. Safety,
    Department of Public Safety End of Month Population Report (Apr. 30, 2020),
    https://dps.hawaii.gov/wp-content/uploads/2020/05/Pop-Reports-EOM-2020-04-
    30.pdf.
    21
    conditions at OCCC caused the Public Defender to file the
    instant Petition, again seeking the intervention of this court.
    In response, the court intervened in August with a second set of
    expedited release orders to again establish a list of categories
    of inmates eligible for early, expedited release.    See Amended
    Order Re:    Petty Misdemeanor and Misdemeanor Defendants, In re
    Individuals in Custody of Hawai‘i, SCPW-XX-XXXXXXX, docket #49,
    filed Aug. 17, 2020; Amended Order Re:    Felony Defendants, In re
    Individuals in Custody of Hawai‘i, SCPW-XX-XXXXXXX, docket #51,
    filed Aug. 18, 2020; Order Re:    Petty Misdemeanor, Misdemeanor
    and Felony Defendants at the Maui Community Correction Center,
    the Hawai‘i Community Correction Center, and the Kaua‘i Community
    Correctional Center, In re Individuals in Custody of Hawai‘i,
    SCPW-XX-XXXXXXX, docket #61, filed Aug. 24, 2020; Order Re:
    Petty Misdemeanor, Misdemeanor and Felony Defendants, In re
    Individuals in Custody of Hawai‘i, SCPW-XX-XXXXXXX, docket #81,
    filed Aug. 27, 2020 [hereinafter “second expedited release
    orders”].
    Respectfully, the limited intervention in the
    Majority’s second expedited release orders has not been
    effective.   The categories of inmates identified in the second
    expedited release orders are practically unchanged from the
    categories of eligible inmates in the Majority’s first expedited
    release orders.   When applied by the trial judges, the first
    22
    expedited release orders failed to achieve a meaningful
    reduction of the population at OCCC.40         See Amended Dissent Re:
    Order Concluding Matters in This Consolidated Proceeding at 12-
    13, Off. of Pub. Def. v. Ige, SCPW-XX-XXXXXXX, docket #191,
    filed June 8, 2020.41     At the time the first expedited release
    orders were entered in April, there were 953 inmates at OCCC.42
    Notwithstanding the second expedited release orders entered on
    August 17, 18, 24, and 27, the population thereafter increased
    to more than one thousand inmates and is now 949 inmates--
    approximately the same overcrowded population that caused this
    court to order the initial expedited release of inmates over
    nine months ago.43     Thus, as with the first expedited release
    orders, the number of inmates released pursuant to the second
    expedited release orders has been inadequate to protect inmates
    from the overcrowded, cruel and unusual conditions at OCCC.
    40
    The second expedited release orders add to the inmates eligible
    for early release: inmates “awaiting adjudication of motions for revocation
    or modification of probation or motions to set aside or modify deferral,” and
    “pretrial inmates who have pled guilty or no-contest and are awaiting
    sentencing, subject to exceptions” are now eligible for release. Amended
    Order Re: Felony Defendants at 1 n.1, In re Individuals in Custody of
    Hawai‘i, SCPW-XX-XXXXXXX, docket #51, filed Aug. 18, 2020. But, as discussed
    below, the new orders also add to the inmates who are ineligible for early
    release.
    41
    See also supra note 39.
    42
    See DPS Mar. 31, 2020 Population Report, supra note 19.
    43
    See DPS Feb. 1, 2021 Population Report, supra note 4.
    23
    B.    Rather than reduce the inmate population, the
    Majority’s second expedited release orders add to the
    population.
    In its second expedited release orders, the Majority
    carves out two new categories of inmates who are excluded from
    early release consideration.        First:   all people in Hawai‘i
    arrested for or convicted of misdemeanor offenses arising from
    the violation of the Governor’s emergency proclamations.44
    Though presumed not guilty and arrested for a nonviolent
    offense, this new category of pretrial detainee is excluded from
    the early release process and thus subjected to the cruel and
    unusual conditions within OCCC.        Justice McKenna clearly
    identifies in her dissent the aggravated COVID-19 threat that
    will result from excluding this new category of inmates from the
    early release process:
    [T]he order as written allows incarceration of quarantine
    violators in our correctional centers. I believe that
    allowing this option contravenes the very purpose of our
    44
    The Majority ordered:
    2. For the purpose of this order, the following are
    “excluded offenses”:
    . . . .
