Honolulu, Hawai‘i: On Monday, September 28, 2020, the American Civil Liberties Union (“ACLU”), the American Civil Liberties Union of Hawai‘i (“ACLU of Hawaiʻi”), and the Hawaii Disability Rights Center filed an amicus brief in support of the State of Hawai‘i Office of the Public Defender’s petition, which asks the Hawaiʻi Supreme Court to consider the humanitarian release of certain people in Hawaiʻi jails and prisons in light of recent outbreaks of COVID-19 inside those facilities.
The brief shows how the State’s ongoing response to COVID-19 in jails and prisons has been “utterly abysmal,” and is largely the result of the State’s failures to take necessary measures. To illustrate these failures, the brief includes sworn declarations from Dr. Pablo Stewart, an attending psychiatrist at the Oahu Community Correctional Center and a prison medical expert, and Diane DiMaria, who is the mother of an African-American man incarcerated at Halawa Correctional Facility who has several serious disabilities that make him particularly susceptible to COVID-19.
The brief makes several arguments: First, that the Court should adopt legal standards under the Hawaiʻi Constitution that provide greater protections to people who are incarcerated by the State. Second, that even judged by the strict federal “deliberate indifference” standard, the State’s response to the pandemic within jails and prisons has been unconstitutional. Third, that the States’ failed response also unlawfully discriminates against people with disabilities under federal disability rights laws.
In light of these violations, the brief asks the Court to consider granting more relief to people incarcerated by the State, including by prioritizing the release of people who are medically vulnerable or have disabilities, setting population targets, appointing an independent public health expert, requiring the State to comply with its reentry-related obligations, and increasing and regularizing COVID-19 testing at all facilities.
The ACLU of Hawaiʻi filed a separate amicus brief in April 2020 supporting the Public Defender’s March 2020 petitions asking for similar relief.
OCCC Attending Psychiatrist and Prison Medical Expert Dr. Pablo Stewart said: “COVID-19 remains as real of a threat to our community today is it did back in March, when the virus was first detected in Hawaiʻi. I have been providing care at OCCC for over a year, so I have seen what measures the State has been taking inside correctional facilities to address COVID-19 during the pandemic. Unfortunately, at least within OCCC, the State has not taken sufficient measures to address the risks of serious harm and death presented by COVID-19. We need to do everything possible to get the appropriate people out of these unsafe and inhumane conditions, and to instead give them the medical care, housing, and other supports that they need.”
ACLU Disability Rights Program Staff Attorney Zoe Brennan-Krohn said: “The current situation in Hawaii’s correctional facilities is not just a medical and moral emergency, it’s also a violation of the U.S. Constitution and disability rights laws. The State has an affirmative duty to ensure that people with disabilities are given reasonable accommodations. In the context of the pandemic, immediate action must be taken to protect those who are most immediately in danger: people with underlying medical conditions and disabilities that make them particularly susceptible to COVID-19.”
ACLU of Hawai‘i Staff Attorney Wookie Kim said: “The State is still completely ignoring its obligations under the U.S. and Hawaiʻi constitutions to provide safe and humane conditions to people incarcerated in jails and prisons during this ongoing public health crisis. This is the case even though many correctional and public health experts strongly advised that the State needed to take certain preventive measures. As a result, people in Hawaiʻi jails and prisons have suffered immensely, and also remain especially vulnerable to further harm from COVID-19. We hope that the Supreme Court will take this important opportunity to clarify that the Hawaiʻi Constitution holds the State accountable for its abdication of responsibility towards people in its custody.”