                                                     Electronically Filed
                                                     Supreme Court
                                                     SCPW-XX-XXXXXXX
                                                     05-JUN-2020
                                                     12:23 PM




               SCPW-XX-XXXXXXX and SCPW-XX-XXXXXXX

          IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
________________________________________________________________

                         SCPW-XX-XXXXXXX

           OFFICE OF THE PUBLIC DEFENDER, Petitioner,

                               vs.

   CLARE E. CONNORS, Attorney General of the State of Hawai‘i;
     DONALD S. GUZMAN, Prosecuting Attorney, County of Maui;
    MITCHELL D. ROTH, Prosecuting Attorney, County of Hawai‘i;
    JUSTIN F. KOLLAR, Prosecuting Attorney, County of Kaua‘i;
         DWIGHT K. NADAMOTO, Acting Prosecuting Attorney,
             City and County of Honolulu, Respondents.

----------------------------------------------------------------

                         SCPW-XX-XXXXXXX

   STATE OF HAWAI‘I OFFICE OF THE PUBLIC DEFENDER, Petitioner,

                               vs.

   DAVID Y. IGE, Governor, State of Hawai‘i; NOLAN P. ESPINDA,
     Director, State of Hawai‘i Department of Public Safety;
EDMUND (FRED) K.B. HYUN, Chairperson, Hawai‘i Paroling Authority;
                           Respondents.
________________________________________________________________

                       ORIGINAL PROCEEDING
                  DISSENT RE: ORDER CONCLUDING MATTERS
                     IN THIS CONSOLIDATED PROCEEDING
                             (By: Wilson, J.)

I.    Introduction

            The Novel coronavirus (“COVID-19” or “the virus”) is

spreading around the world at an alarming rate.                On March 11,

2020, the World Health Organization declared a global COVID-19

pandemic and called for countries to take “urgent and aggressive

action.”1    As of March 27, 2020, the date of our initial order in

this case,2 the United States surpassed China in its number of

reported COVID-19 cases, with 93,568 reported cases and over

1,400 deaths.3      The number of reported cases in the United States

has since grown at a staggering rate.             As of June 5, 2020, the

Center for Disease Control reported 1,842,101 total cases in the

United States—14,676 cases more than the day before.4                 The virus



1
      WHO Director-General’s Opening Remarks, WORLD HEALTH ORGANIZATION (Mar.
11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-
opening-remarks-at-the-world-health-assembly (last visited June 5, 2020).
2
      Interim Order filed Mar 27, 2020.
3
       Coronavirus Map: Tracking the Global Outbreak, N.Y. Times (updated Mar.
27, 2020), https://www.nytimes.com/interactive/2020/world/coronavirus-
maps.html?action=click&pgtype=Article&state=default&module=styln-
coronavirus&variant=show&region=TOP_BANNER&context=storyline_menu?action=clic
k&pgtype=Article&state=default&module=styln-
coronavirus&variant=show&region=TOP_BANNER&context=storyline_menu; Donald G.
McNeil Jr., The U.S. Now Leads the World in Confirmed Coronavirus Cases, THE
NEW YORK TIMES (Mar. 26, 2020), https://www.nytimes.com/2020/03/26/health/usa-
coronavirus-cases.html.
4
      Cases in the U.S., CTRS. FOR DISEASE CONTROL & PREVENTION (June 5, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.




                                         2
has killed at least 103,700 people in the United States.5

Science and statistics constitute unequivocal evidence that

COVID-19 is a growing lethal threat to citizens in the United

States.6

            As a result of the grave nature of this public health

threat, Hawai‘i is now in an officially declared state of

emergency.     To protect Hawai ‘i’s citizens from the present threat

to human life, Hawai‘i Governor David Ige, and all four county

mayors in Hawai‘i, imposed a state of emergency and issued rules

and orders restricting daily activities of residents and

businesses.7


5
      COVID-19 has killed more than twice the number of Americans killed in
the Vietnam War. David Welna, Coronavirus Has Now Killed More Americans Than
Vietnam War, NATIONAL PUBLIC RADIO (Apr. 28, 2020),
https://www.npr.org/sections/coronavirus-live-
updates/2020/04/28/846701304/pandemic-death-toll-in-u-s-now-exceeds-vietnam-
wars-u-s-fatalities.
6
      Approximately twenty percent of people infected experience life-
threatening complications requiring hospitalization, and according to World
Health Organization director Tedros Adhanom Ghebreyesus, the death rate for
those infected is 3.4%. Brian Resnick and Christina Animashaun, Why COVID-19
Is Worse Than The Flu, IN ONE CHART, VOX (Mar. 18, 2020),
https://www.vox.com/science-andhealth/2020/3/18/21184992/coronavirus-covid-
19-flu-comparison-chart.
7
      COVID-19 Emergency Proclamation, OFFICE OF THE GOVERNOR, STATE OF HAW. (Mar.
4, 2020), https://governor.hawaii.gov/wp-content/uploads/2020/03/2003020-GOV-
Emergency-Proclamation_COVID-19.pdf (last visited June 5, 2020);
Supplementary Proclamation, OFFICE OF THE GOVERNOR, STATE OF HAW. (Mar. 16, 2020),
https://governor.hawaii.gov/wp-content/uploads/2020/03/2003109-ATG_COVID-19-
Supplementary-Proclamation-signed.pdf (last visited June 5, 2020); Second
Supplementary Proclamation, OFFICE OF THE GOVERNOR, STATE OF HAW. (Mar. 21, 2020),
https://governor.hawaii.gov/wp-content/uploads/2020/03/2003152-ATG_Second-
Supplementary-Proclamation-for-COVID-19-signed.pdf (last visited June 5,
2020); Third Supplementary Proclamation, OFFICE OF THE GOVERNOR, STATE OF HAW. (Mar.
23, 2020),