    (g) violation of interstate or intrastate travel
    quarantine requirements, as ordered pursuant to HRS
    ch. 127A[.]
    Order Re: Petty Misdemeanor, Misdemeanor and Felony Defendants at 3-4, In re
    Individuals in Custody of Hawai‘i, SCPW-XX-XXXXXXX, docket #81, filed Aug. 27,
    2020.
    24
    orders—-to reduce and eventually eliminate COVID-19 in our
    correctional centers. I would encourage our trial judges
    not to send quarantine violators, who may be infected with
    COVID-19, to our community correctional centers.
    Concurring & Dissenting Order to Order Re:        Petty Misdemeanor,
    Misdemeanor, & Felony Defendants at 2, In re Individuals in
    Custody of Hawai‘i, SCPW-XX-XXXXXXX, docket #83, filed Aug. 27,
    2020.45
    Second, the Majority’s second expedited release orders
    also disqualify from early release all those who “have COVID-19,
    are awaiting test results or . . . show symptoms,” even if they
    would otherwise be eligible for release.        Amended Concurring and
    Dissenting Order Re:    Petty Misdemeanor and Misdemeanor
    Defendants at 4, In re Individuals in Custody of Hawai‘i, SCPW-
    XX-XXXXXXX, docket #49, filed Aug. 17, 2020.         The Majority’s
    decision to exclude from emergency release those who are
    awaiting test results, showing symptoms, or have tested positive
    for COVID-19 arbitrarily discriminates against inmates who would
    otherwise be eligible for release, thus perpetuating the
    overcrowded conditions at OCCC.      See Amended Concurring and
    Dissenting Order Re:    Petty Misdemeanor and Misdemeanor
    Defendants at 4-7, In re Individuals in Custody of Hawai‘i, SCPW-
    XX-XXXXXXX, docket #49, filed Aug. 17, 2020.
    45
    I join Justice McKenna’s dissent.
    25
    The exclusion of inmates from emergency release orders
    on the basis of COVID-19 discrimination classifications is akin
    to criminalizing disease, a practice that violates the Eighth
    Amendment.   See Robinson v. California, 
    370 U.S. 660
    , 666-67
    (1962) (noting that “[e]ven one day in prison would be a cruel
    and unusual punishment for the ‘crime’ of having a common
    cold”).    Respectfully, the Majority punishes inmates within the
    COVID-19 discrimination classifications solely because they have
    or might have COVID-19.    In excluding persons from the emergency
    release order on the basis of the COVID-19 discrimination
    classifications, the Majority arbitrarily subjects them to
    suffering in the form of prolonged exposure to a deadly disease
    without the ability to protect themselves.   As Justice Douglas
    noted in his concurrence in Robinson, “[w]e would forget the
    teachings of the Eighth Amendment if we allowed sickness to be
    made a crime and permitted sick people to be punished for being
    sick.   This age of enlightenment cannot tolerate such barbarous
    action.”   
    Id. at 678
     (Douglas, J., concurring).   Justice Douglas
    explained that the same Eighth Amendment “principle that would
    deny power to exact capital punishment for a petty crime would
    also deny power to punish a person by fine or imprisonment for
    being sick.”   
    Id. at 676
     (Douglas, J., concurring).
    26
    V.    Suspension of the Right to Arraignment and Preliminary
    Hearing Adds to the Population at OCCC, and Violates
    Pretrial Inmates’ Right to Due Process of Law
    In a related case,46 in August, the Majority added to
    the incarcerated population at OCCC, and in so doing exacerbated
    the overcrowded, cruel and unusual conditions of confinement
    therein.    Specifically, the Majority suspended the right to be
    released from custody of all inmates on O‘ahu who wish to appear
    in person before the court to plead guilty at arraignment or who
    wish to appear in person at a preliminary hearing.47             See Order
    46
    See In re Judiciary’s Response to the COVID-19 Outbreak, SCMF-20-
    0000152.   A dissent in that case is forthcoming.
    47
    The Majority suspends the right to be released from custody of
    those awaiting their arraignment for more than fourteen days who wish to
    plead guilty and the right to be released of those forced to wait more than
    two days for their preliminary hearing. HRPP Rule 5(c)(3) provides:
    The court shall conduct the preliminary hearing within 30
    days of initial appearance if the defendant is not in
    custody; however, if the defendant is held in custody for a
    period of more than 2 days after initial appearance without
    commencement of a defendant’s preliminary hearing, the
    court, on motion of the defendant, shall release the
    defendant to appear on the defendant’s own recognizance,
    unless failure of such determination or commencement is
    caused by the request, action or condition of the
    defendant, or occurred with the defendant’s consent, or is
    attributable to such compelling fact or circumstance which
    would preclude such determination or commencement within
    the prescribed period, or unless such compelling fact or
    circumstance would render such release to be against the
    interest of justice.
