                                                          Electronically Filed
                                                          Supreme Court
                                                          SCPW-XX-XXXXXXX
                                                          14-AUG-2020
                                                          06:25 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

                           INTERIM ORDER
        (By: Recktenwald, C.J., Nakayama, and McKenna, JJ.,
    and Chief Judge Ginoza, assigned by reason of vacancy, with
                      Wilson, J., 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 the 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,


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     A dissent by Wilson, J., is forthcoming.
without the filing and hearing of individualized motions for

release.   At the time the petition was filed, it was reported

that more than 80 inmates and at least twelve staff members had

tested positive for COVID-19 at the O‘ahu Community Correctional

Center (“OCCC”).

           By order entered on August 13, 2020, this court

directed the Department of Public Safety (“DPS”) and Dwight

Nadamoto, the Prosecuting Attorney for the City and County of

Honolulu (“Prosecuting Attorney Nadamoto”), to file an answer to

the Petition solely with respect to OCCC.   In the answer, DPS

and Prosecuting Attorney Nadamoto were to address the process

that should be implemented to facilitate the release of the

category of defendants requested in the Petition, should the

court allow for such release, including:    the COVID-19 screening

process; the mechanism for providing the COVID-19 testing

information to the court for each defendant identified for

release; how positive, negative, and pending test results should

be handled; the expected time frame to effectuate these steps;

and any other issues that may be implicated by the requested

release.   DPS and Prosecuting Attorney Nadamoto timely answered.

           On August 14, 2020, this court held a hearing to

address the Petition and the COVID-19 situation at OCCC.

Appearing at the hearing were:   Susan Arnett on behalf of the

OPD; Clare Connors on behalf of DPS, along with DPS Director

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Nolan P. Espinda; and Prosecuting Attorney Nadamoto.   The OPD

advocated for the immediate release of a certain category of

non-violent defendants.   Prosecuting Attorney Nadamoto expressed

that individualized assessments should be conducted for any

inmate considered for release.   DPS explained, among other

things, the status of its inmate COVID-19 testing process and

the Department of Health’s assistance in addressing the surge in

COVID-19 positive inmates at OCCC.

          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.   This court

recognizes the impact of COVID-19 on Hawaiʻi’s community

correctional centers and facilities.   This court also recognizes

public safety 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.

          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 populations at OCCC to

protect those who work at or are detained at OCCC, their

families, and the community.   The immediacy of this concern is

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also exacerbated in that the rising numbers of COVID-19 cases at

OCCC will tax the limited resources of community health care

providers, including hospital beds, ventilators, and personal

protective equipment, and will also require the expenditure of

additional resources to provide constitutionally mandated

medical care.

          At this time, additional information is necessary to

assist the court and the parties in addressing the public health

and safety concerns raised by the cluster of COVID-19 cases at

OCCC and the Petition’s request for relief.

          Accordingly, upon consideration of the submissions and

record in SCPW-XX-XXXXXXX, the arguments presented at the

hearing, and the current state of 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,

          IT IS HEREBY ORDERED that:

          1.    No later than 12:00 p.m. on Monday, August 17,

2020, DPS shall provide to the OPD, Prosecutor Nadamoto, and the

Administrative Director of the Courts a list of all inmates at

OCCC who meet the following criteria:

                a.   Inmates serving a sentence (not to exceed 18

                     months) as a condition of felony deferral or

                     probation except for (i) inmates serving a

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     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

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                    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); and

               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).

          2.   To the extent possible, the list shall include

the following information:

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                  a.   The inmate’s name;

                  b.   All criminal case numbers for which the

                       inmate is held;

                  c.   The inmate’s status (e.g., pretrial felon,

                       sentenced felony probationer, pretrial

                       misdemeanant, petty misdemeanant, etc.); and

                  d.   The name(s) of the trial or sentencing

                       judge(s), if available.

          3.      No later than 12:00 p.m. on Monday, August 17,

2020, DPS shall also provide to the OPD, Prosecuting Attorney

Nadamoto, and the Administrative Director of the Courts (for use

by judges and court personnel) a list of all inmates at OCCC who

have been tested, the dates of the tests, and the test results.

These lists shall be confidential.       Updated lists shall be

provided daily.

          4.      This court reserves its authority to order other

measures based on changed circumstances.

          5.      This order does not affect DPS’s authority under

the law to release inmates on its own accord.

                  DATED: Honolulu, Hawai‘i, August 14, 2020.

                                 /s/ Mark E. Recktenwald

                                 /s/ Paula A. Nakayama

                                 /s/ Sabrina S. McKenna

                                 /s/ Lisa M. Ginoza

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