                                                                 (. . . continued)


                                         3
            On March 23, 2020, following the guidance of the

Hawai‘i Department of Health, Governor Ige issued an emergency

proclamation “Stay-at-Home Order” (“Order”) that provided

mandatory guidance to individuals, businesses, and operations

within the State of Hawai‘i.         The Order carries “the force and

effect of law” pursuant to HRS § 127A-25, mandating that the

people of Hawai‘i follow strict social distancing guidelines in

order to prevent the spread of COVID-19.8

            In Governor Ige’s Third Supplementary Proclamation,

issued March 23, 2020, he warns of “unmanageable strains on our

healthcare system and other catastrophic impacts to the State”

posed by “the dangers of COVID-19.”           Third Supplementary

Proclamation at 1.       The Governor ordered the State “to mandate

and effectuate social distancing measurers throughout the State

in order to reduce the spread of COVID-19.”             Id.    “All persons

(continued. . . )

https://governor.hawaii.gov/wp-content/uploads/2020/03/2003162-ATG_Third-
Supplementary-Proclamation-for-COVID-19-signed.pdf (last visited June 5,
2020) [hereinafter Third Supplementary Proclamation]; Public Health
Emergency Rules, Amended March 22, 2020, OFFICE OF THE MAYOR, CTY. OF MAUI (Mar.
22, 2020),
https://www.mauicounty.gov/DocumentCenter/View/121462/Amended-2020-3-22-
Mayors-Public-Health-Emergency-Rules (last visited June 5, 2020); Mayor’s
Emergency Rule #5, OFFICE OF THE MAYOR, CTY. OF KAUA‘I (Mar. 24, 2020),
http://www.kauai.gov/Portals/0/Civil_Defense/Emergency%20Proclamations/Mayor%
27s%20Emergency%20Rule%20%235_20200324.pdf; Mayors COVID-19 Second
Supplementary Emergency Proclamation, OFFICE OF THE MAYOR, CTY. OF HAW. (Mar. 24,
2020),
http://records.hawaiicounty.gov/WebLink/PDF/pfhqbtbqdexu2nzhtx1gt2nn/77/Mayor
s%20COVID-19%20Second%20Supplementary%20Emergency%20Proclamation.pdf.
8
      Third Supplementary Proclamation, supra note 7.




                                        4
shall maintain a minimum of six-feet of physical separation from

all other persons to the fullest extent possible.”                       Id. at 7.

Likewise, the Order requires that “businesses and operations

shall make hand sanitizer and sanitizing products readily

available for employees and customers.”                   Id.

                In the week preceding the March 4, 2020 emergency

declaration by Governor Ige, a total of 106 cases were

confirmed.         Since March 2, 2020, the number of cases has grown

to 652 statewide and seventeen people have died.9                      The Department

of Health for the State of Hawai‘i warned Hawai‘i’s residents on

its website on June 1, 2020 that “Covid-19 is spreading

globally, nationally, and now locally.”10                   To contend with the

emergency and prevent further spread of the virus among the

community, tourism has essentially been halted by the

requirement of a fourteen day quarantine for those who visit

Hawai‘i, restaurants are closed to all but take-out service, and

people are requested to stay at home whenever possible.11


9
          Latest Cases in Hawai‘i, DISEASE OUTBREAK CONTROL DIV., STATE OF HAW. – DEP’T OF
HEALTH,    https://health.hawaii.gov/coronavirusdisease2019/(last visited June 5,
2020).
10
       Current Situation in Hawaii, DISEASE OUTBREAK CONTROL DIV., STATE OF HAW. –
DEP’T OF HEALTH, https://health.hawaii.gov/coronavirusdisease2019/what-you-
should-know/current-situation-in-hawaii/ (last visited June 5, 2020).
11
      The dire nature of the measures taken to protect Hawai‘i’s people from
the COVID-19 emergency has caused unprecedented unemployment, with March 2020
unemployment claims increasing by 3,766.4% from the same month in 2019.