    HRPP Rule 5(c)(3).
    HRPP Rule 10 provides:
    (a) A defendant who has been held by district court to
    answer in circuit court shall be arraigned in circuit court
    (. . . continued)
    27
    Re:   Temporary Extension of the Time Requirements Under Hawai‘i
    Rules of Penal Procedure Rule 10(a), (b), and (c), In re
    Judiciary’s Response to the COVID-19 Outbreak, SCMF-XX-XXXXXXX,
    docket #43, filed Aug. 18, 2020; Order Re:          Temporary Extension
    of the Time Requirements Under Hawai‘i Rules of Penal Procedure
    Rule 5(c)(3), In re Judiciary’s Response to the COVID-19
    Outbreak, SCMF-XX-XXXXXXX, docket #47, filed Aug. 27, 2020
    [hereinafter “suspension orders”].
    The Majority’s unprecedented order suspends the right
    of all arrested people on O‘ahu to be released from police
    custody within the time limits set by HRPP Rules 5 and 10.                The
    Majority initiated the suspension orders citing the “public
    health emergency” caused by the “surge of COVID-19 cases,” both
    within the State and “in our community correctional centers and
    (continued. . . )
    within 14 days after the district court’s oral order of
    commitment following (i) arraignment and plea, where the
    defendant elected jury trial or did not waive the right to
    jury trial or (ii) initial appearance or preliminary
    hearing, whichever occurs last.
    (b) Following service of grand jury warrant, a defendant
    arrested in the jurisdiction or returned to the
    jurisdiction shall be arraigned not later than 7 days
    following the arrest or return.
    (c) Following service of an information charging warrant of
    arrest, a defendant arrested in the jurisdiction or
    returned to the jurisdiction shall be arraigned not later
    than 7 days following arrest or return.
    HRPP Rule 10.
    28
    facilities.”    No request was made to the court by the prosecutor
    to suspend the rights of people held pretrial.           No agreement to
    suspend the rights of the affected defendants was reached with
    their defense counsel.      No hearing was held for the defendants
    who lost their right to be released from custody.            Thus, no
    record exists to support the Majority’s unilateral conclusion
    that the spread of COVID-19 among inmates and correctional staff
    has rendered it impossible for the State’s Judiciary (the
    “Judiciary”) to comply with the rights of detainees to be
    released from custody pursuant to HRPP Rules 5 and 10.
    The suspension of the right to a prompt arraignment
    and preliminary hearing for inmates on O‘ahu is particularly
    troubling because it indiscriminately affects the fundamental
    liberty rights of pretrial detainees presumed to be not guilty
    and who have not been shown to present any threat to our
    community.48
    48
    “A fundamental constitutional right is one that is ‘explicitly or
    implicitly guaranteed by the Constitution.’” Estate of Coates v. Pac. Eng’g,
    
    71 Haw. 358
    , 363, 
    791 P.2d 1257
    , 1260 (1990) (quoting San Antonio Sch. Dist.
    v. Rodrigues, 
    411 U.S. 1
    , 33–34 (1973)). The rights to a prompt arraignment
    and preliminary hearing are fundamental because they stem from the Due
    Process Clause of both the United States and Hawai‘i constitutions. See U.S.
    Const. amend. XIV, § 2; Haw. Const. art. I, § 5. Several other jurisdictions
    have explicitly enshrined as fundamental the right to a prompt arraignment
    and preliminary hearing. See People v. Thompson, 
    611 P.2d 883
    , 897 (Cal.
    1980) (“The right to a prompt arraignment is ‘a fundamental right of the
    arrested person.’”); People v. Hendrix, 
    295 N.E.2d 724
    , 727 (Ill. 1973)
    (discussing the “defendant’s constitutional right to a prompt preliminary
    hearing”).
