State can leave inmates on mainland, attorney general says

Bennett's opinion says the provision in the law is a directive, not a mandate

The state does not have to return hundreds of Hawaii inmates being held on the mainland even though a new state law says it does, according to an opinion from state Attorney General Mark Bennett.

The opinion said the provision in the law requiring the return of inmates at least one year prior to their release from custody is a directive, not a mandate.

The provision became law last month when state lawmakers overrode Gov. Linda Lingle's veto of the bill.

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A new law that seeks to bring back Hawaii prisoners being held on the mainland when they have less than a year remaining on their sentences has no provision making it mandatory, according to an opinion by the attorney general's office.

That means there will be no immediate return of hundreds of Hawaii inmates who fit that criterion, said Clayton Frank, interim state Department of Public Safety director.

At issue is a new state law that states, "The director of public safety shall return Hawaii inmates held in out-of-state prisons at least one year prior to the inmate's parole or release date to participate in programs preparing them for re-entry on the island where they have the most support."

Gov. Linda Lingle vetoed Senate Bill 932 because she said it would create dangerous overcrowding and could force the early release of other inmates to make room for those returning. State lawmakers overrode Lingle's veto.

Frank said there are more than 700 inmates in mainland prisons who are within a year of release from custody and another 400 parole violators who are scheduled to be released within a year.

The opinion, dated July 30, says the Legislature did not intend the provision to be mandatory because it is part of a comprehensive offender re-entry system that requires maintaining and expanding existing programs to prepare inmates for re-entry into the community.

"It would be unreasonable to expect that such a system would be immediately available to accommodate the return of the mainland inmates," the opinion states.

Deputy Attorney General Russell Suzuki drafted the opinion, and state Attorney General Mark Bennett approved it.

The opinion also points to the bill's committee report, which says the return of mainland inmates "is to be contingent upon the existence of the appropriate programs in Hawaii."

Frank said he has full confidence in the opinion but anticipates legal challenges by affected inmates.

Senate Public Safety Committee Chairman Will Espero said lawmakers intended to make the prisoners' return mandatory.

"We put 'shall' because we want it to be mandatory," said Espero (D, Ewa-Kapolei-Ewa Beach). "In essence we told the department, 'Make it happen.'"

The Legislature cannot punish the administration for not carrying out its wishes, Espero said.

However, Frank can expect grilling from lawmakers at the end of the year when he provides a progress report on the law and when he appears before senators next year for confirmation.

Frank said he wants to bring back the mainland inmates, "but first we need enough bed space and programs. It would be irresponsible to bring back inmates without adequate housing," he said.

Inmates considered for transfer to mainland facilities need to have at least three years remaining on their sentences, to have at least a year remaining on their punishment for violating parole and to refuse to participate in treatment and work programs here, said Louise Kim McCoy, public safety spokeswoman.

Even if they meet those criteria, the state does not transfer to mainland facilities inmates who have pending charges, are chronically ill or have medical problems.