                                                                        (. . . continued)


                                              5
             Preeminent among the protections identified as

emergency measures by the Governor to prevent the hyper-

contagious virus from rampantly spreading from person-to-person

is social distancing.       All persons are directed to stay at a

distance of six feet from one another whenever practicable.12

Our community has rallied behind this common-sense method of

preventing infection, practiced by all branches of the Hawai‘i

State Government.      To protect Hawai‘i’s elected leaders and the

members of the public from in-person contact at the Hawai‘i State

Capitol, the Hawai‘i State legislature suspended its current

session.13    The Hawai‘i State Judiciary has also instituted

practices of social distancing to protect judiciary employees

and the public from the spread of the COVID-19 infection.14


(continued. . . )

Olivia Peterkin, Hawaii unemployment reaches historic highs, PACIFIC BUSINESS
NEWS (Apr. 3, 2020). https://www.bizjournals.com/pacific/news/2020/04/03/
hawaii-unemployment-reaches-historic-highs.html.
12
      Third Supplementary Proclamation, supra note 7.
13
      After state Senator Clarence Nishihara tested positive for COVID-19,
the Hawai‘i legislature immediately closed and suspended the legislative
session. Senate President Ron Kouchi stated that “In an abundance of
caution, we just thought it would be better to send everybody home and then
let the Department of Health start its process[.]” State Capitol building
closes after senator tests positive for coronavirus, HAW. NEWS NOW (Mar. 19,
2020), https://www.hawaiinewsnow.com/2020/03/19/state-senator-tests-positive-
coronavirus-first-known-case-linked-state-capitol-building/.
14
      On March 16, 2020, Chief Justice Mark Recktenwald issued an Order
limiting in-person court proceedings and directing “[e]ach judicial circuit
[to] issue orders and adjust court operations as warranted to address the
urgent and rapidly evolving public health conditions[.]” In the Matter of
the Judiciary’s Response to the COVID-19 Outbreak, SCMF-XX-XXXXXXX, at 2.




                                       6
Nevertheless, the Majority order assumes that the emergency

conditions that caused this court to appoint a special master to

act proactively to avoid the spread of COVID-19 in Hawaii's

incarcerated community have passed.15         Majority Order at 3.

            The incarcerated citizens of Hawai‘i are powerless to

comply with the Governor’s social-distancing directive.             In

particular, the women and men held in custody within the O‘ahu

Community Correctional Center (“OCCC”) face a potential COVID-19

catastrophe due to overcrowding that prevents social

distancing.16    Three incarcerated people are often crowded into




15
      The Majority reaches the conclusion that, “the rate of new infections
in Hawai‘i remains at very low levels”, presumably to make the point that an
emergency no longer exists. As noted, our state is in the grip of a
collapsing economy and state-wide social distancing that directly contradicts
the underlying assumption of the Majority’s order. The June 1, 2020
Department of Health warning that “Covid-19 is spreading globally,
nationally, and now locally,” recognizes that Covid-19 continues to spread as
the state awaits the eventual return of tourists from a world community in
the throes of the COVID-19 pandemic. The majority ignores the projections of
a second wave of COVID-19 infections emerging as communities begin to relax
the precautions taken in response to the first wave of COVID-19 infection.

      Chelsea Davis, The struggle between reopening and preventing a second
wave of COVID-19 cases, Hawaii News Now (May 22, 2020),
https://www.hawaiinewsnow.com/2020/05/23/struggle-between-reopening-
preventing-second-wave-covid-cases/.

      Len Strazewski, Harvard epidemiologist: Beware COVID-19's second wave
this fall, American Medical Association (May 8, 2020), https://www.ama-
assn.org/delivering-care/public-health/harvard-epidemiologist-beware-covid-
19-s-second-wave-fall.
16
      Although this dissent focuses only on OCCC, the issue of achieving
social distancing applies to all correctional facilities in each of Hawai‘i’s
counties.




                                      7
cells designed for two.17      The crowding is so extreme that one

prisoner must often sleep on the floor with his head next to the

toilet.18

            According to the 2018 Final Report of the House

Concurrent Resolution Task Force on Prison Reform to the Hawai‘i

Legislature:

                  Hawai‘i’s prisons are old, dilapidated, and severely
            overcrowded. Hawai‘i Community Correctional Center is
            currently operating at 185% of capacity, Maui Community
            Correctional Center is operating at 151% of capacity, Kaua‘i
            Community Correctional Center is operating at 196% of
            capacity, and OCCC is operating at 127% of capacity. At
            OCCC, three prisoners are crowded into cells designed for
            two. As a result, one of the prisoners must sleep on the
            floor with his head next to the toilet. Faced with the
            lack of available cells, OCCC has so many prisoners crowded
            into one module that it is known as “Thunderdome.”
            Conditions are so bad throughout the State that most
            facilities probably do not meet minimum constitutional
            standards.19

            OCCC now contains approximately 823 incarcerated

citizens in a building designed to accommodate 628 incarcerated

people who are not facing the threat of the coronavirus.20             The

conditions posed by the level of crowding within the inmate

population are described by a doctor working within its


17
      Final Report of the House Concurrent Resolution Task Force on Prison
Reform to the Hawaii Legislature (2019 Regular Session) 5-6, available at
https://www.courts.state.hi.us/wp-content/uploads/2018/12/HCR-
85_task_force_final_report.pdf (last visited Mar. 30, 2020).
18
     Id.
19
     Id.
20
     Id.




