We are in the middle of the greatest public health crisis of our lifetime. The coronavirus is spreading at an unprecedented rate on Oahu and has breached the walls of the Oahu Community Correctional Center (OCCC) to infect over 242 men and women in custody and 43 correctional officers and staff. While the virus also has begun to appear in other correctional facilities, OCCC has become a “hotspot” that threatens the entire island.
The Hawaii Supreme Court — recognizing that our grossly overcrowded jails are a petri dish for COVID-19 — has wisely ordered the rapid release of select groups of people who are charged with low-level, nonviolent offenses and do not pose a danger to the community. I say “wisely” because reducing the jail population is the only way to protect those in custody from serious harm or death, and prevent the OCCC outbreak from endangering the broader community.
The effort to reduce the OCCC population will never be successful, however, unless we address the front end of the problem, and that involves the Honolulu Police Department. Since the beginning of the pandemic, police officers have been arresting people for minor offenses, such as sitting and lying on sidewalks, remaining in parks after closing time, failing to appear in court, and even littering. They are driving up the jail population, and that jeopardizes the welfare of staff and people incarcerated at OCCC and poses a danger to all of us.
To control the number of people coming into the jail, our police officers must use heightened discretion in deciding whether to issue a citation or make an arrest. Accordingly, the Office of the Public Defender reached out to Chief Susan Ballard and asked her to use the broad discretion vested in the police to hold off on arresting people who do not pose a threat to public safety. Police, after all, use their discretion every day when deciding whether to talk to a person, give them a warning, issue a citation or actually make an arrest.
Unfortunately, the chief’s response to the Office of the Public Defender was “business as usual” at a time when we need all sectors of the community, and particularly leaders in the criminal justice system, to work together to “flatten the curve” and bring the coronavirus under control.
Using heightened discretion in deciding whether to talk, educate, warn, cite or arrest is not a radical idea: It is what law enforcement agencies around the country have been doing since the beginning of the pandemic. For example, the San Francisco Police Department has taken an “education over enforcement” approach, preferring to warn people rather than to arrest them. In Chicago, the police department directed officers that certain low-level and nonviolent crimes can be handled via citation and misdemeanor summons as opposed to physical arrest.
The job of the police department is to promote public safety and that applies to the men and women in OCCC as well as the broader community. Overreliance on punitive enforcement — particularly for low-level offenses during a pandemic — is bad public policy.
Police officers have wide discretion to make choices other than arrest, and they should be encouraged to use that discretion. By pursuing a business-as-usual approach to law enforcement instead of employing safer, smarter and more effective responses to low-level offenses, Chief Ballard has become part of the problem, rather than the solution.
Jacquie Esser is an attorney in the Office of the Public Defender; this was written in her personal capacity.
