In re Individuals in Custody of the State of Hawai'i

Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
18-AUG-2020
04:18 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
AMENDED ORDER RE:
FELONY DEFENDANTS1
(By: Recktenwald, C.J., Nakayama, and McKenna, JJ.,
and Chief Judge Ginoza, assigned by reason of vacancy,
with Wilson, J., concurring and dissenting 2)
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
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This amended order: (1) clarifies that the process set forth in the
order is for motions for release and temporary suspension of incarceration;
(2) amends Paragraph 1 to include a category of inmates who are awaiting
adjudication of motions for revocation or modification of probation or
motions to set aside or modify deferral, as well as pretrial inmates who have
pled guilty or no-contest and are awaiting sentencing, subject to exceptions;
(3) amends Paragraph 2.b. to set a deadline for objections to modification of
probation of any eligible inmate; and (4) amends Paragraph 2.d. to set a
deadline for disposing of motions for release of eligible defendants in HOPE
Probation.
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A concurrence and dissent by Wilson, J., is forthcoming.
centers and facilities in an effort to mitigate the harm that
the COVID-19 pandemic may inflict upon 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, without
the filing and hearing of individualized motions for release.
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. Since the Petition
was filed, there have been more than one hundred eighty-one
inmates and thirty staff members that have tested positive for
COVID-19 at the O‘ahu Community Correctional Center (“OCCC”), and
testing of inmates at OCCC is ongoing. 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 population at OCCC to protect those who work at or
are detained at OCCC, their families, and the community.
This court recognizes the impact of COVID-19 on
Hawaiʻi’s community correctional centers and facilities –- and
the urgency by which suitable yet balanced action is required.
The COVID-19 outbreak at OCCC, where appropriate physical
distancing is not possible, has the potential to not only place
the inmates at risk of death or serious illness, but also
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endanger the lives and well-being of staff and service providers
who work at OCCC, their families, and members of the community
at large. Because of the virulent spread of the virus within
close quarters, the COVID-19 outbreak at OCCC also has the
potential to tax the limited resources of Hawai‘i’s community
health care providers.
This court also recognizes, however, public safety and
health 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.
Upon consideration of the submissions and record in
SCPW-XX-XXXXXXX, the arguments presented at the August 14, 2020
hearing, and the surge in 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, Governor David Y. Ige’s Emergency
Proclamations, and HRS § 601-1.5,
IT IS HEREBY ORDERED that:
1. An expedited process, as set forth in paragraph
2, below, shall be undertaken to address the issues related to
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release and temporary suspension of incarceration for the
following categories of inmates at OCCC:
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)), or unauthorized entry in a
dwelling in the first degree or 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. All pretrial detainees charged with a
felony, and those inmates who have pled
guilty or no-contest and are awaiting
sentencing, except those charged with a
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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)), or
unauthorized entry in a dwelling in the
first degree or 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).
c. Inmates charged with a felony and awaiting
adjudication of motions for revocation or
modification of probation or motions to set
aside or modify deferral, 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
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first or second degree (HRS §§ 708-840, 708-
841), abuse of family or household members
(HRS § 709-906(7)&(8)), or unauthorized
entry in a dwelling in the first degree or
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. An “eligible inmate” is an inmate or detainee who
falls within the categories set forth in Paragraph 1.a., 1.b.,
and 1.c. above. Under the expedited process:
a. Motions for release and temporary suspension
of incarceration will be presumed to have been filed for
eligible inmates identified in the lists provided by the
Department of Public Safety (“DPS”) on August 17, 2020. The OPD
or private or court-appointed counsel may file supplemental
information regarding any eligible inmate by Tuesday, August 18,
2020, at 4:00 p.m.
b. Any objection to the release and temporary
suspension of incarceration of any eligible inmates shall be
filed by Wednesday, August 19, 2020 at 4:00 p.m. Any objection
to modification of probation of any eligible inmates shall be
filed by Thursday, August 20, 2020.