                                      8
confines.    Doctor Pablo Stewart describes two or three inmates

in a cell:

            I have observed that the vast majority of people
            detained in OCCC are still triple-or at least double-
            bunked in each cell, which remain dangerously filthy.
            Making matters worse, correctional staff themselves
            do not practice social distancing or adhere to proper
            hygiene protocols.21

            In his capacity as a doctor providing care in OCCC

since July 2019, Dr. Stewart visits OCCC four times a week. He

has become “intimately familiar” with OCCC and the response of

the Department of Public Safety to the virus.           It is his

conclusion that, notwithstanding reports of a decrease in prison

population, “people are still crammed two or three to a cell,

and hygiene conditions remain abysmal.”22


21
      Declaration of Pablo Stewart, M.D., filed April 13, 2020 in
SCPW-20-213 at 5.
22
     The Declaration of Pablo Stewart states in relevant part:

            I am intimately familiar with DPS correctional
            facilities. Since July 2019, I have been working as
            the attending psychiatrist supervising psychiatric
            residents from the John A. Burns School of Medicine
            Department of Psychiatry, where we provide
            psychiatric care to people detained at [OCCC]. Also,
            since the middle of March 2020, I have been visiting
            and providing care at OCCC at least four times per
            week. I thus have become familiar with the jail’s
            conditions and DPS’s response to the novel
            coronavirus.

            . . . .

            It is from this unique vantage point-as someone who
            has over three decades of correctional health care
            experience, who serves as a court-appointed monitor
            in a prison conditions lawsuit, and who has been
            inside OCCC as recently as this morning—that I share


                                                             (. . . continued)


                                      9
              As an experienced court-appointed monitor of prison

conditions, Dr. Stewart states that the inmates are not able to

practice social distancing.          The incarcerated population of OCCC

at the time of his April 13, 2020 observations was approximately
                             23
the same as it is now.             As a consequence of the failure to

achieve a population reduction sufficient to permit social

distancing, Dr. Stewart warns “the present efforts to safeguard

against a COVID-19 outbreak within DPS facilities are

dangerously inadequate.”          Thus, he specifically rejects the

conclusion of the Majority that the emergency threat of

coronavirus within OCCC has ended:



(continued. . . )

              my observations about DPS’s efforts to address COVID-
              19 within its correctional facilities.

              . . . .

              [W]hile I have heard of DPS reports stating that the
              OCCC population is smaller than it was a month ago,
              one would not know that from visiting the facility.
              As a clinician who moves throughout the facility
              almost daily, I have not observed any appreciable
              reduction in the jail population. The end result is
              that detainees are no more able to maintain social
              distance and proper hygiene today than they were one
              month ago.

Id. at 3-6.
23
      The April 8, 2020 Population Report stated that OCCC housed 942
inmates. Initial Summary Report of the Special Master at 27 (Apr 9, 2020).
By contrast, the May 28 Fifth Summary Report and Recommendation of the
Special Master stated that the population at OCCC was 823, a population of
195 above the design capacity. Fifth Summary Report and Recommendations of
the Special Master at 4 (May 28, 2020). [hereinafter Fifth Summary Report].




                                       10
         DPS’s April 9, 2020 advisory notes that OCCC saw a
         295-person reduction in its jail population between
         March 2, 2020 and April 9, 2020 (i.e., from 1201 to
         906). See https://twitter.com/HawaiiPSD/status/
         1248441500901335041. But, based on my OCCC visit
         this morning—i.e., on April 13, 2020—this reduction
         comes nowhere near to allowing for adequate COVID-19
         protocols to be implemented. People are still
         crammed two or three to a cell, and hygiene
         conditions remain abysmal.

         . . . .
         In short, the present efforts to safeguard against a
         COVID-19 outbreak within DPS facilities are
         dangerously inadequate. I urge the Court not only to
         take action to reduce the jail and prison
         populations, but to do so immediately.

Id. at 8. (emphasis in original).

         To protect the inmate population from “the likelihood

of a devastating outbreak” and achieve social distancing Dr.

Stewart concluded that a population reduction to design capacity

is necessary:

         It is clear to me that a much more significant
         population reduction must be achieved within DPS
         facilities. I spent time over the past week
         reviewing the relevant data on DPS jails and prisons.
         Based on that review, and my thirty-plus years of
         expertise in correctional health care oversight, it
         is my opinion that the first step that the Court
         should take is to impose on all stakeholders the
         mandatory goal of reaching 100% of design bed
         capacity.

Id. (emphasis in original).

