State officials got grilled during an appearance before the Hawaii Supreme Court for what was viewed as a lack of preparation for the COVID-19 outbreak that exploded this week at the Oahu Community Correctional Center.

As of Friday afternoon, the Department of Public Safety had confirmed 124 OCCC inmates testing positive for the coronavirus, an increase of 38 from Thursday night. There are currently 968 inmates at the Kalihi jail, so 12.8% of the total population has now tested positive, while the inmates in more than 16 of the 19 living areas have yet to be tested.

“We expect a significant number more as we mass-test the remainder of the 17 living units at OCCC,” Public Safety Director Nolan Espinda told justices at a hearing Friday.

The DPS also has reported that 23 staffers had tested positive.

The court was hearing arguments on a petition filed by the Office of the Public Defender pressing the court to allow as many inmates at OCCC and the state’s seven other correctional facilities to be released as quickly as possible to prevent further infection among the incarcerated and the facility’s employees.

During the hearing, Attorney General Clare Connors said the current outbreak across Oahu was unexpected. “Right now, our entire community in the City and County of Honolulu is (seeing) a surge, an unexpected surge,” Connors said.

But Justice Michael Wilson cut Connors off midsentence.

“This was not unexpected,” Wilson said, noting that Lt. Gov. Josh Green, who is a physician, and other experts had predicted there would be an outbreak similar to what has been seen in jails and prisons on the U.S. mainland.

“To say this was something that was unpredictable is false,” Wilson said.

Connors and Espinda said actions have been taken to abide by Centers for Disease Control guidelines, and that additional capacity is being planned if more bed space is needed due to a wider outbreak. Those plans include using the state’s three other correctional facilities on the island, setting up tents temporarily, and using grant money for a dozen isolation cells that are expected to be delivered in October, Espinda said.

Following a nearly two-hour-long discussion, Chief Justice Mark Recktenwald said the court would take the arguments under advisement. While he gave no indication of when any action would be taken, he said, “given the urgency of the issues, the court will be conferring shortly to determine the best path forward.”

Friday evening, a four-member majority of the court commanded Public Safety to provide by noon Monday the names of inmates who were not convicted of certain violent crimes and are: serving sentences of less than 18 months in conjunction with a felony deferral or probation; serving for misdemeanors and petty misdemeanors; pre-trial detainees charged with felonies, misdemeanors or petty misdemeanors. The court also wants a list of those inmates who have been tested, and those who have tested positive.

The petition seeks an immediate and mass release of inmates that fall into several categories: nonviolent pre-trial detainees who are being held simply because they can’t afford to pay bail, those who are in jail as part of a probationary sentence, and those who are already scheduled to be released within the next six months.

DPS officials themselves have acknowledged that overcrowding is an issue, and that social distancing and other types of recommended safeguards against COVID-19 cannot be and are not followed.

“We think that Public Safety should be tasked with identifying the individuals who come under the various categories, and then a single judge — that the Circuit, Family and District courts designated — to meet with us and the prosecutors and the AGs if necessary to run down the list,” said Deputy Public Defender Susan Arnett.

Connors and Acting Honolulu Prosecuting Attorney Dwight Nadamoto oppose a mass release and instead want requests for inmate releases to be considered on a case-by-case basis by lower court judges. They also want the state Health Department to review each inmate’s medical situation prior to release.

Arnett said that method would not address the urgency of the situation, which is growing worse by the day. “We don’t think there is time for individual motions, there certainly is not time for the individualized (medical) assessments” sought by prosecutors, she said.

“Those who are over 65, who are pregnant, who have pre-existing medical conditions which make COVID-19 more dangerous should be at the head of the list for release,” Arnett said.

Connors and Nadamoto said their first priority is the health and safety of the general public. Not only should a determination if an inmate is released be made on a case-by-case basis, they said, there need to be safeguards imposed for each inmate who is released.

“Anybody who tests positive should not be released, anybody who is pending the results of their tests should not be released,” Nadamoto said. “Those who have tested negative, we would ask that they be done on case-by-case basis no matter what the charge is. We think the full criminal history must be vetted so that we can ensure we are not releasing somebody dangerous into the community”

Those slated to be released should be required to have a verified residence and there be a preset return date for court proceedings, Nadamoto said. “It is for the public’s safety that we are asking these questions,” he said.

The public defender’s office petitioned for emergency action for a blanket release of inmates in certain categories to alleviate overcrowded conditions as the pandemic was beginning to wreak havoc on the state, and the court appointed a special master to work with the parties on a plan for a release based on individual motions.

That move reduced the population in most facilities, although they did not reach design capacity, which the justices said was to be the goal of corrections officials, Arnett said.

While the Hawaii Correctional Systems Oversight Commission and the other stakeholders were expected to continue working toward design capacity, that has not happened, she said.

Instead, inmate populations have increased.

A number of those released were subsequently rearrested, Nadamoto said.

But Arnett said the percentage of those arrested was smaller than during nonpandemic times.

Espinda said the 19 units at OCCC house 24 to 150 inmates.

Of the 968 inmates at the facility Thursday, 623 were housed in 288 cells, the rest in a dormitory setting, Espinda said.

Those who have tested positive are being housed together either in one dormitory or in shared cells, he said. “Under ideal conditions, every individual positive finding would be assigned to an individual cell. It is a physical impossibility at this time.” Given that, he acknowledged, social distancing cannot be maintained.

DPS spokeswoman Toni Schwartz said of 110 inmates in Annex 1 who were tested, 70 had positive results.

Schwartz said testing is to continue through the weekend.

081320 Pub Defender Filing by Honolulu Star-Advertiser on Scribd

081420 Nadamoto Response by Honolulu Star-Advertiser on Scribd

081420 Espinda Response by Honolulu Star-Advertiser on Scribd