A federal judge on Tuesday ordered Hawaii’s Department of Public Safety to adhere to its plan for protecting inmates from COVID-19, stressing the severity of the health threat in Hawaii’s jails and prisons where about half of the inmate population has now been infected by the virus since the start of the pandemic, as well as 273 staff. But U.S. District Judge Jill Otake stopped short of appointing a special master to take over COVID safety protocols in the correctional system, as attorneys for inmates had requested.

Otake, in her 69-page order issued Tuesday, said that she found accounts from correctional staff and inmates detailing major deficiencies in safety protocols to be credible.

“If the conditions described in the declarations submitted by plaintiffs continue, the risk of harm to all inmates is undeniable,” wrote Otake.

Top state officials, including wardens, sought to assure the court that they had adopted policies consistent with Centers for Disease Control and Prevention guidelines and that robust policies were in place for screening and quarantining inmates, sanitizing facilities, issuing personal protective equipment and testing and vaccinating inmates.

But Otake wrote that the “mere existence of policies is of little value if implementation and compliance are lacking.”

Otake’s order was in response to a lawsuit brought on behalf of inmates. The case was argued by Gina Szeto-Wong of the Law Office of Eric Seitz. As part of the court proceedings, inmates, as well as staff willing to assist the plaintiffs, submitted written declarations detailing harrowing conditions within the state’s facilities, particularly at the Hawaii Community Correctional Center in Hilo where a major COVID outbreak spread rapidly through the jail last month, infecting more than 230 inmates and about two dozen staff.

The jail was designed to hold just 206 inmates, but last month held 344.

Staff and inmates said 40 to 60 pre-trial inmates were routinely housed in a room called the Fishbowl that’s about 30-feet by 30-feet, while as many as seven detainees have been kept in chain-linked “dog cages” in the intake area.

There is no bathroom or running water in the Fishbowl, so inmates have had to use a nearby bathroom with a single urinal, a sink and a toilet that’s constantly overflowing, contributing to the stench of human waste that permeates the air around the room, according to declarations from staff and inmates. Guards often deny requests from inmates to use the bathroom, forcing them to urinate on themselves, on walls and in cups, according to the lawsuit.

Otake wrote that the conditions described by staff and inmates “are alarming, with or without COVID-19,” and notes that while the Constitution doesn’t mandate comfortable correctional facilities, it doesn’t allow inhumane ones either.

In late May, after two inmates in the Fishbowl tested positive for the virus, staff say all, or nearly all, detainees in the room also tested positive.

Five correctional staff provided declarations saying that COVID safety protocols were often nonexistent. They described an environment where inmates weren’t being screened for COVID upon entrance, social distancing was impossible, vulnerable inmates with health conditions weren’t being identified and sanitation and personal protective equipment were sorely lacking.

“The evidence before the Court demonstrates that Defendant has not taken reasonable available measures to abate the risks caused by the foregoing conditions, knowing full well — based on multiple prior outbreaks — that serious consequences and harm would result to the inmates,” wrote Otake. “And Plaintiffs have suffered injuries as a result.”

Otake left open the possibility of appointing a special master in the future. She also ruled that the case can move forward as a class-action lawsuit.

Order on Motion by Honolulu Star-Advertiser on Scribd