         Consistent with the recommendation of Dr. Stewart,

reduction of the incarcerated population at OCCC to design

capacity of 628 has been endorsed by this court.         To achieve

social distancing, this court appointed a special master on

April 2, 2020; his scope of work was to “include setting forth



                                  11
guidelines to ensure that the State’s correctional centers and

facilities are in compliance with social distancing mandates.”24

Consistent with the purpose of achieving social distancing

within the inmate population, on April 15, 2020 this court

ordered that “[e]fforts shall be undertaken to reduce the inmate

population of correctional centers and facilities to design

capacity.”   Second Interim Order filed April 15, 2020.         Nine days

later, we again ordered that “efforts shall continue to be

undertaken to reduce the inmate population of correctional centers

and facilities to design capacity.”       Third Interim Order filed

April 24, 2020.

             Meaningful progress toward achieving the design capacity

of 628 inmates at OCCC did not occur by April 24, 2020.25          To date,

the inmate population remains over the design capacity.          As

24
      Order of Consolidation and for Appointment of Special Master (By:
Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson JJ.) April 2,
2020.
25
      “There has not been a meaningful decrease in the number of inmates held
at the Oahu Community Correctional Center since the initial report of the
special master was filed on April 9, 2020. On April 13, 2020, the head count
was 909 and the assigned count was 993. One week later, on April 20, 2020,
the population had increased to a head count of 916 and an assigned count of
1018.” Department of Public Safety weekly population report April 13, 2020
and April 20, 2020. A chart in the April 23, 2020 report of the special
master lists the inmate population on April 23, 2020 as 838 at OCCC—a number
that is not identified as either a head count or an assigned count.

      This court has ordered: “Efforts shall continue to be undertaken to
reduce the inmate population of correctional centers and facilities to design
capacity.” The design capacity of OCCC is 628 inmates. Id. As noted, on April
13, 2020, the head count for OCCC was 909 and, utilizing the chart in the
most recent special master’s report, the population has decreased no more
than seventy-one incarcerated citizens since April 13, 2020.” Concurrence
Re: Interim Order (By: Wilson J.), April 24, 2020.




                                     12
described by Dr. Stewart’s declaration, the population at OCCC

remains dangerously overcrowded.       In the 21 days, from May 8 to May

29, 2020, the population increased by 58 inmates for a total of 823

incarcerated women and men.      Crowding of cells with up to three

inmates has continued.     On May 13, 2020, with a population of less

than the present population of 823, the Department of Public Safety

acknowledged conditions “with up to 3 inmates per cell depending on

the daily population.”26

            In the most recent May 28, 2020 Fifth Report of the

Special Master, the special master acknowledged that “this process

as mandated by the court has been difficult for all involved”.            The

special master noted that communications between the parties had

broken down and achievement of design capacity at OCCC to

accomplish social distancing among inmates would not be

successfully resolved through mediation.27        The Hawai‘i State Public

Defender and the Oversight Commission28 consider attainment of

design capacity to be essential, while the Attorney General and



26
      The incarcerated population on May 13, 2020 was 758. Exhibit 1 Fourth
Summary Report and Recommendations of the Special Master, letter of Public
Safety Director Nolan Espinda to Special Master (May 15, 2020).
27
      “As of this date, the parties’ attempts to resolve this matter through
mediation have not been successful”. Fifth Summary Report, supra 23 at 3.
28
      Hawai‘i Correctional Systems Oversight Commission, which was established
by the Hawai‘i State Legislature pursuant to Act 179, Session Laws Hawai‘i
2019, to, among other things, establish the capacities for all Hawai‘i
correctional facilities and policies and procedures to prevent the inmate
population from exceeding the capacity of each correctional facility.




                                      13
county prosecutors from O‘ahu, Maui and Hawai‘i oppose any further

reduction in population through further release.

             Notably, the special master describes a process that,

through the innovative collaboration between parties, has already

achieved a reduction of the inmate population with an unusual and

promising level of protection to public safety:

           The criticism of the recidivism rate on early
           releases has not taken into consideration what the
           recidivism rate was prior to the COVID-19 early
           releases. According to a report of the State of
           Hawai‘i Interagency Council on Intermediate Sanctions
           (July 2018), the average recidivism rate for those
           released on probation, parole and upon the completion
           of their sentences is around 50%. Whereas it is too
           soon to judge the recidivism rate of COVID-19 early
           releases, about 650 inmates were released and,
           according to some news outlets, 50 to date have been
           returned with new charges. That is about an 8%
           recidivism rate to date, assuming all new charges
           result in convictions.

Fifth Summary Report at 7.

           The special master describes the successful attainment

of an eight percent recidivism rate for the over 650 inmates

released from incarceration state-wide.          The result of the

process of release ordered by this court,29 as calculated by the

special master, is a dramatic reduction from the normal

recidivism rate of fifty percent to an eight percent recidivism

rate–a change that represents far greater protection of the

public from repeat criminal activity by the 650 released


29
      Every release occurred only after judicial review of the circumstances
and facts pertaining to each case—with every adjudication being made only
after input from defense counsel and the prosecutor.




