ACLU suit targets
late jail releases

The suit seeks an end to the
state practice of holding prisoners
for hours after acquittal

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By Debra Barayuga
dbarayuga@starbulletin.com

The American Civil Liberties Union of Hawaii has filed a federal lawsuit on behalf of state prisoners who it contends were illegally detained after being acquitted of criminal charges and ordered released by the courts.

The lawsuit was filed yesterday in U.S. District Court on behalf of Gregory Tapaoan, Michael Mars and Pedro Riberio, who represent a class of individuals estimated in the hundreds.

"It's bad enough to have to wait in prison to prove their innocence, but to be treated like this is truly astounding and unacceptable," said Brent White, legal director of ACLU Hawaii. "It's egregious the state has engaged in this type of illegal behavior for so long."

The lawsuit names as defendants Director of Public Safety Ted Sakai, acting chief of the Sheriff Division F. Cappy Caminos and Oahu Community Correctional Center Warden Clayton Frank.

The Public Safety Department had not yet been served with the complaint, and Sakai could not comment on the specific allegations.

However, "As a general rule, the Department of Public Safety will only detain inmates upon the receipt of bona fide court orders for detention, and will similarly only release inmates upon the receipt of bona fide court orders for release," Sakai said in a written statement.

The practice violates individuals' basic constitutional rights to be free from illegal search and seizure and detention, White said. It is no different from taking an average person off the street and subjecting them to this kind of treatment, he said.

The ACLU, assisted by the law firm Davis Levin Livingston Grande, is asking that the practice be stopped immediately and that individuals who were illegally detained be compensated monetarily.

Tapaoan, Mars and Riberio all were found innocent of criminal charges in state court earlier this year and last year.

But rather than being allowed to walk out of the courthouse free men, they were handcuffed and detained in holding cells for hours by state deputy sheriffs, chained with other prisoners and taken back to the Oahu Community Correctional Center, where they were subjected to indignities and treated no differently than convicted prisoners, White said.

According to the lawsuit, the plaintiffs and others were held at OCCC for hours, forced to submit to cavity searches, made to wear prison clothing, denied food or permission to make a phone call and harassed by prison guards or other convicted prisoners before finally being released.

The reason given for returning them to prison and detained was for "out-processing," White said. But they ended up forgotten or lost in the shuffle before being let go.

Processing individuals for release at OCCC allows the department to ensure they have no other orders requiring their detention by other state or federal agencies, or for other pending charges, Sakai said. Also, personal belongings are returned to the individuals when they return to OCCC.

The state's practice, according to state Public Defender Jack Tonaki, had been going on long before 1985, when he joined the Public Defender's Office. Assuming a defendant who has been acquitted faces no other pending charges, he is taken back to the facility where he is initially detained and discharged only when a judgment is received from the courts reflecting an acquittal, he said.

Acquitted persons are processed like any prisoner returning from court and released back to a detention facility, Tonaki said.

Because it was an administrative practice, there was nothing public defenders could do about it, and they could not bring any civil suits, he said.

Tonaki said he found that in most circumstances, individuals will be released the same day after a few hours of waiting.

"But every hour in prison is an hour that person doesn't have their freedom, so there is definitely an argument that they should be released down at the courthouse," he said.

The problem in Hawaii, Tonaki said, is that the agency that holds prisoners is separate from the courts. If the courts did the discharging, then releases could be more streamlined. In other jurisdictions, defendants are detained in the courthouse or in an adjacent building rather than returned to prison until they are discharged.

Tonaki said his office will be watching this case closely. "If this can improve the criminal justice system by getting people released from custody earlier, when by law they should be released, we're in favor of it."

Based on what plaintiffs in other states have received, the state has potential exposure "into the millions," White said.

The County of Los Angeles settled in August for a record $27 million, White said. Similar suits in Florida, New York and California all found in favor of plaintiffs, White said.