ACLU of Hawaii files brief to not terminate COVID mitigation in prisons

The American Civil Liberties Union of Hawai‘i (ACLU of Hawai‘i) filed an amicus brief on April 7, 2021, asking the Hawai‘i Supreme Court not to prematurely conclude its oversight of the State of Hawai‘i Department of Public Safety’s (“DPS”) response to COVID-19 within correctional facilities. The brief also specifically urged the Court not to terminate orders that have prohibited judges from imposing bail on defendants accused of certain low-level offenses during the pandemic.

The brief demonstrates that conditions within DPS facilities remain dangerously overcrowded and bleak—just as they were when the Court took action to mitigate the effects of the pandemic last year. Since then, DPS has failed to implement adequate COVID-19 safety procedures, and termination of the matter now would worsen the unconstitutional conditions suffered by people who are incarcerated. Critically, it would also increase the threat of future COVID-19 outbreaks—both inside DPS facilities and in the broader Hawai‘i community.

ACLU of Hawai‘i Legal Director Wookie Kim said: “For decades, we have been deeply concerned about Hawaii’s dangerously overcrowded jails and prisons. Even before the pandemic, people were incarcerated in horrific, unconstitutional conditions. These conditions have been made that much more dangerous during the pandemic. The Court was correct to implement emergency measures, but now is the wrong time to unwind them.”

The filing includes a sworn declaration from Dr. Pablo Stewart, prison medical expert and attending psychiatrist at the Oahu Community Correctional Center. He wrote that a decision by the Court to conclude the matter now would “almost certainly be a deadly error,” leading more people to “be exposed to, harmed, and potentially killed, by COVID-19.”

The filing also includes a review of numerous letters received by the ACLU of Hawai‘i from people incarcerated during the COVID-19 crisis in the past year. These include descriptions of “brutal” lockdowns lasting 12 to 14 days, with daily release for only a 5-minute shower; descriptions of cramped cells in which people are forced to sleep on the floor by the toilet; and increased violence as a result of the stress of lockdowns. Individuals also described how DPS staff have not adequately separated people who tested positive for COVID-19 from others, and have often failed to provide appropriate medical care.

Based on these facts, the ACLU of Hawai‘i brief makes four key arguments:

First, the COVID-19 emergency remains serious on a national, statewide, and facility level, despite the partial rollout of vaccines. The virus, especially one of its more contagious and deadly variants, can still easily travel through DPS jails and prisons—especially those facilities that see the constant circulation of people in and out of detention.

Second, the Court’s three suggested bases for terminating the matter are flawed: 1) The rate of positive cases in Hawaii’s correctional centers and facilities has not stabilized and is still at risk of a spike at any given moment; 2) adequate testing and other health and safety measures have not been successfully implemented within DPS facilities; and 3) while DPS has started a vaccination program for incarcerated persons, the threat posed by COVID-19 remains serious and lethal until far more people—both inside and outside DPS facilities—are vaccinated.

Third, terminating the matter would be contrary to the judgment and expertise of the Hawai‘i Correctional System Oversight Commission, which set infectious disease emergency capacity limits in response to the pandemic. DPS has yet to meet these requirements in any of its facilities.

Finally, the Supreme Court’s past orders leave the lower courts’ ability to protect public safety fully intact. Although judges are prohibited from setting bail in certain cases involving low-level offenses, they can still set conditions of release for these defendants.

ACLU of Hawai‘i Executive Director Joshua Wisch said: “Put simply, terminating COVID mitigation efforts now would endanger public safety, not protect it. Most of us—including people who are incarcerated—are not fully vaccinated yet. There’s a reason we’re all still wearing masks. When most of the state’s population is still being told to exercise caution, throwing caution to the wind in our jails and prisons is exactly the wrong thing to do, and it is dangerous. We urge the Court to continue its oversight.”