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c. The respective courts should adjudicate
these matters on a non-hearing basis but may, in extraordinary
circumstances, set an expedited telephonic or video hearing.
The courts may deny release of an eligible inmate if release
would pose a significant risk to the safety of the inmate or the
public. Whether a verified residence for an inmate will be
required in a specific case will be left to the discretion of
the judge, but alternative means of maintaining contact such as
telephone, probation review hearings, or scheduled contacts with
probation officers may also be employed. While judges are
required to make individualized determinations, judges must not
require verified residences for defendants, unless such a
condition is supported by specific factual findings in an
individual case.
d. Except for eligible inmates for whom
expedited telephonic or video hearings are scheduled, as well as
those defendants who are in HOPE Probation, the respective
circuit or family courts shall enter orders by Monday, August
24, 2020 determining whether each such eligible inmate should be
released. For those eligible inmates in HOPE Probation, such
orders shall be entered by Wednesday, August 26, 2020.
e. Orders allowing release and temporary
suspension of incarceration shall reflect that they are subject
to the condition in Paragraph 3 below.
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3. Upon entry of the trial court’s release order,
DPS shall release the inmate only if the inmate has not received
a positive COVID-19 test result, does not have pending the
result of a test that has been taken, and is not exhibiting
COVID-19 symptoms.
4. When an inmate is released, all conditions of
release originally imposed or set forth in any subsequent order,
other than in-person reporting, shall remain in full force and
effect. DPS shall inform all inmates, prior to their release,
of their continuing obligation to abide by conditions of
deferral or probation or pretrial release to promote public
safety, and shall further advise them that:
a. All inmates shall maintain contact with
their attorney and appear at all future court hearings.
b. Any no-contact order shall remain in force.
c. Any driver’s license suspension shall remain
in force.
d. Obligations to report to probation officers
in-person shall be converted to telephone or video reporting
under further order of the respective court.
e. Each inmate released under this order is
ordered to appear as directed by the presiding judge. Failure
to comply with court orders or to appear as directed may result
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in further charges, including but not limited to, criminal
contempt.
5. In addition, all eligible inmates released
pursuant to this order shall comply with the following:
a. Before being released, the inmate shall
provide to DPS current contact information, including
residential address and/or telephone number, if available.
b. The inmate shall self-isolate for fourteen
days and wear a mask when within six feet of others.
c. The inmate shall immediately report the
development of COVID-19 symptoms to the Department of Health
(“DOH”) and shall thereafter follow directives from DOH.
d. The inmate shall comply with any federal,
state, or local laws, directives, orders, rules, and regulations
regarding conduct during the declared COVID-19 pandemic
emergency, including “social distancing” mandates and any
proclamations issued by Governor David Y. Ige or the Governor’s
designee during the COVID-19 emergency, as well as any mandates
or proclamations issued by the Mayor of the City and County of
Honolulu.
e. The inmate shall further comply with all
specific directives provided to them by DOH.
6. Additional individual motions may be filed for
later identified eligible inmates. Any objections to such
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release must be filed within two business days of the filing of
the motion. The respective circuit or family courts shall
expeditiously address whether each such eligible inmate should
be released. Any additional eligible inmates later released
shall be subject to all applicable provisions set forth in this
order.
7. This order does not preclude any party from
taking any other steps as may be deemed appropriate to obtain
the release of an inmate during this time of emergency or stay
any pending motions seeking the release of inmates. This order
also does not affect DPS’s authority under the law to release
inmates on its own accord.
8. DPS shall provide a list of all inmates released
under this order, as well as the contact information provided by
those inmates, to the OPD, Prosecuting Attorney Dwight Nadamoto,
and the Administrative Director of the Courts no later than the
next day following the inmate’s release. The list shall include
the name of the inmate and the criminal case number(s) for which
the inmate has been held.
9. All notices and information required under HRS
§ 801D-4 shall be provided.
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10. This court reserves its authority to order other
measures.
DATED: Honolulu, Hawai‘i, August 18, 2020.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Lisa M. Ginoza
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