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As COVID-19 spread across our country, many jurisdictions struggled with how to protect those in our prisons and jails. Many jurisdictions responded by, among other things, seeking to reduce the number of people entering the system while also finding ways to safely release more individuals into the community.[1] Nevertheless, there has been litigation arguing that these efforts have not been extensive enough, and judges have weighed in about how we should protect those who are medically vulnerable or at high risk of contracting COVID-19 in our prisons and jails.[2]

One petition, filed by the Hawaii Office of the Public Defender, asked the state’s supreme court to order additional action by the Hawaii Department of Public Safety and the Hawaii Paroling Authority in response to the risk of COVID-19.[3] This petition sought expedited release for those incarcerated for any nonviolent offense without individualized hearings, a temporary suspension of cash bail, and the release through parole of individuals who are over age 65, pregnant, or detained for a technical violation of parole.[4] The Department of Public Safety, Paroling Authority, and four county prosecutors all filed answers stating significant objections to those requests and suggesting alternative courses of action.[5]

Supreme Court Order

The Hawaii Supreme Court ordered a variety of temporary policy changes across the Aloha State’s justice system, reasoning that the court must balance the interests of public health and public safety. These changes applied to any individual who was not charged with or convicted of a list of offenses including homicide, assault, kidnapping, sexual offenses, child abuse, burglary, and violating a quarantine requirement.[6]

The changes included:

  1. Suspending intermittent jail sentences and discouraging courts from imposing new intermittent jail sentences.
  2. Releasing anyone arrested or detained solely for misdemeanor offenses.
  3. Barring all courts from imposing bail for misdemeanor offenses.
  4. Discouraging courts from imposing bail for defendants charged with a felony not on the exclusion list and encouraging the release of such defendants to home confinement or electronic monitoring.
  5. Discouraging the detention of persons who violate their probation terms unless they pose “a significant risk to public health or safety.”
  6. Clarifying that individuals incarcerated in state prisons who test positive for COVID-19 can be released without taking another test if they meet CDC contagion guidelines.

These actions are not unusual by the standard of temporary policy changes adopted by many courts, prosecutors, law enforcement agencies, and corrections departments in response to COVID-19.

The Hawaii Supreme Court issued a second order a few days after the first, rejecting a motion from the Office of the Public Defender to preemptively issue an order to compel compliance. The court found that this motion was not “sufficiently supported” and “not within the scope of the relief previously ordered.”[7] These two orders superseded a variety of other orders issued by the Hawaii Supreme Court during the preceding weeks.[8]

Concurring Opinion

Justice Sabrina McKenna’s concurring opinion raises concerns about the inclusion of “violation of interstate or intrastate travel quarantine requirements” in the list of excluded crimes.[9] She notes that the majority’s order allows the incarceration of those who violate quarantine procedures.[10] But unlike the other crimes in the exclusion list, violations of quarantine requirements are not the violation of a criminal statute. Rather, they are violations of executive orders authorized by Hawaii’s emergency management statutes.[11]

These statutes delegate extensive powers to the governor when the state is facing “disasters or emergencies of unprecedented size and destructiveness.”[12] They provide the governor with the sole power to declare the existence of an emergency and then adopt rules that “have the force and effect of law,” including a quarantine requirement for people exposed to an infectious disease.[13] These statutes allow criminal sanctions for violations of quarantine requirements, but they neither include nor require a mens rea standard, and they only provide minimal requirements for how the public should be informed of these new rules.[14] This could present serious overcriminalization and due process problems because under the order, a person could be incarcerated without any actual knowledge of the state’s current quarantine requirements.

Commentators across the political spectrum have expressed concern that government responses to COVID-19 might rely too much on the heavy hand of criminal sanctions, exacerbating preexisting overcriminalization problems.[15] Local law enforcement has already used the Hawaii Supreme Court order to jail at least one person.[16]


Note from the Editor:

The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at [email protected].