                                     14
citizens as compared to the normal reoffending rate for the

population of released inmates.         The reason for this unusually

low recidivism rate is eluded to by the special master as being

a result of constructive collaboration:

                   The parties and stakeholders have acted
             admirably under difficult circumstances in carrying
             out this Court’s orders. Differences among them have
             been great at times, but all have done their best to
             work in a collaborative fashion as encouraged by this
             Court, despite their differences.

Id. at 12.

             The thorough, informed process of review that preceded

the successful release of 650 inmates state-wide is a

demonstrated means by which the population of OCCC can be

further reduced—safely-- to design capacity.

II. The Special Master Must Be Permitted to Make Recommendations
In Accordance with the Order of this Court that Are Not
Conditioned on the Agreement of the Parties.

             It is apparent from the special master’s observations

and accomplishments in reducing the inmate population thus far,

that achieving the original intent of this court’s order is

attainable.     The special master recommends “the parties to

continue to work in a collaborative manner to reduce and

maintain inmate population levels set by this Court, or by the

Oversight Commission should this Court defer to the Commission

on this matter”.      Id. at 12.     However, the special master notes

that an impasse to achieving inmate population levels has arisen

and he is prevented from recommending necessary solutions by his


                                      15
perception that his recommendations can only be based on

consensus.    As a consequence, he has thus far declined to

provide recommendations to this court with which the parties do

not agree:

           Because the Special Master has been mandated to work
           in a collaborative manner with the parties and
           stakeholders, and conduct mediation among the parties
           when appropriate, the Special Master cannot pick a
           side in these proceedings when the parties differ,
           while continuing to work collaboratively with the
           parties consistent with the orders of this Court. The
           Special Master has endeavored to work with the
           parties in an evenhanded manner while carrying out
           the orders of this Court.

Fifth Summary Report at 12.

           Thus, the special master is not aware that he does in

fact have the authority and duty to provide this court with his

independent recommendations regardless of whether the parties

agree.   His appointment purpose as stated in this court’s

original order appointing the special master is to “effectuate

the goals of these consolidated proceedings, even without

agreement of all parties.”30       The special master has an important

responsibility to provide this court with independent

recommendations not conditioned on consensus.           Informed by his

two months of active service, the recommendations of the special

master could be of great benefit to the court and the community


30
      Order of Consolidation and for Appointment of Special Master (By:
Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson JJ.) (Apr. 2, 2020)
at 7.




                                     16
to counter the threat of COVID-19 posed by (1) present

conditions of incarceration and (2) an increased likelihood of

infection among incarcerated citizens from the return of

visitors from the United States and abroad.

           The special master’s constructive communication with

problem solving community groups and vigilant concerned

community leaders31 uniquely positions him to provide innovative

candid recommendations—recommendations that could prove critical

to resolving the COVID-19 emergency in our correctional

institutions.    The special master’s commitment to overcome the

present impasse and achieve conditions of incarceration

permitting social distancing is reflected in his recommendation

that he submit a further report on June 11, 2020.            It is evident

that to forego the special master’s report and his independent

recommendations that will be forthcoming in only seven days

would be a rush to judgment at great sacrifice to achieving

constitutionally safe conditions for incarcerated citizens.




31
      The Fifth Master’s report recounts active input and communication with
the State House Committee on Public Safety, Veterans & Military Affairs, the
Attorney General, prosecutors from Honolulu, Maui, and Hawaiʻi, the Hawaiʻi
State Public Defender, the Hawaiʻi Correctional System Oversight Commission,
and the Emergency Reentry Project.




                                     17
III. Reduction of the Population of Incarcerated Citizens at
OCCC is Necessary to Prevent the Spread of the COVID-19, Remedy
Constitutional Violations, and Protect the Community.

          Incarcerated citizens have a constitutional right to

be free from cruel and unusual punishment.     U.S. Const. amend.

VIII; Haw. Const. art. I, § 8 (incorporating the same).      To

establish a violation of the Eighth Amendment, an inmate must

show that prison officials are “knowingly and unreasonably

disregarding an objectively intolerable risk of harm, and that

they will continue to do so . . . into the future.”     Farmer v.

Brennan, 511 U.S. 825, 846 (1994).

          The “deliberate indifference” needed to establish an

Eighth Amendment violation must be examined “in light of the

prison authorities' current attitudes and conduct,”     Helling v.

McKinney, 509 U.S. 25, 36 (1993), which means “their attitudes

and conduct at the time suit is brought and persisting

thereafter[.]”   Farmer, 511 U.S. at 845.    The U.S. Supreme Court

has held that overcrowding in a prison that deprives “prisoners

of basic sustenance, including adequate medical care[,]”

violates a prisoner’s right to be free from cruel and unusual

punishment under the Eighth Amendment.      Brown v. Plata, 563 U.S.

