The Hawaii legislature created a prisons oversight commission this year to help fix the broken corrections system and head toward a therapeutic model, but not much has happened since the governor gave his stamp of approval in July.

Only two of the five members have been appointed, and a full-time director, as required by statute, has not yet been hired. A spokesman for the state Attorney General’s Office, which houses the commission, said the panel currently has no plans for its first meeting.

There’s no question that Hawaii’s prisons are overcrowded, faltering and unsustainable. A detailed prison reform task force report submitted to the Legislature earlier this year pointed out numerous shortcomings, including overrepresentation of Native Hawaiians in jails and prisons and how some facilities do not meet minimum constitutional standards.

To combat these problems, the task force came up with a number of recommendations. Among them was for the state to establish an independent oversight body for the correctional system that would serve as a watchdog over the entire operation.

The Legislature delivered. In the 2019 session, it passed House Bill 1552, which became Act 179. The act, signed into law by Gov. David Ige on July 2, established the five-member, independent Hawaii Correctional System Oversight Commission, among other criminal justice reform measures.

The commission would, first and foremost, investigate complaints at Hawaii’s correctional facilities.

In addition, it would facilitate a “correctional system transition to a rehabilitative and therapeutic model,” Act 179 says.

That’s the key, said Robert Merce, a retired attorney and vice chair of the prison reform task force that produced the report.

“The current punitive system that we have had in place for half a century or more has not produced the outcomes that we want,” he said. “It has not made our communities safer. It’s put too many people behind bars for too long and at too great an expense.”

If implemented as the statute promises, this could be a “paradigm change,” he said. Hawaii could be at the forefront by establishing a rehabilitative prison system, which was a key recommendation by the task force.

Merce said he would like to see the commission get to work as soon as possible.

“They’re sure taking their time,” he said. “What’s happening with everybody else?”

Independent Oversight Is Critical

An increasing number of states are calling for independent oversight of their correctional systems, according to the new law. At least eight states have established such mechanisms to monitor their prison operations.

The prison reform task force sought unhindered access, transparency and full cooperation from all government agencies.

The new law creating the oversight commission delivered on some key points of the task force’s recommendations, including having a full-time head administrator with a fixed term, providing the commission full access to the prison facilities and records and requiring the administrator to conduct ongoing investigations.

“I think it could work really well if they get the right people,” Merce said.

The law also consolidates this commission with other existing corrections-related commissions, including the reentry commission, which is supposed to sunset at the end of this year, and the corrections population management commission.

That means the larger Correctional System Oversight Commission is also charged with establishing maximum inmate population limits for each facility and working with the Department of Public Safety on comprehensive reentry programs.

The commission also has a budget for staffing, which is unlike some of the other public safety-related boards and commissions the state has established, such as the Law Enforcement Standards Board. That board has been delaying producing certification standards for over a year, saying it has no money or staffing to do so.

For fiscal year 2020, the corrections oversight commission has a budget of about $160,000 and in the following year, about $330,000. The statute authorizes one administrator with the possibility of at least two researchers and one clerical assistant.

Merce, however, worries that the budget isn’t enough to carry out the functions that the law requires.

He noted that in fiscal year 2016 the Hawaii Office of the Ombudsman received 2,706 complaints from inmates against the public safety department. The commission would be in charge of investigating those inmate complaints.

“It’s going to take a lot of staff time to delve into them,” he said.

Besides, the administrator and other staff of the commission would have other duties, including preparing monthly reports to the commission, attending meetings at least once each quarter, submitting annual reports to the governor and Legislature and conducting ongoing studies of not only Hawaii’s system but other states and federal laws, too.

The state has not yet hired someone for the administrator position, said Krishna Jayaram, a spokesman for the Attorney General’s Office. His office houses the commission for bureaucratic purposes only, and the commission is intended to be completely independent.

Technically, the administrator just needs to start by Dec. 1 this year. That’s what the statute says.

Commission Members Are Key

Merce said the state should take extra care to hire someone who has experience in transitioning a correctional system from a punitive one to a rehabilitative one, since Hawaii has explicitly stated that as its goal.

The state should also get the commissioners right, Merce said. The two appointments so far came from the Office of Hawaiian Affairs and Hawaii Supreme Court Chief Justice Mark Recktenwald.

