To fight COVID in jails and prisons we can simultaneously protect both public health and public safety

Since the start of the COVID-19 pandemic, we’ve advocated, lobbied, filed amicus briefs, written in the newspapers, appeared on tv, marched, rallied, and spoke out to stop the spread of COVID-19 in our jails and prisons.  We warned that a COVID19 outbreak in Hawaii’s prisons and jails would spread like a vicious wildfire. And it has. 

As of September 2021, over 2,800 people incarcerated in DPS facilities and more than 350 correctional staff have contracted COVID-19 since the pandemic began, including nine deaths in that group.

District Court Judge Jill Otake recently ruled DPS failed to follow its own Pandemic Response Plan and declared that Hawai‘i prisons and jails responded so poorly to the spread of COVID-19 that corrections officials demonstrated “deliberate indifference” to the threat the disease posed to people inside. DPS: 

• failed to provide adequate water, sanitary living conditions, bathroom access, and proper hygiene, 
• failed to separate inmates with positive test results, 
• failed to properly quarantine new intakes, 
• failed to communicate proper COVID-19 protocols to DPS staff and incarcerated persons, 
• failed to protect older and immunocompromised individuals, and failed to allow adequate social distancing, enforce mask wearing, and adequately evaluate, monitor, and treat those who contract COVID-19.
   

People in jail and prison have a constitutional right to a healthy and safe environment. 

DPS has plainly violated—and continues to violate—pretrial detainees’ and postconviction prisoners’ rights to due process and to be free from cruel and unusual punishment.  To be clear that no one, regardless of what crime they are accused or have been convicted of, should be subjected to cruel and unusual punishment—a stronger presumption of release should be used for three groups of incarcerated people:

1. Pretrial detainees, many of whom are incarcerated just because they can’t afford bail; 

• • Hawaiʻi incarcerates people pretrial at an alarmingly high rate because they are poor—not because they are a flight risk or a danger to the community.

2. People who have committed technical violations of probation or parole, and are therefore incarcerated for things like missing curfew; and 

• • Technical violations can exist for minor things like forgetting to inform a parole officer about a new address, failing to retain employment, missing a curfew, hitchhiking, or showing up to a meeting late.  

3. Kūpuna, who are more vulnerable to COVID-19 and present a lower risk of committing crimes.

• • The elderly are at greater risk of contracting or succumbing to COVID-19.  At the same time, they also present the lowest risk to public safety. That is because elderly people “age out” of crime.

Populations should be reduced in DPS facilities so that they comply with the “infectious disease emergency capacities” established by the Oversight Commission which, by law, are mandatory.  

In 2020, we saw prosecutors and legislators fear mongering about the threat to public safety that releases might cause.  But we know from the Lawyers for Equal Justice report, Outbreak, that of those who were released and re-arrested, the majority (roughly 90%) were charged with offenses relating directly to homelessness and poverty, not because of violent activity.

Officials must reduce the number of people in prisons and jails by not incarcerating anyone for low-level charges, releasing those who are bail-eligible, and releasing those who are disabled and otherwise medically vulnerable to the virus.  

Sign petition here.  

First released in April 2020