A new law that requires prison officials to report to the governor each time an inmate dies in custody has already revealed the case of a prisoner who died on Christmas morning after being assaulted at Oahu Community Correctional Center. Prison officials did not publicly announce the death, which was noted in state reports obtained by the Honolulu Star-Advertiser.
The reports also show the state Department of Public Safety, which operates the Hawaii prison system, is withholding key information from the mandated reports on inmates who die in state prisons and jails. Those reports are required under Act 234, which the state Legislature passed and Gov. David Ige signed into law last year.
The first dozen inmate death reports under Act 234 were released to the Star-Advertiser Thursday by House Speaker Scott Saiki’s office, but prison officials redacted almost all details from the documents such as the names, ages and gender of the inmates who died. Some of the reports do not list even a tentative cause of death.
But in one surprising revelation, a report filed with the governor on Dec. 26 describes the death of a prisoner on Christmas day in a case that Honolulu police “initially classified as a homicide resulting from an inmate on inmate assault that occurred at OCCC on November 19, 2019.”
A review of recent news releases issued by the Public Safety department shows the prison system did not publicly announce either the OCCC attack in November or the death more than a week ago of one of the inmates involved.
Kat Brady, who has been a frequent, vocal critic of the state prison system, said the failure to publicly announce what police classified as a homicide at OCCC raises concerns that prison officials may have withheld information from the public in other cases where inmates were murdered or committed suicide in the state’s prisons and jails.
The lapse in reporting the Christmas death is concerning “because it is a public institution that’s funded by public money,” said Brady, who is coordinator of the Community Alliance on Prisons.
“You have an obligation to do that. These people are under your care and custody, and they are our friends and family in there, so to me, it’s not even a question. It’s ridiculous that we’re even asking that,” she said.
State Sen. Clarence Nishihara, who pushed for the bill that eventually became Act 234, said lawmakers may need to amend the new law to force the prison system to release more information. He also said he may schedule a hearing to question administration officials about the information they are withholding, and why.
“Let’s be honest, Public Safety is less than forthcoming in giving you anything, and that’s the problem,” said Nishihara (D, Waipahu-Pearl City). “If they don’t give you the information you need, then how can you ask for corrective action?”
Allegations that there have been too many inmate suicides in the Hawaii correctional system were part of the impetus behind Act 234, but lawmakers don’t have ready access to specific cases and data that would allow them to evaluate those claims, he said.
Nishihara said he believes the attorney general’s office has been “complicit” in the withholding of information by the public safety department. “The way they cover it up, they say, ‘We can’t give you that and we can’t give you this,’ and so you really don’t know anything. They keep you in the dark,” he said.
Act 234 requires the public safety director to report to the governor within 48 hours any death of an inmate or correctional employee at a state prison or jail, or at any private prison where Hawaii inmates are held. The governor is required to forward those reports to lawmakers.
The new state law calls for each report to include the name, gender and age of the person who died, the location of the death, the cause of the death and whether there is any indication a sexual assault was involved.
Prison officials are required to file follow-up reports when the official cause of death is determined, and are also to conduct a clinical mortality review in response to each death. They then report back on “correctional actions to be taken” based on the findings of that review.
However, the new law also provides that the director “shall have the discretion to withhold disclosure of the decedent’s name or any information protected from disclosure by state or federal laws.”
Krishna F. Jayaram, special assistant to Attorney General Clare Connors, said much of the information called for in the new law is being withheld because the public safety department is subject to the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, which imposes safeguards to protect patients’ private health care information.
The attorney general’s office warned lawmakers last year that state prison officials “would have to consider HIPAA issues and privacy issues in putting together its reports,” Jayaram said in a written statement. The result was the reports released to the Star-Advertiser on Thursday that include almost no information.
The reports deal with nine inmate deaths that occurred from Aug. 1 to Christmas Day. Four reports indicate the inmates died of pre-existing medical conditions, another from cardiac arrest, and one related to the OCCC assault. No cause of death is shown for the other cases.
“Under HIPAA, there’s a lot of stuff that you can’t disclose,” Jayaram said. “That’s why the report came out the way it did — because of HIPAA and the fact that the statute specifically provides for stuff that can’t be disclosed persuant to state or federal law.”
At this point, the state does not consider the name of an inmate who dies in custody to be a public record, including suicides and homicides, he said. “At this point, under HIPAA, we don’t feel we can release the names,” Jayaram said.
Policies in other states
However, a number of other states do publicly announce homicides, suicides and other inmate deaths, and routinely name the prisoners who died. Those states include Arizona, California, Oregon and Nevada.
In a sharp contract with Hawaii prison practices, corrections officials in Nevada see disclosure of inmate deaths as important enough to justify a special web page that lists the inmates who died in custody in 2019, along with the press releases that describe the circumstances of each case.
Jayaram said his office is aware other states release the names of inmates who die in custody, “and we believe it’s based on how they’re set up in terms of HIPAA.”
The HIPAA analysis depends on certain factors relating to how the prison system is structured, and “right now we feel that it is the safer path to consider PSD as a whole to be a HIPAA entity.”
More specifically, prisons in some other states are structured so that only the medical units have responsibilities under HIPAA. In other states such as Hawaii that is not clearly the case, “and therefore the entire entity is considered covered by HIPAA,” he said.
However, Hawaii officials have released the names of some inmates who died in custody in recent years, usually in cases that were suspected suicides.
For example, the department issued news releases that publicly disclosed the names of convicts Wesley Chong, who died at Kulani Correctional Facility in 2017; Christopher Horner, who died at Halawa Correctional Facility in 2016; and Andrew Sarita, who died at the Saguaro Correctional Center in Eloy, Ariz., in 2016.
Horner and Sarita were found hanging in their cells, and Chong bled to death in what an autopsy concluded was a suicide. Chong’s autopsy is a public record that was released to the Star-Advertiser by the Hawaii County Police Department.
Jayaram said he said he does not know what legal analysis prompted public safety officials to announce those inmate deaths or to publicly release their names, but Act 234 “sort of brought these issues to the forefront and now we’re taking a close look.”
“We are going to look at this closely to and try to disclose as much as we can because it is in the public interest” to disclose information about inmate deaths in custody, he said.
“There are two countervailing interests here, one is the public interest in being informed about what is happening in our correctional institutions,” Jayaram said in a written statement. “The other interest is that we have to make sure PSD does not violate HIPAA and open the state to sanctions or penalties. And we will work as quickly as we can with our client to make sure both interests are addressed properly.”
Nishihara questioned how HIPAA guidelines on patient privacy rights can apply to suicides.
“To me, what patient are we talking about? The person killed himself. He’s no longer here.”
There have been complaints the state is withholding too much information from the Act 234 reports, and “we are working with PSD on what can be done to address the HIPAA restrictions in a way that we can redact less going forward,” Jayaram said.
Toni Schwartz, spokeswoman for the department, said in a written statement that until Act 234 passed, “there was no policy on the public reporting of inmate deaths in custody.”
“Previously, PSD followed guidance that determined requested identifying information on deaths in custody could be released following media requests for confirmation of information they independently obtained through their own research and sources,” she said in a statement.
As for the death of the inmate on Christmas Day, she said the prisoner was taken to a nearby hospital for treatment of injuries, and remained there until Dec. 4. The inmate was then returned to OCCC and placed in a hospice area within the jail until his death.
The official cause of death is still pending final determination by the Medical Examiner’s office. “The inmate who allegedly caused the injuries was charged with assault and placed in administrative segregation,” and the case is being investigated and prosecuted by the state attorney general’s office, Schwartz said.