Hawaii corrections officials refuse to publicly release the names of inmates who die in the state’s network of prisons and jails, and in most cases never even publicly announce when there has been a death.
In a debate that has dragged on for years, officials with the state Department of Public Safety insist they have no choice because federal law prohibits disclosure of inmate deaths.
Legal experts and justice advocates flatly disagree, and critics of the state policy say that keeping prisoner deaths secret prevents lawmakers and the public from learning if Hawaii jails and prisons are being operated safely or humanely.
The current practice is to release almost no information about inmate fatalities at all. Last year 16 Hawaii prisoners died in state custody, but the only deaths the DPS felt compelled to announce publicly involved two inmates who died of COVID-19.
And that raises new questions as lawmakers consider a bill to require the release of more information when inmates die.
House Bill 796, which the state Department of Public Safety “strongly opposes,” would require that more information about inmate fatalities be made publicly available from death notices that the prison system is required to submit to Gov. David Ige’s office.
Heavily redacted versions of those death notices were made public for a time in 2019 and 2020, but that stopped when the Department of Public Safety began marking each death report with a bold-faced warning that sharing the reports with the public is legally prohibited.
Yet learning when and how prisoners die in custody is critically important, said Michele Deitch, a distinguished senior lecturer at the Lyndon B. Johnson School of Public Affairs and the University of Texas at Austin School of Law. Deitch specializes in correctional systems oversight and prison and jail conditions.
“To me this is just so fundamental as a way to have some transparency about what’s going on in our prison systems,” she said. “These are the most closed institutions in our society, and there is nothing more fundamental about how they’re operating than whether they are keeping the people in their custody safe and alive.”
At least some lawmakers agree, including state Rep. Matt LoPresti, who wants more information to be made public about suicides, assaults, murders and rapes in correctional facilities.
“If somebody is in state custody and they become the victim of extreme violence, it’s in the public interest to know that, because we can’t fix those kinds of problems if we don’t know about them,” he said.
“For too long, we haven’t known about those kinds of things, and people haven’t wanted to talk about those kinds of things, and it has led to, I think, a culture of looking the other way,” LoPresti said. “I don’t think that’s the right moral response.”
When asked why the department announces some deaths but not others, a spokeswoman for Public Safety replied that the federal Health Insurance Portability and Accountability Act, or HIPAA, prohibits the department from “publicly releasing individually identifiable health information.”
Therefore, corrections officials are “prevented from releasing or confirming names, or publicly discussing other information specific to inmates who died in custody without authorization by a decedent’s personal representative,” according to the written statement from the department.
Brian Black, president and executive director of the Civil Beat Law Center, described that response as “a stubborn commitment to secrecy.”
“When a person committed to the department’s care by the criminal justice system dies in its custody, there is no justification for hiding that fact,” Black said.
Under the current system, information about prison deaths sometimes leaks out of the correctional system when prison and jail staff members or inmates’ families disclose information about specific cases.
While the department does not normally announce inmate deaths, Public Safety officials will confirm deaths and provide some information if reporters or others inquire about specific cases.
As a practical matter, that means the public is never told about most deaths in state prisons and jails.
Deaths of Hawaii inmates have been shrouded in secrecy for so long that prison reformers banded together in 2019 to lobby the Legislature for a new law requiring that prison officials report the deaths of each inmate to the governor.
Those reports were to include where the prisoners died and how. But that new law, known as Act 234, ended up providing little additional information to the public.
Act 234 required prison officials to file death reports with the governor, and the governor then forwarded the reports — with almost all of the information blacked out or redacted — to state lawmakers.
When lawmakers released the heavily redacted documents to the media, the initial results were sometimes revealing.
Corrections officials later sought to block release of even the redacted reports. The Department of Public Safety began marking each report to the governor with a warning in bold letters that distribution of the reports is prohibited because they contain “HIPAA information.”
Black said the department incorrectly interpreted the HIPAA law when it blocked public release of those death reports to the governor. The state Attorney General’s Office now seems to be reconsidering that policy, and may allow the release of redacted versions of the reports.
In any event, the Legislature clearly has the power to simply specify in state law that information about inmate deaths is public — including the reports to the governor, Black said. If lawmakers do so, that will override HIPAA, he said.
Director of Public Safety Max Otani declined to be interviewed for this story. But he told lawmakers on Feb. 24 he is open to making more information about the inmate deaths public if the law allows it.
“If somebody is in state custody and they become the victim of extreme violence, it’s in the public interest to know that, because we can’t fix those kinds of problems if we don’t know about them.” — Rep. Matt LoPresti
He confirmed that if state law specifies the department can release information about inmates who have died in prison, “that kind of gets us through the HIPAA issue.”
But Otani also asked the House Judiciary and Hawaiian Affairs Committee “to identify criteria when public interest outweighs privacy, identify who legally a family member is, to allow Public Safety to withhold release if a criminal investigation is pending, and finally, allow public safety to redact reports that could harm or bring shame to the family.”
“If you can address those issues, then by all means, I’m willing to release that information,” Otani told the committee.
Otani told committee members at that same hearing that “we normally put out information in the press on a death (that is) not identifying. Based on our advice from our attorneys, we’re not identifying names, we’re giving age range, gender, facility (in which) they died, and the date the person passed.”
In fact, the department did not publicly announce any of that information this year or last year in any cases other than the nine inmate COVID-19 deaths.
A spokeswoman for the department confirmed in a written statement this week that of the 16 deaths last year, the department made only two public announcements — both press releases that were issued after inmates died from COVID-19.
Honolulu lawyer Robert Merce, who supported the 2019 bill that became Act 234, contends that inmate deaths should be publicly reported on a “routine, systematic and complete basis.”
“It’s the place where we need the most transparency with regard to everything that’s going on in the correctional field, because we can’t get behind the walls of the prison very easily, and we can’t talk to the people who are imprisoned there very easily,” he said.
As for concerns about HIPAA, Merce pointed out that other states such as Nevada routinely release the names of inmates who have died in custody along with a good deal of information about them.
Here’s an example of a redacted notice:
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