                                                          Electronically Filed
                                                          Supreme Court
                                                          SCPW-XX-XXXXXXX
                                                          19-AUG-2020
                                                          06:04 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, McKenna, and Wilson, JJ.,
      and Chief Judge Ginoza, assigned by reason of vacancy)

           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,
without filing and hearing of individualized motions for
release.
     In response to the petition, answers 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 in COVID-19
cases, with record numbers of positive cases and increased
hospitalizations being reported daily.    While the majority of
the cases are on O‘ahu, the neighbor island numbers have
increased in recent days.    In addition, since the Petition was
filed, it has been reported that more than two hundred inmates
and over forty staff members have tested positive for COVID-19.
While the majority of 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.    This
court also recognizes, however, the significant public safety
concerns regarding the release of inmates into the community.
While there is an urgent and immediate concern to respond to the
impact of this crisis in our community correctional centers and
facilities, such response requires a careful consideration of
interests, both for public health and public safety.
          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 surge of COVID-19 cases in the


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State, including at the correctional centers and facilities, and
the Petition’s request for relief.
          Accordingly, upon consideration of the submissions and
record in SCPW-XX-XXXXXXX, and the current state of COVID-19
positive test results in our community and 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 that:
          1.   No later than 12:00 p.m. on Saturday, August 22,
2020, DPS shall provide to the OPD, the county prosecutors, and
the Administrative Director of the Courts a list of all inmates
at its correctional centers and facilities (excluding OCCC) who
meet the following criteria, as applicable:
               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


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     attempt to commit these specific offenses
     (HRS §§ 705-500, 705-501).
b.   Inmates serving sentences solely 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), violation of a restraining
     order or injunction (HRS § 604-10.5), or any
     other crime in family court;
c.   All pretrial detainees charged with a petty
     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, 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

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                    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).
               e.   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).
          2.   To the extent possible, the list shall include
the following information:
               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 felon probationer, pretrial
                    misdemeanant, petty misdemeanant, etc.); and

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                 d.   The name(s) of the trial or sentencing
                      judge(s), if available.
            3.   This court reserves its authority to order other
measures.
            4.   This order does not affect any of the orders
issued in this proceeding.    This order also does not affect
DPS’s authority under the law to release inmates on its own
accord.
            DATED: Honolulu, Hawai‘i, August 19, 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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