[1] See e.g. Dave Minsky, Sheriff has booked, released nearly half of those arrested since coronavirus emergency order, Santa Maria Times (Oct. 28, 2020),; 646 more Kentucky inmates released from prison to prevent COVID-19 spread, WLKY (Aug. 25, 2020),; Jordan Rubin, Will Pandemic Be ‘Tipping Point’ For Justice Reform?, The Crime Report (June 4, 2020),; Xerxes Wilson, Why Delaware Arrests Have Plummeted During the Pandemic, U.S. News and World Report (May 2, 2020),; James Mayse, Arrests have declined dramatically due to effort to reduce COVID-19 exposure, Messenger-Inquirer (Apr. 17, 2020),; Kenneth Lipp, Jail inmate roster halved, News Times (Apr. 16, 2020),; Heather Walker, Coronavirus prompts prisons to parole inmates more quickly, WOOD TV (Apr. 14, 2020),; James Baron, Some non-violent inmates released from area jails amidst coronavirus pandemic, The Free Lance-Star (Mar. 28, 2020),; Memorandum from Attorney General William Barr to Director of Bureau of Prisons (Mar. 26, 2020), available at; Jody Godoy & Stewart Bishop, Federal Prisons Can Send More Inmates Home. Will They?, Law 360 (Mar. 26, 2020),; Kerri O’Brien, Area jails releasing inmates to prevent COVID-19 outbreak behind bars, ABC 8 News (Marc. 23, 2020),

[2] See, e.g., United States v. Zukerman, No. 16 Cr. 194 (AT) (S.D.N.Y. Apr. 3, 2020); United States v. Ramos, 450 F. Supp. 3d 63 (D. Mass. Mar. 26, 2020); Burton Bentley II, The Growing Litigation Battle Over COVID-19 in the Nation’s Prisons and Jails, (Aug. 25, 2020),; Matthew Santoni, Inmates Say Pittsburgh Jail Not Following COVID-19 Guidance, Law360 (Apr. 9, 2020),; ACLU Sues Oakdale Federal Prison For Release Of Those Most At Risk From Covid-19, ACLU (Apr. 6, 2020),

[3] Petition for Extraordinary Writ Pursuant to H.R.S. §§ 602-4, 602-5(5), and 602-5(6) and/or For Writ of Mandamus, In the Matter of Individuals in Custody of the State of Hawai‘i, No. SCPW-20-0000509 (Haw. Aug. 12, 2020) [Hereinafter “Petition”]; See also John Burnett, Surge in COVID-19 cases spurs petition from Office of Public Defender seeking the release of some inmates, Hawaii Tribune-Herald (Aug. 14, 2020),

[4] Petition supra note 3 at 14-16.

[5] Order Re: Petty Misdemeanor, Misdemeanor, and Felony Defendants, 2 (Haw. Aug. 27, 2020), available at

[6] Id at 3-5.

[7] Order Denying Petitioner’s Motion to Compel Compliance with this Court’s Orders, 2 (Haw. Sep. 1, 2020), available at

[8] Order Granting in Part and Denying in Part Motion for Clarification and/or Reconsideration (Haw. Aug 26, 2020), available at; Order Re: Petty Misdemeanor, Misdemeanor, and Felony Defendants at the Maui Community Correctional Center, the Hawai‘i Community Correctional Center, and the Kaua‘i Community Correctional Center (Haw. Aug. 24, 2020), available at; Interim Order for In the Matter of Individuals in Custody of the State of Hawaii (Haw. Aug. 19, 2020), available at; Amended Order Re: Felony Defendants (Haw. Aug. 18, 2020), available at; Amended Order Re: Petty Misdemeanor and Misdemeanor Defendants (Haw. Aug. 17, 2020), available at; Interim Order for In the Matter of Individuals in Custody of the State of Hawaii (Haw. Aug. 14, 2020), available at; Order for In the Matter of Individuals in Custody of the State of Hawaii (Haw. Aug. 13, 2020), available at

[9] Order Re: Petty Misdemeanor, Misdemeanor, and Felony Defendants (Haw. Aug. 27, 2020) (McKenna, J., concurring and dissenting), available at

[10] Id.

[11] Haw. Rev. Stat. § 127A-1-32 (2020).

[12] Haw. Rev. Stat. § 127A-1; 127A-12; 127A-13; 127A-14; 127A-15; 127A-25 (2020).

[13] Haw. Rev. Stat. § 127A-13; 127A-14; 127A-25 (2020).

[14] Haw. Rev. Stat. § 127A-15 (2020).

[15] Timothy Head, How the coronavirus is revealing America's over criminalization problem, The Hill (June 1, 2020),; National Association of Criminal Defense Lawyers, NACDL Supplemental Statement of Principles and Further Call to Action Concerning COVID-19 and America’s Criminal Justice System (May 11, 2020),; Betsey Pearl, et al., The Enforcement of COVID-19 Stay-at-Home Orders, Center for American Progress (Apr. 2, 2020),

[16] Katie Dowd, San Francisco woman jailed for allegedly violating Hawaii COVID-19 rules, SFGate (Nov. 18, 2020),