                                                              Electronically Filed
                                                              Supreme Court
                                                              SCPW-XX-XXXXXXX
                                                              24-AUG-2020
                                                              03:20 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

                             ORDER RE:
       PETTY MISDEMEANOR, MISDEMEANOR, AND FELONY DEFENDANTS
 AT THE MAUI COMMUNITY CORRECTIONAL CENTER, THE HAWAI‘I COMMUNITY
CORRECTIONAL CENTER, AND THE KAUA‘I COMMUNITY CORRECTIONAL CENTER
   (By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ.,
      and Chief Judge Ginoza, assigned by reason of vacancy,
            with Wilson, J., concurring and dissenting 1)

           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
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


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         A concurrence and dissent by Wilson, J., is forthcoming.
the filing and hearing of individualized motions for release.
On August 17, 2020, answers to the Petition were filed by:
(1) Nolan P. Espinda, Director of the Department of Public
Safety, State of Hawai‘i (“DPS”) and Edmund (Fred) K.B. Hyun,
chairperson of the Hawaiʻi Paroling Authority; (2) Mitchell D.
Roth, Prosecuting Attorney for the County of Hawaiʻi; (3) Donald
S. Guzman, Prosecuting Attorney for the County of Maui;
(4) Dwight D. Nadamoto, Prosecuting Attorney for the City and
County of Honolulu; and (5) Justin F. Kollar, Prosecuting
Attorney for the County of Kauaʻi.     The answers addressed the
OPD’s requested relief, stated objections and concerns, and
provided alternative considerations.
             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.     While the majority
of the cases are on O‘ahu, the neighbor island numbers have
increased in recent weeks.    In addition, since the Petition was
filed, it has been reported that at least two hundred forty
inmates and nearly fifty staff members have tested positive for
COVID-19.    Although the majority of these cases are related to
the O‘ahu Community Correctional Center (“OCCC”), there have been
positive COVID-19 test results in some of the other State
correctional centers and facilities.
             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 to
reduce the inmate populations.    Because the Maui Community
Correctional Center (“MCCC”), the Hawai‘i Community Correctional
Center (“HCCC”), and the Kaua‘i Community Correctional Center
(“KCCC”) are overcrowded and exceed design capacity, and given

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the current COVID-19 pandemic, they have the potential to not
only place the inmates at risk of death or serious illness, but
also endanger the lives and well-being of staff and service
providers who work there, their families, and members of the
community at large.     Although the volume of positive COVID-19
cases in the correctional centers and facilities varies between
the different islands, given the virulent spread of the virus
within close quarters, any spread of COVID-19 within any of the
correctional centers and facilities also has the potential to
tax the capacities of the health care systems on each of the
islands and 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 into the
community.
             Responding to the impact of this crisis in Hawai‘i’s
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, and the surge in COVID-19 positive test results
in our community, including the rising numbers in the State’s
correctional centers and facilities, 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, with respect to MCCC, HCCC, and
KCCC, as follows:
              Petty Misdemeanor or Misdemeanor Defendants

             1.   With regard to pretrial detainees charged solely
with petty misdemeanor or misdemeanor offenses, the respective


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court orders for detaining the individuals are temporarily
suspended and, by Wednesday, August 26, 2020, DPS shall release
such pretrial detainees, 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), violation of a restraining order
or injunction (HRS § 604-10.5), or any other crime in family
court, subject to the following conditions:
               a.   The inmate has not received a positive
COVID-19 test result, is not pending the result of a test that
has been taken, and is not exhibiting COVID-19 symptoms.
               b.   Additional inmates who later meet this
criteria shall be expeditiously released as set forth herein.
               c.   Before being released, the inmate shall
provide to DPS current contact information, including
residential address and/or telephone number, if available.
               d.   The inmate shall self-isolate for fourteen
days and wear a mask when within six feet of others.
               e.   The inmate shall immediately report the
development of COVID-19 symptoms to the Department of Health
(“DOH”) and shall thereafter follow directives from the DOH.
               f.   Each pretrial detainee released under this
provision is ordered to appear as follows, unless otherwise
ordered:
                    (i)   For those inmates in the second
                          circuit: on December 1, 2020 at 8:30
                          a.m., at the court that they last
                          appeared except all district court
                          cases will be held at the Maui
                          District Court, Hoapili Hale, 2145
                          Main Street, Wailuku, Hawai‘i 96793;


