SCPW-20-0000200 and SCPW-20-0000213

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

SCPW-20-0000200

OFFICE OF THE PUBLIC DEFENDER, Petitioner,

vs.

CLARE E. CONNORS, Attorney General of the State of Hawaiʻi; 

DONALD S. GUZMAN, Prosecuting Attorney, County of Maui; 

MITCHELL D. ROTH, Prosecuting Attorney, County of Hawaiʻi; 

JUSTIN F. KOLLAR, Prosecuting Attorney, County of Kauaʻi; 

DWIGHT K. NADAMOTO, Acting Prosecuting Attorney, City and County 

of Honolulu, Respondents.

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SCPW-20-0000213

STATE OF HAWAIʻI OFFICE OF THE PUBLIC DEFENDER, Petitioner,

vs.

DAVID Y. IGE, Governor, State of Hawaiʻi; NOLAN P. ESPINDA,

Director, State of Hawaiʻi Department of Public Safety;

EDMUND (FRED) K.B. HYUN, Chairperson, Hawaiʻi Paroling Authority,

Respondents.

ORIGINAL PROCEEDING

Electronically Filed

Supreme Court

SCPW-20-0000200

24-APR-2020

06:05 PM
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THIRD INTERIM ORDER

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

and with Wilson, J., also concurring separately)

On April 23, 2020, in response to this court’s April 

15, 2020 interim order, Special Master Daniel R. Foley (“Special 

Master”) filed his second summary report and recommendations

(“Second Interim Report”). The Second Interim Report provides 

updated population numbers and details the efforts that have 

been undertaken since the initial summary report and initial 

recommendations were filed. The Second Interim Report also 

attaches as exhibits the Department of Public Safety’s (“DPS”) 

weekly population reports (dated April 13, 2020 and April 20, 

2020), a letter from the Office of the Public Defender (“OPD”)

apprising the Special Master of its efforts to comply with this 

court’s April 15, 2020 Interim Order and stating some concerns,

the Hawaiʻi Paroling Authority’s progress report (dated April 22, 

2020), a letter from the Hawaiʻi Correctional Systems Oversight 

Commission to DPS Director Nolan Espinda (dated April 10, 2020) 

and DPS’s response letter (dated April 17, 2020), and a letter 

from the Hawaiʻi Correctional Systems Oversight Commission to the 

Special Master (dated April 21, 2020) stating some concerns. 

Upon consideration of the Second Interim Report, 

including the exhibits, and the record,

IT IS HEREBY ORDERED that:

1. The Special Master shall continue to work with 

the parties, the amici, and the many stakeholders to 

expeditiously address the issues in this original proceeding in 

an effort to facilitate a collaborative resolution while 

protecting public health and public safety. Efforts shall 

continue to be undertaken to reduce the inmate population of 

correctional centers and facilities to design capacity. 
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2. We reiterate and clarify previous directives of 

the court:

a. We have expressly stated that this court’s 

orders do not affect DPS’s authority under the law to release 

inmates on its own accord. Any deferral by DPS to this court 

with regards to population relief efforts would be contrary to 

this court’s directive. DPS should continue its efforts to 

implement population relief proposals and any other measures 

within its authority to ensure public health with respect to the 

COVID-19 pandemic. 

b. Pursuant to paragraph 4 of the April 15, 

2020 Interim Order, this court directed DPS to inform inmates of 

various additional conditions of their release and the inmate’s 

continuing obligation to abide by the conditions of release. 

Upon an inmate’s release, DPS shall provide the inmate a copy of 

paragraph 4 of the April 15, 2020 Interim Order. The inmate is 

not required to sign that document nor is it required that the 

document be filed with the court. Any court orders containing 

such a requirement are superseded by this order. 

c. As provided in paragraph 2.c. of the April 

15, 2020 Interim Order, release shall be presumed, unless the 

court finds that the release of the inmate would pose a 

significant risk to the safety of the inmate or the public.

d. As provided in paragraph 4.f. of the April 

15, 2020 Interim Order, a verified residence for an inmate 

should not be required in every case. Specifically, whether a 

verified residence for an inmate will be required in a specific 

case is left to the discretion of the judge, but alternative 

means of maintaining contact such as telephone, probation review 

hearings, or scheduled contacts with probation officers may also 

be employed by the court. Judges are required to make 

individualized determinations and must not require verified 
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residences for defendants, unless such a condition is supported 

by specific factual findings in an individual case. 

3. DPS shall file a brief explanation of the 

definitions of “head count” and “assigned count” reflected in 

its population reports and the reason for the different 

designations. 

4. To the extent it has not done so already, DPS 

shall provide protective masks to each inmate as soon as 

possible. Inmates in custody must wear protective masks when 

transported outside a correctional center or facility. 

5. The Special Master may file reports or 

recommendations for orders to this court as he deems 

appropriate, but shall file another summary report with any 

recommendations on April 30, 2020. In his discretion, the 

Special Master may file confidential documents under seal. 

6. This order does not limit the continued 

collaborative and ongoing efforts currently being undertaken to 

reduce the inmate populations.

7. This court reserves its authority to order other 

measures based on changed circumstances.

DATED: Honolulu, Hawaiʻi, April 24, 2020.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson