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With release of some inmates likely, Maui prosecutors weigh in

High court issues interim orders in wake of COVID-19

WAILUKU — Maui County Prosecuting Attorney Don Guzman said deputy prosecutors will seek conditions covering housing, testing and monitoring of inmates if they are released temporarily from the Wailuku jail, in the wake of a state Supreme Court interim order Friday that could lead to the release of certain inmates statewide because of the COVID-19 global pandemic.

“We understand the medical urgency to decrease the inmate population, but also in the forefront is our responsibility to make sure that our community is safe,” Guzman said Monday. “I am concerned with protecting our community and do not want to release any inmate that would pose a threat or risk.”

That includes inmates who have committed violent crimes or who have a history of habitually committing crimes, Guzman said.

The Supreme Court order required the Office of the Public Defender to provide a list by Monday afternoon of inmates in three categories:

• Those who are on probation and serving jail sentences of up to 18 months as a condition of probation, except for those incarcerated for convictions including assault, kidnapping, terroristic threatening, sexual assault, burglary, robbery and first- and second-degree unauthorized entry into a dwelling.

• Inmates serving sentences for misdemeanor or petty misdemeanor convictions, except for abuse, violation of a temporary restraining order, violation of an order for protection or violation of a restraining order or injunction.

• Inmates in custody awaiting trial, except for defendants charged with abuse, violation of a temporary restraining order, violation of an order for protection or violation of a restraining order or injunction.

The Supreme Court issued the order the day after a petition was filed Thursday by the state Office of the Public Defender calling for some inmates to be released to significantly reduce the population of jails and prisons “to prevent the massive loss of life and harm that the spread of COVID-19 would cause in such facilities.”

The petition says “correctional facilities are at particularly high risk for the spread of COVID-19” and cited overcrowding at facilities, including the Maui Community Correctional Center. The petition referred to an August 2015 news report that inmates were housed four to a cell, with two sleeping on the floor, in 92-square-foot rooms at MCCC.

While the Supreme Court interim order didn’t fully resolve the public defender’s petition, the high court indicated further orders would follow. It’s anticipated that the Supreme Court will use the three categories to determine which inmates are eligible for temporary release and adopt a temporary release process, Guzman said.

Before the order was handed down, Guzman said the prosecutor’s office had been working with the Maui Office of the Public Defender, private attorneys, police and the jail to implement measures that reduced the inmate population by 18 percent.

In addition to considering, on a case-by-case basis, temporary release of pretrial arrestees and temporary suspension of sentences, the prosecutor’s office asked police to issue citations instead of making arrests for misdemeanor and petty misdemeanor crimes and violations.

Police continue to make arrests for serious offenses, including murder, attempted murder, violent felony crimes, domestic violence crimes and DUI.

As of Thursday, MCCC housed 376 inmates, compared with 459 inmates at the end of February, according to the prosecutor’s office. The jail was designed to hold 209 inmates, according to the state Department of Public Safety.

A week ago, anticipating action by the Supreme Court, the prosecutor’s office already had obtained from the Department of Public Safety a list of 88 inmates covered by the first two categories in the Supreme Court order, Guzman said. The list includes 18 inmates serving jail terms for misdemeanor or petty misdemeanor convictions and 70 inmates serving jail terms as a condition of felony probation.

As of last week, the prosecutor’s office had agreed to modify or suspend sentences for six of the 88 inmates and were reviewing eight other cases, the office reported in a court filing opposing the public defender’s petition.

“Everything was working well on Maui,” said First Deputy Prosecuting Attorney Robert Rivera. “Maui’s unique in that we do work together, and it’s not completely adversarial.

“Our main concern was the safety of the public because some of the inmates presented a risk of safety to the community.”

After the Supreme Court order, Guzman said deputy prosecutors worked over the weekend to analyze each of the 88 cases to determine whether releasing the inmates would cause a threat or risk of harm to the community. Based on the review, the prosecutor’s office wouldn’t be objecting to the temporary release of 16 inmates, Guzman said.

He said the prosecutor’s office would seek conditions for any inmate to be released, including screening for symptoms of COVID-19 before release. Any inmate testing positive or showing symptoms of infection would be immediately isolated and quarantined.

Other conditions would include proof of housing after release, a 14-day strict home quarantine upon release, a curfew and electronic monitoring by ankle bracelet.

Guzman said the housing condition would prevent released inmates from becoming homeless or nomadic and moving from house to house and possibly spreading COVID-19.

The state Department of Public Safety said Friday that no inmate has met criteria to be investigated for the coronavirus.

“The purpose of the ankle bracelet is to know they’re where they’re supposed to be,” Rivera said. “Some of them could be in quarantine. It also alerts us to if they’re where they’re not supposed to be.”

Mayor Michael Victorino has authorized emergency funding to pay for ankle monitors for those who are released, with the cost estimated to be a couple thousand dollars for a month, Guzman said.

Over the weekend, he contacted Dr. Lorrin Pang, state Maui District health officer, who agreed to have his team do screening tests of those released, Guzman said.

Other conditions could be sought, Guzman said.

“Going forward, we would like to assure the public that we will continue to fight for the safety of our community and for the victims of criminal activity,” he said.

Guzman said he would be meeting with others, including other prosecuting attorneys, Office of the Attorney General, public defender’s office, Public Safety officials and 2nd Circuit Chief Judge Richard Bissen for more discussion.

“No one’s going to be released today,” Guzman said. “We need to still work on the procedure.”

Ultimately, a judge would make the decision on whether to release an inmate.

Rivera noted that those who are released would have their jail terms suspended but not canceled, so a date would be set for them to return to jail to serve the remainder of the time.

He noted that only inmates who are awaiting trial or who have been sentenced to probation would be considered for release.

“None of them are paroled and none of them have been sentenced to indeterminate prison terms. So they are not those criminals,” Rivera said. “You have to be on probation in order to qualify.”

Guzman discounted public speculation that the Judiciary or prosecutor’s office would terminate inmate prison sentences early, saying, “this is definitively not the case.”

“However, we believe there is a distinct possibility that the Hawaii Supreme Court will order a temporary suspension of prison sentences for certain nonviolent offenders with no significant risk to the community or crime victims, with inmates required to return to prison and complete their sentences once the pandemic ends,” he said.

* Lila Fujimoto can be reached at leeimada@mauinews.com.

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