Back to the drawing board: legal issues could stop inmate transfers
BY ALTHEA ENGMAN Journal Staff
HattoriThe latest solution to solve overcrowding at the Guam Department of Corrections facility in Mangilao could be dead in the water before it starts.
Inmates have certain legal rights — protected by the U.S. Constitution. These also cover a change to a prisoner’s housing conditions.
Stephen Hattori, executive director for the Guam Public Defender Service Corp., said the public defender’s office has not been contacted by the Department of Corrections on its idea to ship Guam inmates to the facility in Saipan to serve out their terms.
Although the Guam Public Defender has not been contacted, Hattori said, “I think it would be worthwhile to look into this possibility, but the idea that we can just ship off two hundred inmates to the CNMI is not that simple.”
Hattori said that there are certain legal stipulations that come into play.
According to the U.S. Constitution, due process requires that legal matters be resolved according to established rules and principles and that individuals be treated fairly. Hattori said the Eighth Amendment “prohibiting cruel and unusual punishment” protects prisoners against involuntary/non disciplinary out of state transfers.
Therefore, he said, “The program must be voluntary and — perhaps if it will reduce the amount of jail time individuals have to serve — then it might be appealing to some of our prisoners.”
Hattori told the Journal a U.S. Supreme Court precedent allows involuntary transfers as a disciplinary sanction. However, he said inmates are “still entitled to due process.”
He said, “Even when California prisons were forced by Court order (upheld by the U.S. Supreme Court in the landmark case of Brown v. Plata in 2011) to not exceed 138% of maximum capacity, this was done by implementing rehabilitation programs and early release programs, and not by shipping them involuntarily out of state.”
Hattori said other ideas could also take the place of prisoner transfers. “With Guam’s prison over 200% of its capacity, the solution should be building a new prison and — like California — the release of non-violent prisoners.”
Additionally, the move would eliminate anything but telephonic visitation and could also affect future rehabilitation of prisoners back into society.
Hattori said, “The best chance for success for our prisoners who have completed their incarceration is having family support that is maintained by visitation.”
Since the inmates that would be transferred would be post judgment and post any appeal, it is unlikely that they would need legal services.
But Hattori said those services could be required. “They may still have a right to an attorney to address certain post-conviction remedies and the distance would make it difficult to communicate with them.”
BordalloFred E. Bordallo Jr, director for the Guam Department of Corrections; Jeffrey A. Moots, legal counsel for the Office of the Governor; Melanie Brenan, director of the Department of Youth Affairs; and Stephanie Flores, administrator for the Guam State Clearinghouse; traveled to Saipan to investigate the possibility of transferring Guam prisoners to Saipan.
On Dec. 6, they met with Gov. Arnold I. Palacios, Lt. Governor David M. Matapang, and Anthony C. Torres, commissioner for the Department of Corrections in the Northern Mariana Islands.
Bordallo told the Journal the purpose of the trip was to “look at the facilities and engage in conversations, answer questions, and listen to the concerns and reactions of the community —especially with people hearing about the possibilities of Guam prisoners coming over to Saipan and how that would look like.”
Bordallo said it has been made clear to NMI residents that although there are various concerns, this plan is still in the “early stage” and “nothing is set in stone.” Bordallo said any solution will not be discriminatory and will ensure inmates “do not have a violence problem.”
Bordallo is newly appointed, and Torres was confirmed by the NMI Senate in March. The NMI inmate population has remained fairly consistent with a low of 163 in fiscal 2021 and a high of 185 in fiscal 2020, according its Citizen-Centric report for fiscal 2023.
Bordallo said he understands that Guam’s facility has an “overcrowding situation and there are other options being looked at —one being the master plan for a new prison.”
According to Journal files, the Guam Department of Public Works first issued a Request for Proposal for the design of a 1,000-bed facility to be built in phases, with bids due in September, and construction estimated to be completed in the 2035 timeframe.
The date that bids are due was extended for the fifth time to Feb. 5 and one day before the bids were due on Jan. 5. DPW told the Journal that the reason for the further delay is because “bidders had additional questions.”
When the bidding was extended last time, DPW said it was due to “a request from potential bidders.”
Other media reports referred to the RFP being at the Office of the Attorney for review, but Attorney General Douglas Moylan told the Journal on Jan. 2, “… we have answered all questions routed through DPW to us.” There was nothing still with the AG’s office, he said.
The Department of Corrections in Mangilao. Journal file photo.
According to the director, another option would be to fix the existing Guam DOC. “When we get some funding, we can use it to renovate some of our current facilities.”
Bordallo said individuals on “pretrial release who have not been adjudicated will have to remain on island.” For pretrial detainees, lowering their numbers is an issue for the “courts and the Office of the Attorney General,” he said.
In the NMI, “The legislative branch is concerned whether or not there is legislation needed on their side,” Bordallo said. “Guam is affiliated with the Western Interstate Corrections Compact, meaning that for any sort of transfer for those already adjudicated, there is a transfer committee created to make these decisions.” Hattori said he believes that shunting inmates to Saipan has pros and cons.
“It is a short-term fix that could prevent the long-term solution from being implemented,” However, he said, “This is a great discussion, because it evidences an awareness that the current DOC conditions cannot be permitted to continue.” mbj