OHA was the first to announce its appointment — Mark Kawika Patterson, the administrator of the Hawaii Youth Correctional Facility — on July 5, just three days after the law was signed.

Patterson has worked in corrections for more than 30 years in Hawaii and Nevada, and was also previously a warden of the Women’s Community Correctional Center in Kaneohe.

Patterson has faced criticism in the past for his leadership at the youth facility. In 2017, he was in the news after he discontinued programs, including substance abuse therapy, that were put in place as part of a settlement agreement with the federal Justice Department.

“The state is known for creating task forces that nobody follows up on. So we need to have that follow up.” — Commission member Mark Patterson

“When I came in, I removed programs that were not being utilized successfully,” Patterson said in an interview. “They caught me in the middle.”

Since then, replacement programs have been put in place, he said.

Although the appointment to the commission came as a surprise, Patterson said he looked forward to serving on it.

His platform, he said, has always been to transition from a punitive corrections system to a therapeutic one, which is one of the major goals of the commission.

“It’s a journey that takes time,” he said. “And it takes leadership.”

A shift like that would require creating an “environment for transformation,” where inmates can learn to be productive citizens rather than “angry criminals,” he said. That would require changes in policy, training, environment and organization.

OHA was a big push behind the prison reform task force, Patterson said, adding that reform can’t wait any longer.

“The state is known for creating task forces that nobody follows up on,” he said. “So we need to have that follow up.”

Recktenwald’s appointee is retired circuit judge Ronald Ibarra of Kona. He is a former deputy prosecutor in Kona and Hawaii County Corporation Counsel.

Three other appointments are to be made by the governor, Senate President and House Speaker.

Prison Officials Will Need To Collaborate

Public Safety Director Nolan Espinda supported the creation of the Correctional System Oversight Commission during the legislative session, saying collapsing the multiple corrections-related commissions will promote efficiency and increase member participation.

A former prison warden himself, Espinda is aware of the problems going on inside the walls of Hawaii’s correctional facilities, some of which he presented to a panel of state senators during a recent joint public safety, and ways and means committees hearing on Maui.

He also gave updates on the investigation of the March riot at the Maui facility, where more than 40 pretrial detainees fed up with bad conditions flooded the modules, set things on fire and attacked guards.

At the time of the riot, Espinda said there were ants in inmates’ commissary merchandise, recreation time had been reduced because of staffing issues, visitation rules changed to no contact, none of the phones were working and the cells were overcrowded.

Those problems aren’t unique to the Maui prison, though.

Overcrowding and deteriorating facilities are a systemwide issue, as detailed in the prison reform task force report. For example, the Hawaii Community Correctional Center was operating at 185% of capacity in 2018, and the Maui facility, at 196%.

At the Oahu facility, three prisoners were crowded into cells made for two, so one of them “must sleep on the floor with his head next to the toilet,” the report said.

Espinda also reported to senators that staffing shortages have led to nearly $14 million in overtime pay for public safety department employees, about $10 million of which went to corrections staff.

Toni Schwartz, a department spokeswoman, said in an email statement, “The Department looks forward to the Oversight Commission’s recommendations for additional best practices to help effectuate a more effective correctional system for Hawaii.”

While the statute requires the public safety department to provide access to facilities and records to commissioners, it does not specifically promise the same access to the public.

Merce said transparency should be presumed in this case, as the whole point of an oversight commission is for there to be more transparency.

However, broad language has tripped up other state-sanctioned boards before.

For instance, the Law Enforcement Officer Independent Review Board, which is supposed to provide independent oversight on officer-involved fatalities, has not yet decided whether it should release its investigative findings and materials to the public two years after the board was created.

However, Merce said he remains hopeful that this new commission will deliver on the promise of transitioning Hawaii’s correctional system from a punitive to a rehabilitative one.

“I’m going to be optimistic and positive and say that’s hopefully going to happen,” he said. “But I’m also going to say we all need to watch very carefully and make sure it happens. That’s part of our civil responsibility.”

State Rep. Gregg Takayama, who was also on the prison reform task force, said he is also optimistic.

“Everyone is taking this very seriously,” he said. “This commission is not intended to be adversarial. It’s intended to work with the director of public safety towards improving the correctional system.”