In re Individuals in Custody of State
| Decision Date | 18 February 2021 |
| Docket Number | SCPW-20-0000509 |
| Parties | IN THE MATTER OF INDIVIDUALS IN CUSTODY OF THE STATE OF HAWAI'I |
| Court | Hawaii Supreme Court |
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The rapid spread of COVID-19 has created an unprecedented public health emergency declared by Governor Igeover eleven months ago.2 The Centers for Disease Control and Prevention has acknowledged that inmates in correctional facilities are among those that face the highest risk for suffering the greatest harm from COVID-19.3 Inmates incarcerated in the State of Hawai'i (the "State") have become victims of that harm: the Department of Public Safety ("DPS") reports more than 1200 inmates have contracted COVID-19 while incarcerated.4 Eight inmates have died from COVID-19, with five inmates dying last month alone at Halawa Correctional Facility ("HCF").5 Little is known about these inmates or the circumstances of their deaths, although DPS is required to conduct a mortality review and submit a report to the legislature together with recommendedcorrectional action.6 What is known is that inmates in DPS facilities have reason to be in constant fear that they will contract a devastating, potentially lethal disease.7 This fear is not unfounded given the high rate of infection facilitated bythe extreme overcrowding among inmates.8 Clusters of COVID-19 continue to break out within DPS facilities.9 But inmates have not been prioritized for vaccination,10 and are not included in the State's daily case count.11 The recent deaths of the five HCF inmates should serve as a warning: inmates in DPSfacilities will continue to contract and die from COVID-19 while in the State's custody unless this court takes swift and decisive action.
The solution is straightforward and has been called for repeatedly: first, reduction of the inmate population in correctional facilities to design capacity so that social distancing can be properly implemented, and second, appointment of an independent expert who could monitor the conditions within correctional facilities to ensure that DPS is providing constitutionally humane conditions of confinement for inmates.
At the O'ahu Community Correctional Center ("OCCC"),12 the inmate population must be reduced to its design capacity of 628 inmates.13 Design capacity is one of the primary remedies sought by the Office of the Public Defender ("Public Defender") and the American Civil Liberties Union ("ACLU") and its expert, Dr. Pablo Stewart ("Dr. Stewart").14 This court, the specialmaster appointed by this court, the Hawai'i Correctional Systems Oversight Commission, the Kaua'i County Prosecutor, and various other public health officials and experts all support reducing the inmate population in the face of a deadly pandemic.15 With the prison population reduced to design capacity and sufficient space to implement social distancing, new inmates could be thoroughly quarantined to ensure they do not introduce COVID-19 into OCCC, and potentially infected inmates could be placed in proper medical isolation so that COVID-19 is not further spread within OCCC. Nonetheless, design capacity has never been achieved by DPS.16
Reducing the population with due regard for public safety does not require the release of "violent" inmates into the community. The majority of inmates at OCCC are accused of committing nonviolent offenses, and many have been judged to be nonviolent as a basis for receiving probationary sentences with a limited term of incarceration. Many inmates have a history of poverty or homelessness, or struggle with mental illness, but most have not been accused of violent offenses. Reducing the population at OCCC does not necessarily require the release of inmates from custody at all; transfer to an alternative facility for completion of the sentence is also an option.17
The aforementioned remedies are necessary to rectify the severe overcrowding within State correctional facilities that allows COVID-19 to thrive and amounts to unconstitutional cruel and unusual conditions of confinement. See U.S. Const., amends. VII, XIV; Haw. Const., art. I, §§ 5, 12. Acute exposure to COVID-19 is particularly troubling for pretrial detainees because they are owed greater due process protection under the Fourteenth Amendment from punishment than inmates who have been convicted. See Bell v. Wolfish, 441 U.S. 520, 535 (1979). ThePublic Defender has asked this court to intervene. And it is our duty to do so to defend the rights of Hawai'i's incarcerated people under the constitutions of the United States and the State of Hawai'i.
Approximately eleven months ago, on March 26, 2020, the Public Defender filed with this court its Petition for Writ of Mandamus to seek judicial relief from the failure of DPS to protect inmates from COVID-19. In April, before the first infected inmate was identified in State correctional facilities this court recognized the conditions of incarceration and overcrowding at OCCC necessitated court intervention to protect inmates from the threat of contracting COVID-19.18 Reduction of the population to OCCC's design capacity of 628 inmates and social distancing were identified as necessary steps to relieve the inmates from the threat posed by COVID-19.19 Dr. Stewart,who has experience monitoring and assessing the COVID-19 risk in prison facilities, attested that "to avoid a COVID-19 catastrophe within DPS facilities, any process must include the target of reaching, at minimum, design bed capacity in each facility." Apr. 13 Stewart Decl. at 4. While COVID-19 had not yet been identified within OCCC, Dr. Stewart described the conditions in OCCC as "dangerously inadequate" and "a COVID-19 ticking time bomb."20 Id. at 5. Faced with the COVID-19 threat, on April 2, 2020, this court appointed a special master to facilitate reduction of the inmate population by releasing inmates from correctional facilities.21
Approximately two months later, on June 5, 2020, the Majority concluded the proceeding and discharged the special master22 with the unfounded assumption that the emergencyconditions that caused this court to appoint the special master had passed.23
By August 13, 2020, COVID-19 was rampant in Hawai'i.24 COVID-19 erupted in OCCC; it quickly became one of the largest, most active clusters of COVID-19 infection in the State.25 On August 18, the Director of the Department of Health, Dr. Bruce Anderson, described OCCC as the "perfect environment for thetransmission of COVID" and the outbreak as "explosive."26 Since Dr. Anderson's statement, the population at OCCC has increased. The population of OCCC has now swelled to approximately 950 inmates--more than 300 inmates over design capacity.27 Over 500 people within OCCC have contracted COVID-19, including 450 inmates and 106 staff members.28
On August 12, 2020--six days before Dr. Anderson described the COVID-19 outbreak as "explosive"--the Public Defender initiated the present proceeding, again urgently seeking this court's intervention.29 Thus far, the Majority has declined to respond except to expand the category of inmates who are ineligible for expedited release: any inmate who was arrested for violating the Governor's emergency proclamations, or who is awaiting test results, showing symptoms, or has tested positive for COVID-19 is excluded from the early release process.30
Shortly after the Public Defender initiated the present proceeding, in a related case,31 the Majority again acknowledged the COVID-19 emergency at OCCC but paradoxically issued an order directly increasing the number of inmates held pretrial at OCCC. The Majority suspended the right to release under Rules 5 and 10 of the Hawai'i Rules of Penal Procedure ("HRPP") of all people in the First Circuit of O'ahu who chose to exercise their right to appear in person in court.32
The courts of the State of Hawai'i have a duty to protect inmates from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and article I, sections 5 and 12 of the Hawai'i Constitution. To prove conditions of confinement are cruel and unusual under the Eighth Amendment, a post-conviction inmatemust show that prison officials have acted with "deliberate indifference" as to the inhumane conditions. Farmer v. Brennan, 511 U.S. 825, 828 (1994). This court has yet to establish a standard by which to evaluate conditions of confinement claims brought by post-conviction inmates under article I, section 12 of the Hawai'i Constitution, but there is compelling reason to adopt a state standard ("objective reasonableness") that is more protective than the federal standard ("deliberate indifference").
The Eighth Amendment prohibition against cruel and unusual punishment arises from the basic concept of "the dignity of man." Gregg v. Georgia, 428 U.S. 153, 173 (1976) (internal citations omitted). An inquiry into the "excessiveness" of the punishment has two aspects: ...
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