    29
    A.    There is no evidence that the unilateral, sua sponte
    action of the Majority is the least restrictive means
    possible.
    For government action that denies a fundamental right
    to be upheld as constitutional, a court must find that the state
    has a compelling interest, that this interest outweighs the harm
    suffered by the individuals affected, and that the action is the
    least restrictive means possible.         See McCloskey v. Honolulu
    Police Dep’t, 
    71 Haw. 568
    , 576, 
    799 P.2d 953
    , 957 (1990).
    Here, even presuming that protecting public health and
    safety is a compelling interest, there is no evidence that a
    blanket suspension of rights is the least restrictive means
    possible.    Without evidence to assess least restrictive means,
    the Majority suspended the rights of inmates on O‘ahu to an
    arraignment “no longer than reasonably necessary to protect
    public health and safety.”       Suspension Orders at 3.       What is
    “reasonably necessary” has proven to be indefinite; the initial
    suspension has been extended several times.49          No evidence
    supports the Majority’s conclusion that the number of inmates
    49
    The most recent extension expires on March 31, 2021. See Fifth
    Extension of the Time Requirements Under Hawai‘i Rules of Penal Procedure Rule
    5(c)(3), In re Judiciary’s Response to the COVID-19 Outbreak, SCMF-20-
    0000152, docket #91, filed Feb. 8, 2021; Fifth Extension of the Time
    Requirements Under Hawai‘i Rules of Penal Procedure Rule 10(a), (b), and (c),
    In re Judiciary’s Response to the COVID-19 Outbreak, SCMF-XX-XXXXXXX, docket
    #93, filed Feb. 8, 2021.
    30
    held pretrial who seek to assert their rights to be released
    pursuant to HRPP Rules 5 and 10 is so overwhelming that the
    resources of the Judiciary and DPS are inadequate to provide
    them with an arraignment or preliminary hearing within the time
    limits set by Rules 5 and 10.        The number of people awaiting
    arraignment who wish to plead guilty has not been established.50
    There is no evidence that the number is significant.            On the
    contrary, it is uncommon for defendants to plead guilty at
    arraignment.    Nor is there any factual support for the
    proposition that there exists such an overwhelming number of
    preliminary hearings as to preclude transport of the people who
    have a right to be released within two days of their
    50
    Pursuant to HRRP Rule 43, only a defendant intending to plead
    guilty is guaranteed to the right to appear in person for an arraignment.
    HRPP Rule 43 states:
    (a) Presence required. The defendant shall be present at
    the arraignment, at the time of the plea, at evidentiary
    pretrial hearings, at every stage of the trial including
    the impaneling of the jury and the return of the verdict,
    and at the imposition of sentence, except as otherwise
    provided by this Rule.
    . . . .
    (e) Presence may be by video conference.
    (1) The court may conduct by video conference,
    without the consent of the defendant, an arraignment
    wherein it accepts a plea of not guilty;
    HRPP Rule 43(a), (e).
    31
    incarceration if a preliminary hearing is not held.51            With no
    factual basis to assume the number of detainees awaiting
    arraignment or a preliminary hearing will overwhelm the
    Judiciary, the Majority cannot reach a reasoned judgment that no
    less restrictive means are available to allow proceedings in
    accordance with HRPP Rules 5 and 10.
    B.    A hearing should be held to determine if suspending
    HRPP Rules 5 and 10 is necessary and what less
    restrictive measures are available in the alternative.
    This court has a duty to avoid restricting the
    individual liberties of pretrial detainees.           The court cannot
    suspend pretrial detainees’ rights by raw fiat, but instead is
    required to employ the least restrictive means to ensure that
    fundamental rights are not compromised.          See McCloskey, 71 Haw.
    at 576, 
    799 P.2d at 957
    .52      At the very least, due process
    requires holding a hearing at which least restrictive means can
    be considered by this court.
    As discussed above, no record establishes that
    transporting inmates to court or conducting the limited
    proceedings necessary to protect their fundamental liberty
    interest creates an undue burden to public safety or the
    51
    The alternative to a preliminary hearing of obtaining an
    indictment or proceeding by information is generally preferred to release by
    the prosecution.
    52
    See also supra note 48 and accompanying text.
