Hawaii corrections officials refuse to publicly disclose the names of inmates who die in the state network of prisons and jails, and in most cases do not even publicly disclose when a death has occurred.
In a year-long debate, State Department of Public Safety officials insist they have no choice because federal law prohibits disclosure of inmate deaths.
Legal experts and lawyers in the judiciary disagree at all, and critics of state policy say the secrecy of prisoner deaths prevents lawmakers and the public from knowing whether prisons and prisons in Hawaii are safe or humane.
The current practice is to publish almost no information on inmate deaths. Last year 16 Hawaii prisoners died in state custody, but the only deaths the DPS saw compelled to publicly announce were of two inmates who had died of COVID-19.
So far this year, the department has announced that five more inmates died of COVID-19 at Halawa Correctional Facility in January. More press releases were released last month announcing the deaths of two other halawa prisoners from coronavirus.
And that raises new questions as lawmakers consider a bill that will require more information to be made public if inmates die.
House Bill 796, “strongly opposed” by the State Department of Public Safety, would require more information about inmate deaths to be made publicly available from obituary notices that the prison system must submit to Governor David Ige’s office.
Heavily edited versions of these obituaries were published for some time in 2019 and 2020. This stopped, however, when the Department of Public Security began to label every death report with a bold warning that it was illegal to share the reports with the public.
However, knowing when and how prisoners die in custody is critically important, said Michele Deitch, a distinguished lecturer at the Lyndon B. Johnson School of Public Affairs and the University of Texas at the Austin School of Law. Deitch specializes in overseeing penal systems and prison and prison conditions.
“To me, this is just so fundamental to have transparency about what is going on in our prison systems,” she said. “These are the most closed institutions in our society, and there is nothing more fundamental about the way they work than keeping the people in their care safe and alive.”
At least some lawmakers agree, including MP Matt LoPresti, who wants to publish more information on prison suicides, assaults, murders and rape.
“When someone is in state custody and is a victim of extreme violence, it is in the public interest to know because we cannot fix such problems if we do not know about them,” he said.
“We haven’t known about things like that for too long and people didn’t want to talk about things like that, and I think that created a culture of looking the other way,” LoPresti said. “I don’t think that’s the correct moral answer.”
When asked why the department announces some deaths but not others, a public safety spokeswoman replied that the Federal Health Insurance Portability and Accountability Act (HIPAA) prohibits the department from “posting individually identifiable health information publicly”.
As a result, correctional officers are “prohibited from releasing or confirming names or publicly discussing any other information specific to inmates who died in custody without the approval of a deceased person’s personal representative,” the department wrote in a statement.
Brian Black, president and executive director of the Civil Beat Law Center, described the response as “an insistent commitment to secrecy”.
“If a person hired by the criminal justice system to care for the department dies in their care, there is no justification for hiding that fact,” Black said.
Under the current system, prison death information sometimes leaks out of the prison system when prison staff, prison staff, or inmates’ relatives disclose information about specific cases.
While the department does not normally announce inmate deaths, public safety officers will confirm deaths and provide some information when reporters or others inquire about specific cases.
In practice, this means that the public is never informed of most deaths in state prisons and prisons.
The deaths of Hawaii inmates have been kept secret for so long that in 2019 prison reformers banded together to lobby lawmakers for a new law requiring prison officials to report the death of every inmate to the governor.
These reports should include where and how the prisoners died. However, this new law, known as Act 234, provided little additional information to the public.
Law 234 required prison officials to file death reports with the governor, and the governor passed the reports – with almost any information obscured or redacted – to state lawmakers.
When the legislature passed the heavily edited documents on to the media, the first results were sometimes instructive.
A report filed in late 2019 showed that an inmate at the Oahu Community Correctional Center was suspected of beating another inmate to death in an apparent prison murder that law enforcement officials had not publicly disclosed.
Proofreaders later attempted to block the publication of even the edited reports. The Department of Public Security began to label each report to the governor with a warning in bold that the reports were prohibited from disclosure because they contained “HIPAA information.”
Black said the department misinterpreted the HIPAA law when it blocked the publication of these death reports to the governor. The Attorney General’s Office now appears to be reconsidering this policy and could allow the publication of edited versions of the reports.
In any event, lawmakers clearly have the power to simply state in state law that information about inmates’ deaths is public – including reports to the governor, Black said. If lawmakers do so, it will override HIPAA, he said.
Public Safety Director Max Otani declined to be interviewed for this story. But he told lawmakers on Feb. 24 that it would be open to releasing more information on inmate deaths if the law allows.
“When someone is in state custody and a victim of extreme violence, it is in the public interest to know because we cannot fix such problems if we do not know about them.” – Matt LoPresti MP
He acknowledged that if state law requires the department to post information about inmates who died in prison, “that sort of thing gets us through the HIPAA issue.”
Otani also urged the House Judiciary and Hawaiian Affairs Committee to “identify criteria where the public interest outweighs privacy, who is legally a family member, and the public safety are not released when a criminal investigation is pending , and finally allowing public safety to edit reports that might harm or embarrass the family. “
“If you can address these issues, I am definitely ready to make this information public,” Otani told the committee.
Otani told committee members at the same hearing, “We normally publish information in the press about a death (that is) that cannot be identified. Based on our advice from our attorneys, we do not identify names, disclose age range, gender, facility (in which) they died, and the date the person died. “
In fact, the department has not released any of this information publicly this year or last, except for the nine deaths of COVID-19 inmates.
A department spokeswoman confirmed in a written statement this week that of the 16 deaths last year, only two public announcements were made – both press releases issued after inmates died from COVID-19.
Honolulu attorney Robert Merce, who supported the 2019 bill that became Act 234, believes that inmate deaths should be reported publicly “routinely, systematically, and fully.”
“It is the place where we need the greatest transparency about everything that is going on in the correctional area because we cannot get behind the walls of the prison so easily and speak to the people who are incarcerated there very easily “, he said.
Regarding HIPAA concerns, Merce pointed out that other states such as Nevada routinely publish the names of inmates who died in custody, along with ample information about them.
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