A plan to ease overcrowding in Hawaii jails by releasing nonviolent accused or convicted petty criminals hasn’t gotten off the ground yet, and might not have much impact when it finally takes effect because too few inmates will qualify.

Gov. David Ige’s administration proposed a law last year to allow the prison system to release some inmates who were sentenced for minor crimes or were stuck in jail because they were unable to post bail for minor offenses, and lawmakers approved a modified version of the plan last spring.

Ige signed Act 217 into law July 6 to create the program, but Department of Public Safety Director Nolan Espinda said writing regulations for the law and getting the approval of the state Attorney General’s Office for those regulations have slowed the effort.

Espinda said he hopes to start releasing pretrial inmates under the new program next month but said it appears that fewer than 100 prisoners statewide will qualify. That is a small fraction of the 1,990 inmates Hawaii held in its four jails at the end of last year.

Relatively few inmates will be released, in part because lawmakers would not authorize the jails to free any prisoners under the program who were ever convicted of violent offenses or were ever arrested for abuse of a household or family member.

Lawmakers also excluded inmates who were on probation or parole for serious crimes, and prisoners who were denied bail or had bail set at more than $5,000.

Espinda said his department then further limited the scope of the program by deciding that “we’re not going to release anybody with mental health needs, we’re not going to release anybody who’s homeless.”

“That’s not in the statute, but for public safety we can’t do that,” Espinda said. “I can’t put somebody on the street who has no place to go. How can I expect that person to reasonably make their court appearance?”

As for people who are mentally ill, “for public safety purposes, we can’t put somebody on the street we know has a mental health condition and needs treatment,” Espinda said. “The law doesn’t say it but it is best practice.

“I don’t feel it’s right or that the taxpayers will expect us to release people who have nowhere to go or who are hearing voices in their head,” he said.

As for the delay in implementing the program, Espinda said that “getting anything done in six months in state government is exceptional work, if you ask me.”

Mateo Caballero, legal director of the ACLU of Hawaii, said the exclusion of the homeless and mentally ill from the early release program is “misguided, contrary to the early release statute, and unconstitutional.”

“It is misguided because prisons and jails should not be used as de facto housing for the homeless or mental hospitals for the mentally ill,” Caballero said in a written statement. “It is contrary to the statute because the statute contemplates a case-by-case determination based on ‘the circumstances and nature of the misdemeanant’s charge or offense,’ not on the wealth or mental capacity of the offender.

“Finally, it is unconstitutional because it arbitrarily excludes entire classes of otherwise eligible nonviolent offenders from the early release program without adequate due process of law,” Caballero said.

House Public Safety Committee Chairman Gregg Takayama said he was surprised by how long it has taken to implement the release program, especially considering that it was proposed by the administration.

As for the decision to exclude the homeless and mentally ill, Takayama said the original idea was to release people who were not considered a risk to public safety, and “to impose more conditions seems to defeat some of the intent of the bill.”

“It seems to me that as long as … they are not deemed a threat to public safety, they should be OK for release,” said Takayama (D, Pearl City-Waimalu- Pacific Palisades).

Overcrowding in state-run jails has been a chronic problem, and the ACLU of Hawaii Foundation has asked the U.S. Department of Justice to investigate Hawaii’s packed correctional facilities.

The ACLU filed its formal complaint after a yearlong investigation of prison and jail conditions that concluded conditions were so bad that they amounted to unconstitutional cruel and unusual punishment for the inmates.