    32
    Judiciary.   Nor is there a record reflecting any consideration
    of alternatives that would eliminate the need to transport
    inmates to a courtroom.   There is no evidence that proceedings
    cannot be conducted at OCCC where the people being held pretrial
    are located.   There is no evidence that, if the number of
    available courtrooms for in-person proceedings is limited, the
    courtroom of the Supreme Court could not be used.    If a shortage
    of circuit and district court judges is established during a
    hearing, willing Supreme Court Justices could conduct the
    arraignments or preliminary hearings either at OCCC or in the
    courtroom of the Supreme Court.    Such an exercise of this
    court’s emergency authority permitting justices of this court to
    act as circuit court judges would be a less restrictive measure
    than the suspension of the liberty interests of all pretrial
    detainees under HRPP Rules 5 and 10.
    Least restrictive means must also be considered to
    determine how long the liberty interests of inmates awaiting
    arraignment and preliminary hearing must be suspended.    No
    information has been provided to this court as to how long
    resources will be unavailable to meet the demand posed by those
    pretrial detainees who wish to exercise their right to be
    released from custody under HRPP Rules 5 and 10.    There is no
    record that illustrates an emergency precluding application of
    HRPP Rules 5 and 10.   Absent such a record, the Majority is
    33
    incapable of evaluating the length of suspension that is
    necessary to address the emergency.
    C.   The Majority’s suspension conflicts with the
    protective nature of HRPP Rules 5 and 10.
    The Majority’s indefinite suspension of HRPP Rules 5
    and 10 conflicts with the protective nature of both rules.       HRPP
    Rule 10 sets forth a specific timeline for the arraignment of a
    defendant.   See HRPP Rule 10.   When that timeline cannot be met,
    the rule requires dismissal of the charge without prejudice.
    See State v. Basnet, 131 Hawai‘i 286, 287, 
    318 P.3d 126
    , 127
    (2013).   HRPP Rule 5 similarly counsels in favor of release.        If
    a preliminary hearing is not held within two days of an in-
    custody defendant’s initial appearance, the court must release
    the defendant.   Three narrow exceptions apply.    First, if the
    defendant caused or consented to the delay in the preliminary
    hearing, release is not mandated.     HRPP Rule 5(c)(3).    Second,
    release is not mandated if a “compelling fact or circumstance”
    precludes holding a timely preliminary hearing.     
    Id.
        Lastly,
    release is not mandated if such fact or circumstance “would
    render such release to be against the interest of justice.”          
    Id.
    This court recently scrutinized the history,
    structure, and language of HRPP Rule 5(c)(3) and held that the
    record must “support a finding that compelling circumstances
    exist[] to overcome the strong presumption that release [i]s
    34
    required.”     Moana v. Wong, 141 Hawai‘i 100, 115, 
    405 P.3d 536
    ,
    551 (2017) (emphasis added).     We found that HRPP Rule 5(c)(3)’s
    “history demonstrates this jurisdiction’s strong commitment to
    protecting defendants held in custody by providing a prompt
    preliminary hearing,” and noted that detention without a
    preliminary hearing beyond the prescribed time period “is
    permissible only in very limited situations.”     Id. at 110, 405
    P.3d at 546.     This court also held that a “compelling
    circumstance” must be sufficiently grave, and “must actually
    result in preclusion of” a timely preliminary hearing.       Id. at
    112, 405 P.3d at 548.     The sua sponte suspension ordered by this
    court without a record is inconsistent with our admonition that
    any continuance granted under HRPP Rule 5(c)(3) “must be no
    longer than needed to resolve” the compelling circumstance
    asserted, and that “[t]he court must be informed how the State
    intends to expeditiously address” such circumstance.       Id.
    In Moana, this court made clear that HRPP Rule 5(c)(3)
    requires release unless its presumption is rebutted by a strong
    evidentiary showing.     Our reasoning in Moana is equally
    applicable to the situation at hand.     There is no doubt
    preventing the spread of COVID-19 from within OCCC to the
    Judiciary and outside community is a legitimate goal for the
    State.   But with no hearing or record establishing a compelling
    need to suspend the liberty interests of pretrial detainees,
    35
    there is no evidence that the spread of COVID-19 actually
    precludes giving pretrial detainees timely preliminary hearings
    or arraignments.     There is no evidence that a compelling state
    interest exists to justify the indeterminate length and ongoing
    nature of the suspension.
