Despite a new state law, the state attorney general's office says prisoners incarcerated on the Mainland do not have to be returned to Hawai'i a year before their release to begin their re-entry into Island society.

But state Sen. Will Espero, one of the architects of the law and the head of the Senate Public Safety Committee, disagreed yesterday, saying he wants to see how the interim head of the Department of Public Safety adheres to the law in the next several months.

"The AG's opinion is just an opinion," Espero said. "This is what the Legislature wants: services for the inmates so that when they are released, they are not preying on the vulnerable members of our society."

It was the latest development over Senate Bill 932, which Gov. Linda Lingle vetoed and the Legislature overrode.

Clayton Frank, interim director of the Department of Public Safety, yesterday announced the attorney general's interpretation of SB932, which is now known as Act 8.

"It is our understanding that while Act 8 does not require the department to immediately return all eligible inmates to Hawai'i, we will make every effort to put the necessary programs and other pieces of a comprehensive re-integration program in place so that we can eventually return our inmates home," Frank said. "It would be irresponsible to bring back inmates without adequate housing, and we cannot place our inmates and staff at risk as a result of overcrowding."

Hawai'i now holds more than 2,100 convicts in privately run prisons on the Mainland because there is no room for them in Island facilities. More than half of the state's prison population is now housed out of state.

Frank said it could take years — and uncounted and unbudgeted money — to build or find suitable bed space and develop enough substance abuse, anger management and other prisoner programs to handle returning prisoners.

"We know this plan is not something that can be done in a few months," Frank said. "And it may take a couple of years so that we in turn will build a solid foundation for the inmates that would be eligible for these re-entry programs."

WHAT 'SHALL' MEANS

Key portions of the attorney general's interpretation of Act 8 focused on the word "shall."

"Subsection (a) of section -7 of Act 8 provides that "(t)he 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. ...

"While the word 'shall' is generally regarded as mandatory," the attorney general's office wrote, "in many situations it may be given a directory meaning.

"... Act 8's provision for the return of Mainland inmates is directory, not mandatory."

Espero said he and his House counterpart, Cindy Evans, chairwoman of the House Public Safety and Military Affairs Committee, "had serious discussions about whether the word should be 'shall' or should it be 'may.' If we put 'may,' they weren't going to do it. We intentionally put 'shall' because we saw this as a mandate."

After the passage of SB932, prison officials publicized a worst-case scenario in which more than 1,100 inmates from Mainland prisons would be returned by the end of 2008 to prepare them for release. They warned that Hawai'i's prison system and residential treatment programs cannot accommodate that many returning convicts.

"We did not, will not, have sufficient funding for providing the meals for these inmates, the clothing, medical services," Frank said yesterday. "And in the event that we have to release inmates, people might have to furlough and release inmates early to accommodate them."

But Espero countered yesterday that prison officials can simply ship long-term inmates in Hawai'i to the Mainland and fill their openings in the Islands with returning short-term prisoners.

He also said that SB932 included money for inmate programs, such as the more than $1 million that went to a single program on Maui.

"There's a provision in the bill that says if you can't implement some of these items, give us a report why," Espero said. "I know Clayton Frank has been in the prison system a long time, so he has a lot of knowledge that's going to be useful to me and the Legislature. I want to see a leader in Public Safety who's willing to be progressive, take the initiative to make positive changes and won't be a roadblock or an obstacle to reform. All of these things will come up next session, I'm sure, during his confirmation process."

NO FUNDING SOUGHT

The Lingle administration has said for years it wants to expand its re-entry programs for inmates returning from the Mainland, but lawmakers say the administration has done little to make that happen.

Prison officials haven't asked for money to expand transition programs for inmates who are leaving the prison system, and apart from one jail project on Maui, have not proposed new sites in Hawai'i where inmates can be housed while they are preparing for release, Espero said.

The proposed jail in Pu'unene on Maui could be opened by 2010, Frank said yesterday.

Reach Dan Nakaso at dnakaso@honoluluadvertiser.com and Kevin Dayton at kdayton@honoluluadvertiser.com.