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                            if the pretrial detainee’s last
                            appearance was on Moloka‘i or Lānaʻi,
                            however, the OPD or defense counsel
                            may appear without the inmate
                            appearing in person.
                    (ii)    For those inmates in the third
                            circuit: on December 1, 2020 at 1:30
                            p.m. at the district court or circuit
                            court that they last appeared.
                    (iii)   For those inmates in the fifth
                            circuit: at the Fifth Circuit
                            Courthouse, Pu‘uhonua Kaulike
                            Building, 3970 Ka‘ana Street, Lihue,
                            Hawai‘i 96766, on the date and time as
                            ordered by the presiding judge.
Failure to comply with court orders or to appear may result in
further charges, including but not limited to, criminal
contempt.
               g.   All inmates under this category who have
tested positive should be retested in accordance with guidance
of the Centers for Disease Control and Prevention and/or the
DOH.
               h.   All inmates released under this provision
shall maintain contact with their attorneys and appear at all
future court hearings.
               i.   When an inmate is released, all conditions
of release originally imposed, if applicable, 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.


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               j.   Any no-contact order shall remain in force.
               k.   All inmates released under this provision
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 respective Mayors of each island.
               l.   All inmates released under this order shall
further comply with all specific directives provided to them by
DOH.
          2.   With regard to individuals incarcerated solely
due to petty misdemeanor or misdemeanor convictions, the
respective court orders for incarcerating or imprisoning the
individual are temporarily suspended and the provisions provided
under Paragraph 1 above shall also apply except for 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), violation
of a restraining order or injunction (HRS § 604-10.5), or any
other crime in family court.
                         Felony Defendants
          3.   An expedited process, as set forth in paragraph
4, below, shall be undertaken to address the issues related to
release and temporary suspension of incarceration 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


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     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
     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).


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                 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 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).
          4.     An “eligible inmate” is an inmate or detainee who
falls within the categories set forth in Paragraph 3.a., 3.b.,
or 3.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 DPS on
August 22, 2020.      The OPD or private or court-appointed counsel
may file supplemental information regarding any eligible inmate
by Tuesday, August 25, 2020, at 4:00 p.m.




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                b.   Any objection to the release and temporary
suspension of incarceration of any eligible inmates shall be
filed by Wednesday, August 26, 2020 at 4:00 p.m.
                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, the
respective circuit or family courts shall enter orders by
Monday, August 31, 2020 determining whether each such eligible
inmate should be released.
                e.   Orders allowing release and temporary
suspension of incarceration shall reflect that they are subject
to the condition in Paragraph 5 below.
           5.   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.




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             6.     Additional individual motions may be filed for
later identified eligible inmates.       Any objections to such
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.
                              All Defendants
             7.     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
in further charges, including but not limited to, criminal
contempt.
             8.     In addition, all eligible inmates released
pursuant to this order shall comply with the following:


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                 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 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 respective Mayors of each island.
                 e.   The inmate shall further comply with all
specific directives provided to them by DOH.
           9.    All notices and information required under HRS
§ 801D-4 shall be provided.
                         Other Requirements
           10.   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, the prosecuting attorney of the
respective circuits, 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.
           11.   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


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also does not affect DPS’s authority under the law to release
inmates on its own accord.
            12.   This court reserves its authority to order other
measures.
                  DATED: Honolulu, Hawai‘i, August 24, 2020.
                                 /s/ Mark E. Recktenwald
                                 /s/ Paula A. Nakayama
                                 /s/ Sabrina S. McKenna
                                 /s/ Michael D. Wilson
                                 /s/ Lisa M. Ginoza




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