    The Majority’s suspension of the rights of pretrial
    detainees to an arraignment within fourteen days and a
    preliminary hearing within two days exacerbates the cruel and
    unusual conditions for inmates at OCCC by increasing the inmate
    population at OCCC.     The suspension actively conflicts with
    efforts to reduce the severe overcrowding that poses a lethal
    threat to the inmates at OCCC and makes social distancing
    impossible at the facility.53      Put simply, the Majority’s
    suspension relegates pretrial detainees--who have not been
    convicted of any crime and are presumed not guilty--to the
    frightening and dangerous circumstances of an overcrowded jail
    in the middle of a life-threatening pandemic.          A blanket
    suspension of HRPP Rules 5 and 10 cannot be justified as
    necessary or proportional, and therefore, it does not comport
    53
    As of February 1, 2021, OCCC had an inmate count of 949, far
    above its design capacity of 628. See DPS Feb. 1, 2021 Population Report,
    supra note 4. Of those 949 inmates, 452 were being held pretrial on felony
    charges, and fifty-five were being held pretrial on misdemeanor charges. See
    id.
    36
    with this court’s duty to uphold the constitutional rights of
    pretrial detainees.54
    VI.   Judicial Intervention is Again Required to Protect Inmates
    at OCCC from Cruel and Unusual Conditions of Confinement
    OCCC is prime habitat for COVID-19, at the peril of
    our community both within the walls of OCCC and beyond.5556             Human
    54
    See also Concurrence and Dissent Re: Order Re: Temporary
    Extension of the Time Requirements Under Hawai‘i Rules of Penal Procedure Rule
    10(a), (b), and (c) at 1, In re Judiciary’s Response to the COVID-19
    Outbreak, SCMF-XX-XXXXXXX, docket #45, filed Aug. 20, 2020.
    55
    The number of available hospital and ICU beds on O‘ahu declined
    due to the increasing spread of COVID-19 infections in the community. See
    COVID-19 Dashboard, Hawai‘i Emergency Management Agency, available at
    https://hiema-hub.hawaii.gov/pages/covid-dashboard. As of February 5, 2021,
    there were sixty-four people hospitalized with COVID-19 in the State. See
    id. Another outbreak in correctional facilities that requires the
    hospitalization of inmates and correctional staff would further burden the
    healthcare system that serves our entire community.
    This is also concerning given the development of new variants of
    the virus, which could very well lead to another wave of cases. As of
    February 7, 2021, state health officials had identified nine cases of the
    Denmark L452R variant and two cases of the highly transmissible U.K. B1.1.7
    variant in Hawai‘i. See Hawaii sees second case of U.K. variant, 108 new
    infections, Honolulu Star Advertiser (Feb. 7, 2021),
    https://www.staradvertiser.com/2021/02/07/hawaii-news/hawaii-sees-second-
    case-of-u-k-variant-108-new-infections/. Particularly concerning is the
    spread of the South African variant, which has not yet been identified in
    Hawai‘i, but “shows signs of reducing the effectiveness of vaccines.” Eleni
    Avendaño, More Contagious UK Variant Of COVID-19 May Have Been Found In
    Hawaii, Honolulu Civil Beat (Feb. 2, 2021),
    https://www.civilbeat.org/2021/02/more-contagious-uk-variant-of-covid-19-may-
    have-been-found-in-hawaii/.
    56
    Eradicating COVID-19 in OCCC also serves the community at large
    because inmates infected by COVID-19 have a right to be released at the
    conclusion of their sentences, regardless of the possibility that they will
    spread COVID-19 after their release. Several federal courts have held that
    detaining an inmate beyond the end of his or her sentence may violate the
    Eighth Amendment and/or the Fourteenth Amendment. See, e.g., Haygood v.
    Younger, 
    769 F.2d 1350
    , 1354 (9th Cir. 1985); Moore v. Tartler, 
    986 F.2d 682
    ,
    686 (3d Cir. 1993); Campbell v. Peters, 
    256 F.3d 695
    , 700 (7th Cir. 2001).
    All the incarcerated men and women within OCCC have only eighteen months or
    (. . . continued)
    37
    vectors for COVID-19 circulate in and out of OCCC each day in
    significant numbers; new inmates pose the potential to carry
    COVID-19 into OCCC or become likely candidates for infection;
    and extensive overcrowding makes social distancing impossible.
    DPS maintains the position that it is “impossible for the
    State’s correctional facilities to remain free of COVID-19.”
