Convicts to be paid
for delayed release

The state will pay $1.2 million
to settle the ACLU lawsuit

When a Circuit Court jury found Ike Fowler not guilty of first-degree robbery in February, he was allowed to walk out of the courtroom a free man.

Before 2002 that was not the case for hundreds of defendants who were acquitted or released by order of the court.

Instead, they were sent back to prison and treated like any other convicted inmate, to be "out-processed" before being released, days and sometimes weeks or even months later -- most times because the court's written order for release was delayed or lost.

Federal Magistrate Leslie Kobayashi approved a $1.2 million settlement agreement yesterday reached between the American Civil Liberties Union and the state to compensate such defendants, who were over-detained and subjected to invasive strip searches between December 1999 and December 2002.

A federal lawsuit filed by the ACLU in December 2001 on behalf of Gregory Tapaoan and other inmates who were detained longer than they should have been has also led to more timely release for defendants who have been acquitted, had their charges dismissed or completed their sentences.

They include defendants who were not immediately freed after being placed on supervised release, released on their own recognizance, granted probation or a deferral of their plea, or whose sentence expired because credit was given for time already served.

Of about 20,000 to 22,000 defendants released during the three-year period, the state estimates that about 200 were not released when they should have been, said Deputy Attorney General Kendall Moser.

As part of the settlement, the state began implementing new procedures in 2002 to ensure that inmates are released more expeditiously and to improve communication between the courts and Department of Public Safety.

Deputy public defender Debra Loy, who represented Fowler and other defendants whose releases had been delayed in the past, said the settlement and the changes cannot come soon enough.

"The money is nothing compared to the harm," she said, "but it makes people respect the right that's been violated if they have to pay."

The ACLU is pleased not only that the defendants will be compensated, but that there will be "permanent, systemic changes that will protect the civil and constitutional rights of inmates in the future," according to ACLU attorney Susan Dorsey, who called the settlement "fair."

Plaintiffs' attorney Mark Davis said 2,000 notices were sent to potential claimants, and he estimates the class members at 500 or 600 -- more than double the state's estimate.

The deadline is mid-July to submit claims to the claims administrator at P.O. Box 3373, Honolulu, HI 96801, or online at claims@hawaii.rr.com.

After attorneys' fees, about $700,000 will be divided among claimants. Under the settlement, claimants will be paid a maximum of $1,000 for every day they were not supposed to be incarcerated, and $3,000 per claimant who was strip-searched.

If the claims exceed the available funds, claimants will receive a reduced pro rata share. Any money left over will go to the University of Hawaii William Richardson School of Law to support prisoner rights litigation that will benefit the plaintiff class.