SCPW-20-0000509

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

IN THE MATTER OF INDIVIDUALS IN CUSTODY

OF THE STATE OF HAWAIʻI

ORIGINAL PROCEEDING

INTERIM ORDER

(By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ.,

and Chief Judge Ginoza, assigned by reason of vacancy)

On August 12, 2020, the Office of the Public Defender 

(“OPD”) filed a petition for extraordinary writ pursuant to HRS 

§§ 602-4, 602-5(5), and 602-5(6) and/or a writ of mandamus 

(“Petition”). The Petition seeks, among other things, a 

reduction of the inmate populations at the State’s correctional 

centers and facilities in an effort to mitigate the harm that 

the COVID-19 pandemic may inflict upon the inmates, the

correctional staff, and the people of Hawai‘i. In this regard,

the Petition seeks the expedited release of certain categories 

of inmates from the State’s correctional centers and facilities, 

without filing and hearing of individualized motions for 

release. 

In response to the petition, answers were filed by: 

(1) Nolan P. Espinda, Director of the Department of Public 

Safety, State of Hawai‘i (“DPS”) and Edmund (Fred) K.B. Hyun, 

Electronically Filed

Supreme Court

SCPW-20-0000509

19-AUG-2020

06:04 PM
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chairperson of the Hawaiʻi Paroling Authority; (2) Mitchell D. 

Roth, Prosecuting Attorney for the County of Hawaiʻi; (3) Donald 

S. Guzman, Prosecuting Attorney for the County of Maui; 

(4) Dwight D. Nadamoto, Prosecuting Attorney for the City and 

County of Honolulu; and (5) Justin F. Kollar, Prosecuting 

Attorney for the County of Kauaʻi. The answers addressed the 

OPD’s requested relief, stated objections and concerns, and 

provided alternative considerations. 

The COVID-19 pandemic has caused a public health 

emergency. Since July 2020, Hawai‘i has seen a surge in COVID-19 

cases, with record numbers of positive cases and increased 

hospitalizations being reported daily. While the majority of 

the cases are on O‘ahu, the neighbor island numbers have 

increased in recent days. In addition, since the Petition was 

filed, it has been reported that more than two hundred inmates 

and over forty staff members have tested positive for COVID-19. 

While the majority of cases are related to the O‘ahu Community 

Correctional Center (“OCCC”), there have been positive COVID-19 

test results in some of the other State correctional centers and 

facilities. 

This court recognizes the impact of COVID-19 on 

Hawaiʻi’s community correctional centers and facilities. This 

court also recognizes, however, the significant public safety 

concerns regarding the release of inmates into the community.

While there is an urgent and immediate concern to respond to the 

impact of this crisis in our community correctional centers and 

facilities, such response requires a careful consideration of 

interests, both for public health and public safety. 

At this time, additional information is necessary to 

assist the court and the parties in addressing the public health 

and safety concerns raised by the surge of COVID-19 cases in the 
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State, including at the correctional centers and facilities, and 

the Petition’s request for relief.

Accordingly, upon consideration of the submissions and 

record in SCPW-20-0000509, and the current state of COVID-19 

positive test results in our community and the State’s 

correctional centers and facilities, and pursuant to this 

court’s authority under Hawai‘i Revised Statutes (“HRS”) §§ 602-

5(3) & (6) and 706-625, Governor David Y. Ige’s Emergency 

Proclamations, and HRS § 601-1.5, 

IT IS HEREBY ORDERED that:

1. No later than 12:00 p.m. on Saturday, August 22, 

2020, DPS shall provide to the OPD, the county prosecutors, and 

the Administrative Director of the Courts a list of all inmates 

at its correctional centers and facilities (excluding OCCC) who 

meet the following criteria, as applicable:

a. Inmates serving a sentence (not to exceed 18 

months) as a condition of felony deferral or 

probation except for (i) inmates serving a 

term of imprisonment for a sexual assault 

conviction or an attempted sexual assault 

conviction; or (ii) inmates serving a term 

of imprisonment for any felony offense 

contained in HRS chapter 707, burglary in 

the first or second degree (HRS §§ 708-810, 

708-811), robbery in the first or second 

degree (HRS §§ 708-840, 708-841), abuse of 

family or household members (HRS § 709-

906(7)&(8)), or unauthorized entry in a 

dwelling in the first degree or in the 

second degree as a class C felony (HRS §§ 

708-812.55, 708-812.6(1) & (2)), including 
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attempt to commit these specific offenses 

(HRS §§ 705-500, 705-501). 

b. Inmates serving sentences solely for 

misdemeanor or petty misdemeanor convictions 

except those convicted of abuse of family or 

household members (HRS § 709-906), violation 

of a temporary restraining order (HRS § 586-

4), violation of an order for protection 

(HRS § 586-11), violation of a restraining 

order or injunction (HRS § 604-10.5), or any 

other crime in family court;

c. All pretrial detainees charged with a petty

misdemeanor or a misdemeanor offense, except 

those charged with abuse of family or 

household members (HRS § 709-906), violation 

of a temporary restraining order (HRS § 586-

4), violation of an order for protection 

(HRS § 586-11), or violation of a 

restraining order or injunction (HRS § 604-

10.5); and

d. All pretrial detainees charged with a 

felony, and those inmates who have pled 

guilty or no-contest and are awaiting 

sentencing, except those charged with a 

sexual assault or an attempted sexual 

assault, any felony offense contained in HRS 

chapter 707, burglary in the first or second 

degree (HRS §§ 708-810, 708-811), robbery in 

the first or second degree (HRS §§ 708-840, 

708-841), abuse of family or household 

members (HRS § 709-906(7)&(8)), or 

unauthorized entry in a dwelling in the 
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first degree or in the second degree as a 

class C felony (HRS §§ 708-812.55, 708-

812.6(1) & (2)), including attempt to commit 

these specific offenses (HRS §§ 705-500, 

705-501).

e. Inmates charged with a felony and awaiting 

adjudication of motions for revocation or 

modification of probation or motions to set 

aside or modify deferral, except for 

(i) inmates serving a term of imprisonment 

for a sexual assault conviction or an 

attempted sexual assault conviction; or (ii) 

inmates serving a term of imprisonment for 

any felony offense contained in HRS chapter 

707, burglary in the first or second degree 

(HRS §§ 708-810, 708-811), robbery in the 

first or second degree (HRS §§ 708-840, 708-

841), abuse of family or household members 

(HRS § 709-906(7)&(8)), or unauthorized 

entry in a dwelling in the first degree or 

in the second degree as a class C felony 

(HRS §§ 708-812.55, 708-812.6(1) & (2)), 

including attempt to commit these specific 

offenses (HRS §§ 705-500, 705-501).

2. To the extent possible, the list shall include 

the following information:

a. The inmate’s name;

b. All criminal case numbers for which the 

inmate is held;

c. The inmate’s status (e.g., pretrial felon,

sentenced felon probationer, pretrial

misdemeanant, petty misdemeanant, etc.); and
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d. The name(s) of the trial or sentencing 

judge(s), if available.

3. This court reserves its authority to order other

measures.

4. This order does not affect any of the orders 

issued in this proceeding. This order also does not affect 

DPS’s authority under the law to release inmates on its own 

accord.

DATED: Honolulu, Hawai‘i, August 19, 2020.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Lisa M. Ginoza