    DPS Response to Petition at 2, In re Individuals in Custody of
    Hawai‘i, SCPW-XX-XXXXXXX, docket #9, filed Aug. 14, 2020.
    Resignation to the presence of COVID-19 at OCCC, or any DPS
    facility, is not an option available to this court.            Instead of
    intervening, however, the Majority has returned to past
    practices that failed to adequately reduce the inmate
    population, and increased the inmate population by suspending
    HRPP Rules 5 and 10 and by disqualifying more inmates from the
    expedited release process.       As a result, the conditions of
    confinement at OCCC continue to contravene the federal and state
    constitutional mandates that inmates not be subjected to cruel
    and unusual punishment.
    (continued. . . )
    less to serve on their sentences. A significant number will be released
    every month as they finish their sentences for misdemeanors and petty
    misdemeanors that have maximum sentences of no more than eighteen months and
    thirty days, respectively.
    38
    This court must grant the relief requested by the
    Public Defender and amici.     Consistent with following a
    scientific, medically sound approach to a public health crisis,
    the Public Defender specifically requests that DPS reduce inmate
    populations to design capacity and seeks the appointment of an
    expert who can inspect OCCC and further recommend to this court
    a process by which COVID-19 can be eliminated from DPS
    correctional facilities.5758
    57
    The Public Defender requested the following relief:
    To mitigate the harm that the COVID-19 pandemic will
    inflict upon people incarcerated and detained in prison and
    jail, correctional staff, and the people of Hawaiʻi,
    Petitioner respectfully requests, at minimum, the following
    relief:
    1. Order the DPS to adhere to the CDC’s Interim Guidance
    on Management of Coronavirus Disease 2019 (COVID-19) in all
    correctional centers and correctional facilities.
    2. Order testing for COVID-19 for all inmates, staff and
    ACOs [“adult corrections officers”].
    3. Appoint a public health expert to enter into all
    correctional centers and correctional facilities and review
    protocols, the ability to social distance, and make
    recommendations.
    4. Order the Circuit, Family and District Courts, the
    Department of Public Safety, and the Hawai‘i Paroling
    Authority to reduce the population of its Correctional
    Centers and Correctional Facilities to allow for the social
    separation and other measures recommended by the CDC to
    prevent the spread of COVID-19 by taking immediate steps to
    reduce the population of its Correctional Centers and
    Correctional Facilities to their design capacity.
    5. Order the Circuit, Family and District Courts that when
    adjudicating motions for release, (1) release shall be
    presumed unless the court finds that the release of the
    inmate would pose a significant risk to the safety of the
    (. . . continued)
    39
    (continued. . . )
    inmate or the public; (2) design capacity (as opposed to
    operational capacity) of the correctional center or
    facility shall be taken into consideration; (3) and the
    health risk posed by the COVID-19 pandemic. Motions for
    release based on the foregoing are for the following
    categories of inmates:
    a. Inmates serving a sentence (not to exceed 18
    months) as a condition of felony deferral or probation
    except for (I) inmates serving a 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
    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).
    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).
    (. . . continued)
    40
    (continued. . . )
    6. Order the Circuit, Family and District Courts to
    suspend the custodial portion of such sentence until the
    conclusion of the COVID-19 pandemic or deemed satisfied for
    individuals serving intermittent sentences.
    7. Order that the practice of no cash bail, including the
    release of inmates on their own recognizance, on signature
    bonds, or on supervised release, should be regularly
    employed, and pretrial detainees who are poor and not a
    risk to public safety or a flight risk should not be held
    simply because they do not have the means to post cash
    bail.
    8. Order the Hawaiʻi Paroling Authority to move forward to
    expeditiously address requests for early parole
    consideration, including conducting hearings using remote
    technology. The Hawai‘i Paroling Authority should also
    consider release of inmates who are most vulnerable to the
    virus, which includes inmates who are 65 years old and
    older, have underlying conditions, who are pregnant, and
    those inmates being held on technical parole violations
    (i.e. curfew violations, failure to report as directed,
    etc.) or who have been granted community or minimum
    security classifications and are near the end of their
    sentences. The Paroling Authority shall prepare and
    provide periodic progress reports to the parties of their
    efforts and progress in this respect. The list should
    include the names of the inmates who have been granted
    release, the names of the inmates who are under
    consideration for release, and the names of the inmates who
    were considered for release but for whom release was
    denied.
