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Hawaii County Prosecuting Attorney Kelden Waltjen is frustrated that judges on the Big Island are releasing people who were arrested for multiple felonies over the objections of his deputies. The judges cite poor conditions at the overcrowded Hilo jail as a reason for the releases.

“This is unacceptable,” Waltjen told the House Judiciary and Hawaiian Affairs Committee at a recent hearing. “Jeopardizing public safety concerns simply on account of overcrowding and correctional facility conditions is misplaced and misguided.”

Waltjen is calling for more state and federal support for construction of new jail facilities in Hilo and Kona, and also wants an expansion of social services that are now scarce on the island, including mental health, substance abuse, domestic violence, anger management and restorative justice programs.

Scathing reports by staff with the as well as a federal lawsuit in 2021 have triggered new scrutiny of the Hilo jail in recent months. The commission has also hosted state judges on tours that included the Hilo jail to ensure they are aware of conditions inside.

Third Circuit Chief Judge Robert Kim, who is the administrative judge for the Big Island, joined one tour of the Hawaii Community Correctional Center on Jan. 3. He said in an interview that “the conditions are atrocious.”

“I was not aware that I would find what I saw,” he said. “I was shocked at the conditions.”

Given that situation, Kim said that “I encourage all judges to be judicious in who we send to jail.”

In his own court, Kim said he uses “cashless bail as much as I can,” meaning that he does not always require prisoners to post cash bail in order to win release.

“I encourage other judges to do the same,” he said.

In the end, it is up to each judge to decide within the limits of the law who should be jailed and who should be released, Kim said, but “all the judges are mindful of the overcrowded situation that we have at HCCC — all of them.”

In fact, Waltjen said in an interview that Big Island judges have been making on-the-record comments about overcrowding and other problems at HCCC as justification for granting bail reductions or supervised release from the Hilo jail.

That now happens daily, and has been on the increase since the pandemic, he said. It raises concerns about public safety, because most people awaiting trial at the jail are charged with felonies or have already failed on supervised release and been accused of new crimes, Waltjen said.

The state Department of Public Safety has spent millions of dollars planning a new jail to replace the aging Oahu Community Correctional Center, but Waltjen said shows HCCC has consistently been the state’s most overcrowded facility for years.

Waltjen wants the state to prioritize the repair of the existing facility as well as construction of a new facility at a new site.

Construction is underway on a 48-bed expansion of the existing jail, but that is “not nearly enough,” he said.

Waltjen said he wants the state and federal government to step in “to make Hawaii island a safer place.”

When asked if conditions at the existing facility are so poor that they may violate prisoners’ constitutional rights, Waltjen said he does not know. But the judges seem concerned that conditions inside may be so bad they may amount to unconstitutionally cruel treatment of the inmates, he said.

For his part, Kim recalled seeing about 30 inmates housed in a “dry room” with no toilets or running water. Inmates have to knock on the doors to ask guards to take them to the bathroom. “That’s not acceptable,” he said.

That “dry room” is the now-infamous “Fishbowl,” an open room that was originally designed as a recreation or program area for inmates to use in the daytime. As overcrowding at the jail grew worse, the Fishbowl was converted into living space with mattresses dropped on the floor for the inmates.

The substandard conditions in that particular area of HCCC were noted in a federal court ruling in 2021 over the spread of Covid-19 within state jails. U.S. District Court Judge Jill Otake cited the practice of packing inmates into the Fishbowl during the pandemic as evidence of “objective deliberate indifference” to their safety.

Otake said in her decision that 40 to 60 pretrial inmates at times have been crowded into the 30-by-35-foot Fishbowl, and lack of a toilet there caused inmates to urinate and sometimes defecate in the room.

Kim also recalled a “dental office” at the jail during his tour that he described as “the size of a closet.”

“When we walked past, there was an inmate who was having a tooth extraction, and half of his body was sticking out into the hallway. So, there’s no chance of sterile hygiene,” Kim said.

“They’re trying their best with what they have, but what they have isn’t sufficient,” Kim said.

He said he is concerned for both inmates and the corrections officers who have to work in those conditions. “It’s dangerous for them, too,” he said.

Christin Johnson, coordinator for the correctional oversight commission, said there were still 15 prisoners in the Fishbowl when she toured HCCC on Wednesday. She said it is now used as a temporary holding area — possibly for less than a week — instead of as long-term housing, “but it’s still unacceptable.”

In her to the commission dated March 16, Johnson said the three secured areas of the jail in Hilo were holding 245 prisoners but had an operational capacity of only 126. That meant the jail was at 194% occupancy.

That population count does not include the dormitories at a separate facility known as Hale Nani, which is outside of Hilo in Panaewa.

Johnson also said that three female inmates were housed Wednesday in an area of the jail apart from the Fishbowl that also has no toilets or running water.

Her most recent report also said the jail was issuing adult diapers to menstruating women “due to a lack of underwear and lack of menstrual pads to attach to said underwear.” That issue was corrected after Johnson discussed it with the warden.

She has also raised concern about the lack of an adequate area in the jail for suicide watch. Inmates in crisis are now held in a “dayroom space” outside four cell doors, but that area has no water or toilets, and cannot be properly monitored by staff.

Johnson said the facility has made some progress since January when Kim visited. Inmates are now allowed outside for outdoor recreation, and the minimum amount of clothing is being issued for men and women as required by department policy.

The primary remaining problem is overcrowding “and the Department of Public Safety struggles because they can’t say ‘No thank you, we’re full.’ They just can’t. They have to take whoever is sent to them,” Johnson said.

“That’s one of the reasons we’re trying to do more tours with judges,” she said. “We wanted to get the judges in these facilities to see … if you’re sending somebody in here who is more of a nuisance than really a risk to public safety, these are the conditions that we are all collectively creating.”

Johnson was pleased to hear that judges are diverting people away from the Hilo jail.

“I’m glad they’re citing conditions at HCCC, because it’s unacceptable, and it’s unacceptable to continue to think that that jail is a great way to warehouse people who don’t need to be there,” she said.

Kim said there is a “severe need” for a new jail in West Hawaii county to take some of the population pressure off of HCCC, and to reduce the travel time required to shuttle prisoners from the Hilo jail to court in Kona and back.

Public Safety officials are seeking $5 million to begin planning that facility, and it is still unclear if lawmakers will provide that funding.

“For God’s sake, I would say that’s at least 10 years overdue. We need the help,” Kim said.

Apart from a new jail, Kim points out that something must be done with mentally ill people and homeless people with drug problems “who are coming into the facility time and time again.” He said mental health services on the Big Island are also inadequate.

Kim said he also hopes leading lawmakers will tour the facility for a first-hand look.

“I think it would increase the sense of urgency that is required to solve this serious problem,” he said. “It’s one thing to read about it, but seeing is believing, that’s all I can say.”