493, 511 (2011) (“Just as a prisoner may starve if not fed, he

or she may suffer or die if not provided adequate medical

care”).   Courts have a responsibility to remedy Eighth Amendment

violations when jails are overcrowded and inmates are not


                                18
receiving adequate medical care.         Id.     (“If government fails to

fulfill this obligation, the courts have a responsibility to

remedy the resulting Eighth Amendment violation”).            Although

courts must consider public safety in ordering inmate releases,

“[c]ourts may not allow constitutional violations to continue

simply because a remedy would involve intrusion into the realm

of prison administration.”     Id. at 511.         Additionally, courts

and state officials “must bear in mind the need for a timely and

efficacious remedy for the ongoing violation of prisoners’

constitutional rights.”     Id. at 543.

         In Plata, the Court concluded that the overcrowding of

inmates bred unconstitutional conditions within the prison:

inadequate medical care that resulted in death, the increased

incidence of infectious disease, and needless pain and

suffering.    563 U.S. at 519-20.    Thus, the Court held that

remedial measures to cure the cruel and unusual conditions in

the California prisons were warranted.            Id.   To remedy the

violation of the incarcerated populations’ right to be free from

cruel and unusual punishment, the United States Supreme Court

upheld the lower court’s order placing a cap on the prison’s

population.   Id. at 545.    The Supreme Court concluded that

courts may enter an order placing limits on prison populations

when medical care cannot adequately meet the demands of an

overcrowded inmate population.      Id.        The Court capped the prison


                                    19
population to cure and prevent Eighth Amendment violations, and

thus had the “effect of reducing or limiting the prison

population” by up to “46,000 persons.”          Id. at 510-11.

            The threat to the incarcerated citizens of OCCC is

more dire than the threat to California’s incarcerated citizens

in Plata.    As in Plata where the correctional facilities in

California were operating in excess of their design capacity and

therefore exposing inmates to overcrowding that caused death and

harm, 563 U.S. at 502, OCCC is also operating significantly in

excess of its capacity, thus creating similar unconstitutional

conditions; inmates are crowded two to three in a cell and

unable to social distance.       However, in this case, the current

COVID-19 pandemic is a more lethal threat—an officially declared

state and national emergency—that eclipses the cruel and unusual

conditions of overcrowding and inadequate medical care at issue

in Plata.    The conditions in Plata did not include the

potentially lethal threat of Covid-19.

            Incarcerated citizens are exposed to the threat of

contracting COVID-19 at a rate significantly higher than someone

in the general community.32       The speed with which the virus moves

through prisons and jails is rapid, with many infected people

32
      See, e.g., COVID-19 infection rate on Rikers Island is 7 times higher
than citywide according to the Legal Aid Society, CBS N.Y. (Mar. 20, 2020)
https://newyork.cbslocal.com/2020/03/26/coronavirus-rikers-island/.




                                     20
spreading the virus before ever showing symptoms.             For example,

the virus spread through Rikers Island jail (“Rikers”) in New

York from one inmate to 167 in just ten days.33            In the same

period of time, the virus infected 137 Rikers staff members.34

Jails and prisons are “basically a system designed to spread

communicable disease,”35 unless corrective and preventative

action is taken.      Whether the state of Hawai‘i is acting with

deliberate indifference to the threat of COVID-19 is a threshold

issue dependent in part on the recommendations and observations

of the special master.

            Courts throughout the United States have acted

promptly in response to the threat the coronavirus poses to

incarcerated people.      Cuyahoga County, Ohio, dropped the county

jail population from nearly 1,900 to less than 1,300 “in a

matter of days”, with Cuyahoga County Presiding Judge Brendan J.

Sheehan noting that “[w]e really compacted the time frame.”36

Likewise, New Jersey released as many as 1,000 people from its

33
      Jennifer Gonnerman, How Prisons and Jails Can Respond to the
Coronavirus, NEW YORKER (Mar. 14, 2020), https://www.newyorker.com/news/q-and-
a/how-prisons-and-jails-can-respond-to-the-coronavirus.
34
      Id.
35
      Id.
36
      Kimberly Kindy, Disaster waiting to happen: Thousands of inmates
released as jails and prisons face coronavirus threat, WASH. POST (Mar. 25,
2020), https://www.washingtonpost.com/national/disaster-waiting-to-happen-
thousands-of-inmates-released-as-jails-face-coronavirus-
threat/2020/03/24/761c2d84-6b8c-11ea-b313-df458622c2cc_story.html.




                                      21
jails to address the risks of the highly contagious coronavirus

spreading among the incarcerated population.37          New Jersey’s

chief justice, Stuart Rabner, signed an order releasing inmates

jailed for probation violations as well as those convicted in

municipal courts or sentenced for low-level crimes in Superior

Court.38

IV.   Reduction of OCCC Population to Design Capacity.

            Releasing incarcerated nonviolent citizens to achieve

numbers sufficient to reduce the population of OCCC to its

design capacity of 628 is straightforward.          With a present

inmate population of 823 people, the release of approximately

194 women and men can be achieved with due consideration for

public safety by:     (1) releasing low-risk pretrial detainees and

placing them on court supervised release; (2) releasing low-risk

inmates who are close to finishing their sentences either by

modifying their sentence to end without further incarceration;

(3) modifying the remaining sentence of nonviolent offenders to

be served as a period of probation; or (4) transferring inmates

to other custodial settings.