    9. Order the DPS to cooperate and be responsive to the
    Hawai‘i Correctional Systems Oversight Commission’s requests
    with respect to reconsidering, lowering and monitoring the
    operational capacities of Hawai‘i correctional centers and
    facilities, and with respect to the conditions of
    confinement during the COVID-19 pandemic.
    Petition for Writ of Mandamus at 14-16, In re Individuals in Custody of
    Hawai‘i, SCPW-XX-XXXXXXX, docket #1, filed Aug. 12, 2020.
    58
    The expert would help address important yet unanswered questions
    that are critical to controlling COVID-19 within DPS facilities, including,
    but not limited to: Whether design capacity (or some lower number) is, in
    fact, the optimal number at which social distancing can be achieved. Should
    inmates receive priority access to vaccinations? How can officials implement
    consistent mass testing that represents an accurate picture of the COVID-19
    (. . . continued)
    41
    The relief sought by the Public Defender and amici is
    grounded in a constitutionally defined standard of human decency
    and justice:    the right to be free from cruel and unusual
    punishment.    The frightening and dangerous conditions within
    OCCC and other State correctional facilities subject inmates to
    a “gratuitous infliction of suffering” that serves no
    penological purpose.      There is no humane balance between the
    fear of contracting a lethal disease and the incarceration of
    those who are held for a nonviolent crime because poverty
    prevents them from posting bail.          There is no penological
    purpose that outweighs the release of pregnant inmates detained
    for nonviolent crimes.      There is no brand of justice that allows
    the incarceration of immunocompromised or elderly inmates who
    are accused of nonviolent offenses.          Yet, given the ever-present
    threat of COVID-19, gratuitous suffering serving no penological
    purpose is what distinguishes the circumstance of most of the
    men and women at OCCC.
    As occupants of a proven favorable habitat for COVID-
    19, the inmates at OCCC have good reason to fear contracting a
    (continued. . . )
    situation within DPS facilities? How effective are current screening methods
    in ensuring that new inmates, staff, and visitors do not carry COVID-19 into
    DPS facilities, and how can these methods be improved? How can inmates who
    exhibit symptoms or test positive for COVID-19 be quarantined in a way that
    is least detrimental to their mental health?
    42
    lethal disease.     By incarcerating, the State has taken away
    their freedom to protect themselves from COVID-19.             The
    presumption of innocence for all pretrial detainees held in
    OCCC, the nature of the nonviolent crimes of which most inmates
    are accused or convicted, and the fear of death inmates must
    live with after COVID-19 has “exploded” at OCCC,59 all weigh in
    favor of judicial intervention to protect the right of inmates
    at OCCC to be free from cruel and unusual conditions of
    confinement.    To do so is to comply with our duty to apply the
    mercy embraced by the Eighth and Fourteenth Amendments of the
    United States Constitution and article I, sections 5 and 12 of
    the Hawai‘i Constitution.60
    VII. Conclusion
    I therefore respectfully dissent to the failure of the
    Majority to intervene as requested by the Public Defender and
    59
    See supra note 26.
    60
    Lawyer and social justice scholar Bryan Stevenson explains
    the danger of a society that lacks compassion and tolerates injustice:
    We are all implicated when we allow other people to be
    mistreated. An absence of compassion can corrupt the
    decency of a community, a state, a nation. Fear and anger
    can make us vindictive and abusive, unjust and unfair,
    until we all suffer from the absence of mercy and we
    condemn ourselves as much as we victimize others. The
    closer we get to mass incarceration and extreme levels of
    punishment, the more I believe it’s necessary to recognize
    that we all need mercy, we all need justice, and-perhaps-we
    all need some measure of unmerited grace.
    Bryan Stevenson, Just Mercy:   A Story of Justice and Redemption 18 (paperback
    ed. 2015).
    43
    amici to protect the inmates at OCCC and other State
    correctional facilities from the lethal threat of the prime
    COVID-19 habitat in which they are held, as well as to the
    unilateral sua sponte suspension of HRPP Rules 5 and 10 by the
    Majority that violates the due process rights of pretrial
    detainees and exacerbates the overcrowded, cruel and unusual
    conditions of confinement at OCCC.
    DATED:   Honolulu, Hawaiʻi, February 18, 2021.
    /s/ Michael D. Wilson
    Associate Justice
    44