                                                                Electronically Filed
                                                                Supreme Court
                                                                SCPW-XX-XXXXXXX
                                                                18-AUG-2020
                                                                04:18 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

                         AMENDED ORDER RE:
                         FELONY DEFENDANTS1
        (By: Recktenwald, C.J., Nakayama, and McKenna, JJ.,
      and Chief Judge Ginoza, assigned by reason of vacancy,
            with Wilson, J., concurring and dissenting 2)

             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


      1
         This amended order: (1) clarifies that the process set forth in the
order is for motions for release and temporary suspension of incarceration;
(2) amends Paragraph 1 to include a category of inmates who are awaiting
adjudication of motions for revocation or modification of probation or
motions to set aside or modify deferral, as well as pretrial inmates who have
pled guilty or no-contest and are awaiting sentencing, subject to exceptions;
(3) amends Paragraph 2.b. to set a deadline for objections to modification of
probation of any eligible inmate; and (4) amends Paragraph 2.d. to set a
deadline for disposing of motions for release of eligible defendants in HOPE
Probation.
      2
          A concurrence and dissent by Wilson, J., is forthcoming.
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

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 more than 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

                                   2
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

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



                                  3
release and temporary suspension of incarceration 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

                    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

                                4
     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).

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

                 5
                       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).

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

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

and 1.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 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 and temporary

suspension of incarceration of any eligible inmates shall be

filed by Wednesday, August 19, 2020 at 4:00 p.m.    Any objection

to modification of probation of any eligible inmates shall be

filed by Thursday, August 20, 2020.




                                   6
                  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, as well as

those defendants who are in HOPE Probation, the respective

circuit or family courts shall enter orders by Monday, August

24, 2020 determining whether each such eligible inmate should be

released.     For those eligible inmates in HOPE Probation, such

orders shall be entered by Wednesday, August 26, 2020.

                  e.   Orders allowing release and temporary

suspension of incarceration shall reflect that they are subject

to the condition in Paragraph 3 below.

                                   7
             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

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




                                   8
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.

                 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

                                  9
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

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
            10.   This court reserves its authority to order other

measures.

            DATED: Honolulu, Hawai‘i, August 18, 2020.

                                 /s/ Mark E. Recktenwald

                                 /s/ Paula A. Nakayama

                                 /s/ Sabrina S. McKenna

                                 /s/ Lisa M. Ginoza




                                  11
