                                                              Electronically Filed
                                                              Supreme Court
                                                              SCPW-XX-XXXXXXX
                                                              16-AUG-2020
                                                              06:14 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 AND MISDEMEANOR 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
from the State’s correctional centers and facilities, without
the filing and hearing of individualized motions for release.




     1   A concurrence and dissent by Wilson, J., is forthcoming.
             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 seventy inmates and
thirty staff members that have tested positive for COVID-19 at
the O‘ahu Community Correctional Center (“OCCC”), and mass
testing of all inmates at OCCC continues.    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
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.


                                   2
            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 as follows:
            1.    With regard to pretrial detainees charged with a
petty misdemeanor or a misdemeanor offense, 2 the respective court
orders for detaining the individuals are temporarily suspended
and, by Wednesday, August 19, 2020, the Department of Public
Safety (“DPS”) shall release from OCCC such pretrial detainees,
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) subject to the following conditions:
                  a.    The inmate has not received a positive
COVID-19 test result, is not pending the result of a test that
has been taken, and is not exhibiting COVID-19 symptoms.
                  b.    Additional inmates who later meet these
criteria shall be expeditiously released as set forth herein.
                  c.    Before being released, the inmate shall
provide to DPS current contact information, including
residential address and/or telephone number, if available.
                  d.    The inmate shall self-isolate for fourteen
days and will wear a mask when within six feet of others.




      2  The category of felony defendants as identified in the Petition will
be addressed by a separate order.
                                      3
               e.    The inmate shall immediately report the
development of COVID-19 symptoms to the Department of Health
(“DOH”) and shall thereafter follow directives from the DOH.
               f.    Each pretrial detainee released under this
provision is ordered to appear at Honolulu District Court,
Kauikeaouli Hale, 1111 Alakea Street, Honolulu, Hawai‘i 96813, on
February 17, 2021, in Courtroom 7C at 8:30 a.m., unless
otherwise ordered.   Failure to comply with court orders or to
appear may result in further charges, including but not limited
to, criminal contempt.
               g.    DPS shall provide a list of all inmates
released under this provision 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 is held.
               h.    All inmates under this category who have
tested positive should be retested in accordance with guidance
of the Centers for Disease Control and Prevention and/or the
DOH.
               i.    All inmates released under this provision
shall maintain contact with their attorneys and appear at all
future court hearings.
               j.    Any no-contact order shall remain in force.
               k.    All inmates released under this provision
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.

                                 4
               l.   All inmates released under this order shall
further comply with all specific directives provided to them by
DOH.
          2.   With regard to individuals incarcerated solely
due to petty misdemeanor or misdemeanor convictions, the
respective court orders for incarcerating or imprisoning the
individual are temporarily suspended and the provisions provided
under Paragraph 1 above shall also apply except for 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.
          3.   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.
          4.    This court reserves its authority to order other
measures based on changed circumstances.
               DATED: Honolulu, Hawai‘i, August 16, 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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