Honolulu, Hawai‘i: Last week, the Hawai‘i Office of the Public Defender filed two petitions asking the Hawaiʻi Supreme Court to, among other things, appoint a special master to consider the humanitarian release during the escalating COVID-19 crisis of certain people in jail and prison, such as those sentenced to probation but still serving time in jail, people detained on cash bail they cannot afford, and people serving short sentences.
On Wednesday, April 1, 2020, the American Civil Liberties Union of Hawai‘i (“ACLU of Hawai‘i”) and the Lawyers for Equal Justice (“LEJ”) filed a motion seeking leave to file an amicus brief in support of the State of Hawai‘i Office of the Public Defender’s petition. On Thursday, April 2, 2020, the Hawaiʻi Supreme Court granted the Hawai‘i Office of the Public Defender’s motion and appointed Judge Daniel R. Foley as the special master “to work with the parties in a collaborative and expeditious manner to address the issues raised in the two petitions and to facilitate a resolution while protecting public health and public safety.” The Court also granted the motion to file LEJ and the ACLU of Hawaii’s amicus brief.
ACLU of Hawai‘i Legal Director Mateo Caballero said: “Public health experts across the United States agree that during this COVID-19 crisis overcrowded jails and prisons pose a great health risk to not only the people incarcerated but also to correctional staff, their families, and the community at large. For that reason, courts and jurisdictions everywhere are taking bold and courageous action to reduce the population in their jails and prisons to meet basic public health and constitutional standards and ensure the safety and health of people under their care. Ultimately, this is about people with families and loved ones and our commitment under the constitution to not put their lives and health unnecessarily at risk.”
On March 31, 2020, Honolulu Mayor Kirk Caldwell stated in a press conference that prisons are the “safest place in terms of COVID-19.”
According to the Centers for Disease Control and Prevention, this is not true. Per CDC guidance, people in jails and prisons are particularly vulnerable to outbreaks of contagious illnesses — such as COVID-19 — because they are being held in close quarters and often in poor health conditions. To add to the concern, Hawai‘i prisons and jails are overcrowded with pretrial detainees and holding populations that exceed their operational bed capacities, making social distancing nearly impossible.
Lawyers for Equal Justice Litigation Director Tom Helper said: “We asked the court to appoint an individual with the power to release individuals who pose no danger to the public, including hundreds who have not been convicted of anything and are in custody only because they cannot afford bail. The Court appointed retired Judge Daniel R. Foley. I am confident that Judge Foley will ensure that individuals who pose a threat to the public are not released, while reducing the population in our overcrowded facilities to levels that are safer for those incarcerated and for the employees of the correctional system.”
ACLU of Hawai‘i Staff Attorney Wookie Kim said: “Whether we like it or not, the coronavirus is going to hit Hawaiʻi hard, and soon. When it does, it is people who are stuck behind bars — who are kept in cells designed for one person, but that in reality hold three or more people each — who are most vulnerable to contracting COVID-19 and experiencing severe suffering or even death. It is imperative that the courts, prosecutors, DPS, and other officials take immediate and decisive action to prevent that outcome. Such action would benefit not only people who are in Hawaiʻi jails and prisons, but also correctional staff, their families, and the community at large.”