Some Hawaii prosecutors are shifting the way they charge defendants to control the crowding of jails, especially at risk to the COVID-19 pandemic because of population density.

Social distancing is not possible where hundreds or even thousands of inmates are locked in together in close quarters, two or even three to a cell, said Wanda Bertram, a spokeswoman for Prison Policy Initiative, a nonprofit research organization.

“The simple fact is that you’re going to have inevitable devastation unless you lower density,” she said.

Crowding is an ongoing problem in Hawaii’s correctional facilities. More than 5,000 people are incarcerated across the islands and in Arizona, with many jails, including the Oahu Community Correctional Center, suffering from severe overcrowding.

One Hawaii prosecutor — Justin Kollar of Kauai — has signed on to a national initiative of more than 30 prosecutors to enact charging policies to lower jail populations, including releasing low-level offenders.

“We haven’t seen a situation like this before so we’re looking for best practices,” he said. “Basically we all got together and said ‘What can we do during this time of pandemic?’”

His office has reviewed the jail roster and determined who can be released into the community with little risk.

Courtesy: Kauai Prosecutor

It has filed nine motions for supervised release as of Friday afternoon, he said. Those on supervised release would still have to report to probation officers.

While he hasn’t signed on to any initiatives, Acting Honolulu Prosecuting Attorney Dwight Nadamoto also said his office would not charge some non-violent offenders immediately. “But rest assured my office continues to build cases against the entire spectrum of offenders,” he stated in a news release.

Big Island Prosecutor Mitch Roth said his office is reviewing jail rosters to see what steps it can take. No decisions have been made, however. “We want to make sure that we have our most serious offenders kept in,” he said.

Maui Prosecutor Don Guzman did not return calls for comment.

A joint statement from the Fair and Just Prosecution initiative, joined by Kauai prosecutor Kollar, says that “an outbreak of the coronavirus in these custodial facilities would not only move fast, it would potentially be catastrophic.” Jails and prisons “cycle large numbers of people in and out of close, unsanitary quarters on a daily basis,” it states.

On Wednesday, the New York City Department of Corrections announced that a Rikers Island inmate tested positive for the coronavirus. By Sunday, that had turned into an outbreak of 38 cases in the complex and nearby facilities. There have been numerous reports across the country of correctional workers contracting the virus.

District attorneys and law enforcement across the nation — and not just ones considered progressive — are taking action because they realize without it, slowing down the pandemic will be impossible, Bertram of Prison Policy Initiative said.

In Los Angeles County, the Sheriff’s Department released more than 600 people from jails.

Prosecutors have immense power in controlling who goes to jail, said Monica Espitia, director of Smart Justice Campaign for the American Civil Liberties Union of Hawaii.

“There’s a lot they can do in terms of charging,” she said, such as consenting to release or not requesting bail.

There are unanswered questions about what’s being done inside the jails and prisons in response to the pandemic, Espitia said.

The ACLU of Hawaii issued a letter to the Department of Public Safety demanding to see its COVID-19 response plan.

Among the questions are where inmates would be isolated should they contract the disease, if hygienic products, including soap, are being distributed for free, staffing plans and more.

Cory Lum/Civil Beat

Espitia is not the only one with questions. Hawaii Correctional Systems Oversight Commission Chair Mark Patterson said his commission is gathering questions from the community to forward to the DPS.

“Most of the departments are probably not that well-prepared,” Patterson said. “Everybody’s moving and learning as we go.”

DPS suspended personal visitation a week ago, though visits from lawyers are still allowed. The department announced Friday it will enhance screening at entry points. People who have been outside Hawaii in the last 14 days are warned not to enter.

“We are implementing some extra measures to accommodate inmates during this temporary situation,” Director Nolan Espinda said in a news release. Those include longer phone calls, recreation time and access to store orders.

Public safety says it is working with the health department. A department spokeswoman did not return calls from Civil Beat.

Patterson is also the administrator of the Hawaii Youth Correctional Facility, under the Department of Human Services and not DPS. He said his facility is closely following health department protocols.

All hygienic products, such as soap, are being provided for free, as well as phone calls and video-conferencing, he said. Temperatures are taken when young people leave for outside activities and again when they return.

“We want to maintain the morale of the children,” he said.

If any of the 26 youths at the facility come down with the virus they will be isolated in a separate unit and monitored closely.

Kollar, the Kauai prosecutor, said recent storms have further complicated the situation. The Kauai jail is in a flood zone and the inmates are unable to go outside and distance themselves from one another.

“I’m scared of what’s going to happen when it hits that population because it is going to hit that population,” he said.