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

• Court: Hawaii Supreme Court
• Decided: February 18, 2021
• Docket: SCPW-20-0000509
• Status: Published

Opinion

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

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-

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

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

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.

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

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