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A special master appointed to oversee statewide jail population reduction during the COVID-19 pandemic is recommending against blanket release of Hawaii inmates, calling instead for reviews by judges.

“The judge is the gatekeeper,” Dan Foley, the special master, said during a Hawaii Senate committee meeting Thursday. “Nobody leaves without that judge saying OK.”

Foley noted in a , also released Thursday, that the state’s jail population has decreased by more than 500 in the past month through other efforts. In addition, the Federal Detention Center has agreed to take in 100 state inmates to alleviate some of the overcrowding.

But he also said efforts must continue to reduce the population below limits set long ago that did not envision a global pandemic.

The special master emphasized that public defenders and prosecutors must collaborate, which has been an issue in Honolulu. He also said the department should share more information about how it intends to implement its pandemic response plan.

The Supreme Court appointed Foley last week as part of a statewide group tasked with reducing jail population. The action was prompted by two petitions filed by the state Office of the Public Defender seeking a court order to release low-level offenders and pretrial detainees from prisons and jails to avoid contagion in the COVID-19 pandemic.

Hawaii Public Defender James Tabe called for an immediate release of inmates, saying puts inmates and staff at increased risk. His office initially submitted a list of more than 400 inmates who met the court’s previous criteria for consideration of release.

Three of the four county prosecutors opposed the public defender’s request, with Kauai’s Justin Kollar the exception.

The group of public defenders, deputy attorneys general, prosecutors and others disagreed over who would be released and under what conditions. Some prosecutors wanted more assurances that the released inmates would have someplace to go, a concern that police departments and public officials have also raised.

Foley told senators Thursday that officials on neighbor islands were more open to compromise.

“It’s more contentious in Honolulu,” Foley said. At the same time, Honolulu is dealing with a much larger population and different demographics, he added.

Public defender Tabe agreed that there hasn’t been much collaboration in Honolulu. The Honolulu Prosecuting Attorney’s Office objected to 123 of the 136 inmates the public defender’s office recommended for release. Even when the two sides could agree, they disputed the conditions of release.

In a letter Wednesday, acting Honolulu Prosecutor Dwight Nadamoto said the public defender’s office had proposed releasing pretrial detainees charged with “horrible crimes,” including rape and murder.

Among them was Wayman Kaua, charged with attempted murder of a police officer after a in Pearl City. Nadamoto said such cases demonstrate the need for case-by-case reviews.

“The possible risk of COVID-19 in prison should be mitigated to protect inmates, corrections workers and their families, but that mitigation cannot come at the expense of public safety,” he wrote.

But none of the people Nadamoto cited were included on the public defender’s list of more than 400 inmates submitted to the Supreme Court, Tabe said. “Prosecutors are portraying that we’re trying to release serious, violent offenders and we’re not,” the public defender added.

Tabe said he had hoped the special master’s appointment would speed up the process. However, Foley’s recommendation to involve judges slows things down, requiring individual motions for release, he said.

“This process is going to be time-consuming,” he said. “The report does not reflect the urgency to reduce the inmate population at OCCC.”

Population Declining

Recent public safety data shows a decline in prison and jail populations in Hawaii, which the report says is the result of work by prosecutors, public defenders, judges and others. Since March 2, there has been a reduction of 548 inmates, Nolan Espinda, public safety director, said during the Senate hearing.

The public safety department’s end-of-month population count for March shows that the Oahu Community Correctional Center is now under the operational capacity of 954 beds — as of March 31, there were 953 inmates. The Hawaii Community Correctional Center in Hilo and the Maui jail are still operating over operational capacity, the data showed.

The public safety department should revise the definition of “operational capacity” for each facility, Foley recommended.

“With the threat of COVID-19 being introduced by incoming inmates or corrections staff that come in and out everyday, these operational capacities are no longer valid,” he wrote in the report. 

Capacities for each facility, set in 2001, did not take into account the possibility of a global pandemic, he said.

He also noted that even with the reduction in population, personal space was “downright impossible” in some modules. There were 160 people in 48 cells at the Maui jail, for instance, and 175 people in 54 cells at the Hawaii jail, according to the report.

In his presentation to the Senate committee, Foley also pointed to a from a psychiatrist working in the Oahu jail who said “present efforts to safeguard against a COVID-19 outbreak within DPS facilities are dangerously inadequate.”

The doctor wrote that the department has not distributed personal protective equipment, hand sanitizer or alcohol wipes, and that the cells are “dangerously filthy.” Proper hygiene protocols and social distancing are not being practiced, he added.

In response, Espinda told senators he was not aware of those reports. “We take everything as constructive criticism,” he said.

As for personal protective equipment, he said inmates are producing 700 to 1,200 face shields to be distributed to institutional workers and other state agencies in the coming weeks.

The public safety department said in a news release Thursday afternoon that it would comply with the special master’s recommendations, including posting of the population counts at its correctional facilities twice monthly instead of once, providing inmate information to the public defender’s office and prosecutors and sharing its pandemic response plan with the oversight commission.

As of Thursday afternoon, there are no COVID-19 cases in Hawaii’s jails and prisons, the department said.