                                                               Electronically Filed
                                                               Supreme Court
                                                               SCPW-XX-XXXXXXX
                                                               27-AUG-2020
                                                               03:49 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
              (By: Recktenwald, C.J., Nakayama, J.,
   and Chief Judge Ginoza, assigned by reason of vacancy, with
                McKenna, J., and Wilson, J., each
              concurring and dissenting separately 1)

            On August 12, 2020, the Office of the Public Defender
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
the filing and hearing of individualized motions for release.



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         A concurrence and dissent by Wilson, J., is forthcoming.
             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.
             To date, the court has entered several orders to
address the issues raised in the Petition:
      (1)    Amended Order Re: Petty Misdemeanor and Misdemeanor
             Defendants, filed on August 17, 2020 (“Misdemeanor
             Order”);

      (2)    Amended Order Re: Felony Defendants, filed on August
             18, 2020 (“Felony Order”);

      (3)    Order Re: Petty Misdemeanor, Misdemeanor, and Felony
             Defendants at the Maui Community Correctional Center,
             the Hawai‘i Community Correctional Center, and the
             Kauai Community Correctional Center, filed on August
             24, 2020 (“Neighbor Island Order”); and

      (4)    Order Granting in Part and Denying in Part Motion for
             Clarification and/or Reconsideration, filed on August
             26, 2020.

             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, including at the correctional centers and
facilities, with record numbers of positive cases and increased
hospitalizations being reported.       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

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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.       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 current state of the COVID-19 pandemic
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 as follows:
          1.   To the extent there are individuals serving
intermittent sentences, the custodial portion of such
defendants’ intermittent sentence shall be suspended while
Governor Ige’s Emergency Proclamations remain in effect, or
alternatively the sentences may be deemed satisfied at the
discretion of the sentencing judge.       The trial courts are
discouraged from imposing intermittent sentences while Governor
Ige’s Emergency Proclamations remain in effect.
          2.   For purposes of this order, the following are
"excluded offenses":
               a.      all felony offenses in HRS chapter 707,
including sexual assault;
               b.      burglary in the first or second degree (HRS
§§ 708-810, 708-811);
               c.    robbery in the first or second degree (HRS §§
708-840, 708-841);
               d.      abuse of family or household members (HRS §
709- 906(7) & (8)), violation of a temporary restraining order
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(HRS § 586-4), violation of an order for protection (HRS § 586-
11), or any other family court crimes;
                 e.   violation of a restraining order or
injunction (HRS § 604-10.5);
                 f.   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));
                 g.   violation of interstate or intrastate travel
quarantine requirements, as ordered pursuant to HRS ch. 127A;
and
                 h.   attempted commission of the offenses (HRS §§
705-500, 705-501) specified in a through g above.
          3.     With regard to individuals who have been arrested
or detained solely on petty misdemeanor or misdemeanor offenses
that are not "excluded offenses" since the Misdemeanor Order or
the Neighbor Island Order were filed and through the filing date
of this order, such individuals shall expeditiously be released
subject to the terms and conditions of release set forth in the
Misdemeanor Order or Neighbor Island Order.
          4.     With regard to individuals who are arrested and
detained solely on petty misdemeanor or misdemeanor offenses
after the filing date of this order that are not "excluded
offenses," the respective trial court shall not set bail but
shall release such individuals on their own recognizance or
supervised release, and may impose conditions of release under
HRS § 804-7.1.
          5.     With regard to individuals who are arrested and
detained solely on felony offenses that are not "excluded
offenses" after the filing date of this order, the trial courts
are encouraged to regularly employ the practice of releasing
defendants without imposing bail, including the release of
inmates on their own recognizance, on signature bonds, or on

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supervised release, unless the defendant poses a significant
risk to public health or safety, and should consider other
conditions of release under HRS § 804-7.1, including but not
limited to, confinement to a home or other location with or
without electronic monitoring.
            6.    With regard to the Neighbor Island Order, it is
clarified that an inmate who received a positive COVID-19 test
result may be released without a re-test so long as the inmate
is determined to no longer be infectious pursuant to the
guidelines of the Centers for Disease Control and Prevention,
and subject to the terms and conditions of release set forth in
the Neighbor Island Order.
            7.    With regard to defendants for whom motions for
revocation or modification of probation have been filed based on
convictions that are not "excluded offenses," judges should not
issue bench warrants unless a defendant poses a significant risk
to public health or safety.
            8.    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.
            9.    This court reserves its authority to order other
measures.
            10.   This order shall remain in effect until further
order of this court.
            DATED: Honolulu, Hawai‘i, August 27, 2020.
                                           /s/ Mark E. Recktenwald
                                           /s/ Paula A. Nakayama
                                           /s/ Lisa M. Ginoza


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