37
      Tracey Tully, 1,000 Inmates Will Be Released From N.J. Jails to Curb
Coronavirus Risk, N.Y. TIMES (Mar. 23, 2020), https://www.nytimes.com/
2020/03/23/nyregion/coronavirus-nj-inmates-release.html?smid=em-share.
38
      Id.




                                     22
            The length of sentence for nearly every inmate in OCCC

is presently less than twelve months.         With rare exceptions, all

sentences being served are either as a result: (1) of a

conviction for a nonviolent Class C felony with no more than a

year remaining on a probationary sentence; (2) a misdemeanor

punishable for no more than a year in jail,39 or; (3) a petty

misdemeanor punishable by no more than thirty days in jail.40

Thus, each inmate currently serving a sentence at OCCC will have

finished their sentence within twelve months, even without an

early release in the face of the threat of COVID-19.

            Low-risk nonviolent offenders should be released

and/or be subject to an alternative probationary sentence.              To

subject citizens presently serving terms for petty misdemeanors,

misdemeanors, or non-violent class C felonies to the lethal

threat of COVID-19, notwithstanding the availability of an

alternative probationary sentence, is an unconstitutional

violation of their right to be free from cruel and unusual

punishment.

            Faced with the threat to their lives, and the

inability to engage in social distancing amidst the coronavirus


39
      See HRS § 701-107(3) (providing that misdemeanors are punishable by a
maximum imprisonment of one year).
40
      See HRS § 701-107(4) (providing that petty misdemeanors are punishable
by a maximum imprisonment of thirty days).




                                     23
pandemic, no benefit to the community is achieved from continued

incarceration of those serving time for a petty misdemeanor, a

misdemeanor, or a nonviolent class C felony.    Commission of a

petty misdemeanor, a misdemeanor, or a nonviolent class C felony

does not warrant as punishment the exposure to a virus that will

possibly kill the incarcerated citizen, and will likely require

expenditure of valuable life-saving medical resources.       Inmates

serving terms for petty misdemeanor, misdemeanors, or nonviolent

class C felonies can have their sentences modified to allow

completion of the remaining sentence on court supervised

probation, or to be released based on the time served on the

sentence.    Protection of the public is provided by adjudication

of every proposed release.

            The remaining incarcerated citizens at OCCC are

pretrial detainees who have not been convicted of a crime; they

are citizens presumed to be not guilty, who are awaiting trial

in jail because they could not afford to post bail.    To subject

citizens arrested for, but not convicted of, petty misdemeanors,

misdemeanors, or nonviolent class C felonies to the lethal

threat of COVID-19 because they are unable to post bail is an

unconstitutional violation of their right to be free from cruel

and unusual punishment.

            The jailing of (1) citizens awaiting trial for

nonviolent offenses and (2) nonviolent offenders with less than


                                 24
a year remaining on their sentences not only contributes to the

vast overcrowding in Hawai‘i correctional facilities and

increases the risk to inmates of contracting COVID-19, their

incarceration also threatens:   (1) the health and safety of

correctional workers and public defenders who share the company

of the incarcerated citizens; (2) the state’s limited medical

teams whom would have to respond to a coronavirus outbreak

emergency in the correctional facilities and hospitalize

inmates; and (3) the state’s limited medical supplies and

testing kits.

V.   CONCLUSION

           The special master recognizes the impasse to resolving

the coronavirus emergency at OCCC, and nonetheless recommends

that the parties continue to work to reduce and maintain

population levels set by this court.    In so doing he notes the

difficulty of resolving the COVID-19 threat if he is constrained

to offer only recommendations arrived at by consensus.

Fortunately, the special master was provided just the authority

he mistakenly laments that he is without—the authority to

“effectuate the goals of these consolidated proceedings, even

without agreement of all parties.”     So empowered, and with the

experience of two months of hard and productive work, he should

be permitted to submit his independent recommendations about how

to resolve the emergency faced by Hawai‘i’s incarcerated women


                                25
and men.   Perhaps the reaffirmation of the importance of

independent authority will be reason for a future special

master--faced with the present emergency and the increased risk

of infection from an imminent influx of tourists--to perform an

independent site visit of OCCC to see first-hand the crowding

and social distancing, if any, employed by inmates and

correctional workers.

           The alternative chosen by the Majority--to declare

success and claim contrary to the evidence and the Governor’s

emergency orders that the emergency is at an end--perpetuates

without justification the lethal risk of infection to those who

are held sometimes three to a cell during the coronavirus

pandemic emergency.     The emergency identified by the Governor

and specifically described within OCCC by Dr. Stewart requires

this court to maintain jurisdiction at least until the special

master is granted the opportunity to make independent

recommendations about how to reduce population levels

sufficiently to achieve social distancing.

           Dated: Honolulu, Hawai‘i, June 5, 2020.

                                /s/ Michael D. Wilson

                                Associate Justice




                                  26
