                                                               Electronically Filed
                                                               Supreme Court
                                                               SCPW-XX-XXXXXXX
                                                               17-AUG-2020
                                                               04:05 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:
                        FELONY DEFENDANTS
       (By: Recktenwald, C.J., Nakayama, and McKenna, 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

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         A concurrence and dissent by Wilson, J., is forthcoming.
from the State’s correctional centers and facilities, without

the filing and hearing of individualized motions for release.

             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.    Since the Petition

was filed, there have been one hundred eighty-one inmates and

thirty staff members that have tested positive for COVID-19 at

the O‘ahu Community Correctional Center (“OCCC”), and testing of

inmates at OCCC is ongoing.    Given the rising number of COVID-19

cases at OCCC and the difficulties with social distancing, there

is urgent and immediate concern in reducing the inmate

population at OCCC to protect those who work at or are detained

at OCCC, their families, and the community.

             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.

The COVID-19 outbreak at OCCC, where appropriate physical

distancing is not possible, has 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 at OCCC, their families, and members of the community

at large.    Because of the virulent spread of the virus within

close quarters, the COVID-19 outbreak at OCCC also has the

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potential to tax 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 at OCCC into

the community.

          Responding to the impact of this crisis in our

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, the arguments presented at the August 14, 2020

hearing, and the surge in COVID-19 positive test results in our

community, including at OCCC, 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 that:

          1.     An expedited process, as set forth in paragraph

2, below, shall be undertaken to address the issues related to

release for the following categories of inmates at OCCC:

                 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)), and 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, 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 or in the

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                      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).

            2.   An “eligible inmate” is an inmate or detainee who

falls within the categories set forth in Paragraph 1.a and 1.b

above.    Under the expedited process:

                 a.   Motions for release will be presumed to have

been filed for eligible inmates identified in the lists provided

by the Department of Public Safety (“DPS”) on August 17, 2020.

The OPD or private or court-appointed counsel may file

supplemental information regarding any eligible inmate by

Tuesday, August 18, 2020, at 4:00 p.m.

                 b.   Any objection to the release or for

modification of probation of any eligible inmates shall be filed

by Wednesday, August 19, 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

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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 24, 2020 determining whether each such eligible

inmate should be released.   Orders allowing release shall

reflect that they are subject to the condition in Paragraph 3

below.

           3.   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.

           4.   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




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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.

            5.   In addition, all eligible inmates released

pursuant to this order shall comply with the following:

                 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.




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                   c.   The inmate shall immediately report the

development of COVID-19 symptoms to the Department of Health

(“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 Mayor of the City and County of

Honolulu.

                   e.   The inmate shall further comply with all

specific directives provided to them by DOH.

            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.

            7.     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

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any pending motions seeking the release of inmates.       This order

also does not affect DPS’s authority under the law to release

inmates on its own accord.

            8.    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, Prosecuting Attorney Dwight Nadamoto,

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.

            9.    All notices and information required under HRS

§ 801D-4 shall be provided.

            10.   This court reserves its authority to order other

measures.

            DATED: Honolulu, Hawai‘i, August 17, 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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