HOUSE OF REPRESENTATIVES

H.B. NO.

398

THIRTY-FIRST LEGISLATURE, 2021

H.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO INMATES.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature finds that Hawaii inmates who serve their sentences in privately operated, out-of-state prisons often face blatant and unacceptable violations of rights guaranteed to them by the federal and state constitutions, including their rights to due process, equal protection, free speech, access to counsel, and to be free from self-incrimination and cruel and unusual punishment. Attorneys have reported instances in which private prison operators have intercepted and read crucial privileged and confidential written communication between inmates and their attorneys. In at least one instance, a private prison passed information obtained from these privileged communications on to prosecutors. In another instance, prison staff allegedly removed and withheld privileged correspondence from an inmate's cell. These actions severely impaired, and very likely prejudiced, the ability of these inmates to prepare for crucial legal proceedings. Further, these actions were committed in violation of established department of public safety policies regarding attorney-client communication.

The legislature finds that this pattern of behavior is unacceptable. Even though the affected inmates are not physically housed within the State or supervised by state employees, they nonetheless remain under the jurisdiction of the department of public safety and should remain subject to all the rights and protections afforded to inmates who are incarcerated within the State. In cases where the rights of an inmate are impaired due to the action of an out-of-state private prison, the State must be able to take immediate action, including the immediate return of the affected inmate to Hawaii, to ensure that the purposes enshrined in both the federal and state constitutions are maintained and that the integrity of the State's criminal justice system is preserved.

The legislature further finds that, notwithstanding these violations, inmates housed outside of the State already encounter issues that inmates incarcerated in Hawaii do not face. Most significantly, inmates incarcerated on the mainland are effectively exiled thousands of miles away from their families, friends, and critical support networks. In addition, a 2017 article that appeared in Vice reported that the private prisons that house Hawaii inmates suffer from numerous instances of violence, limited transparency, and a lack of oversight on the part of the State. At least three Hawaii inmates have been murdered at private facilities on the mainland. Finally, a 2010 report by the office of Hawaiian affairs entitled "The Disparate Treatment of Native Hawaiians in the Criminal Justice System" found that native Hawaiians, who already face disproportionate impacts from the criminal justice system, are significantly more likely to be moved to an out-of-state prison than inmates of other ethnicities. Once transferred, they are "cut off from [the] supportive communities and families that give them a reason to exit prison as soon as possible." Given the inherent problems that out-of-state inmates face, it is critical that the State ensures that these persons are afforded all rights to which they are entitled.

Accordingly, the purpose of this Act is to:

(1) Clarify that the department of public safety retains jurisdiction over any Hawaii inmate who has been transferred to and is incarcerated at a correctional institution located outside of the State;

(2) Provide that the department of public safety may transfer any Hawaii inmate who has been transferred to and is incarcerated at an out-of-state institution back to the State at any time and for any reason; and

(3) Ensure that any Hawaii inmate who has been transferred to and is incarcerated at an out-of-state correctional institution is afforded all rights and privileges available to inmates incarcerated at correctional institutions located within Hawaii, whether the right or privilege is available by law, rule, department policy, or any other authority.

SECTION 2. Section 353-16.2, Hawaii Revised Statutes, is amended to read as follows:

"353-16.2 Transfer of inmates to out-of-state institutions. (a) The director may effect the transfer of a committed felon to any correctional institution located in another state regardless of whether the state is a member of the Western Interstate Corrections Compact; provided that the institution is in compliance with appropriate health, safety, and sanitation codes of the state, provides a level of program activity for the inmate that is suitable, and is operated by that state, by any of its political subdivisions, or by a private institution; and provided further that the transfer is either:

(1) In the interest of the security, management of the correctional institution where the inmate is presently placed, or the reduction of prison overcrowding; or

(2) In the interest of the inmate.

(b) Terms and conditions of the transfer and any reimbursement for expenses shall be agreed upon between the department and the out-of-state correctional institution prior to transfer.

(c) Notwithstanding any other law to the contrary, the department:

(1) Shall have custody and retain jurisdiction over any Hawaii inmate who has been transferred to and is incarcerated at an out-of-state correctional institution pursuant to subsection (a);

(2) May transport any Hawaii inmate who has been transferred to and is incarcerated at an out‑of‑state correctional institution pursuant to subsection (a) back to the State at any time and for any reason; and

(3) Shall ensure that any Hawaii inmate who has been transferred to and is incarcerated at an out-of-state correctional institution pursuant to subsection (a) is afforded all rights and privileges available to inmates incarcerated at correctional institutions located within the State, whether the right or privilege is available by law, rule, department policy, or any other relevant authority."

SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 3050.


 


 

Report Title:

DPS; Corrections; Out-of-State Correctional Institutions; Jurisdiction of Inmates

 

Description:

Clarifies that the department of public safety retains custody of and jurisdiction over any Hawaii inmate who has been transferred to and is incarcerated at a correctional institution located outside of the State. Provides that the department of public safety may transfer any Hawaii inmate who was transferred to an out-of-state institution back to the State at any time and for any reason. Requires Hawaii inmates incarcerated outside of the State to be afforded all rights and privileges available to inmates incarcerated at correctional institutions located within the State. Effective 7/1/3050. (HD1)

 

 

 

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