by Kevin Dayton, Honolulu Civil Beat

A jail prisoner who admitted to the fatal beating of another prisoner in 2019 has been acquitted of murder, concluding a case that triggered scrutiny of the state’s practice of withholding information when prisoners die in custody.

Judge Rowena Somerville on Wednesday cited mental evaluations of Payton Nathaniel Hough that found he was mentally ill and not legally responsible for his actions when he attacked 56-year-old Jacob Russell on Nov. 19, 2019.

Somerville found that Hough stomped on Russell’s head and neck during the attack, and Russell fell into a coma before dying on Christmas morning that year. Family members have said Russell also had a long history of mental illness.

The case attracted attention last year in part because corrections officials did not publicly announce the death when it happened. Both men were locked up in the Oahu Community Correctional Center at the time of the attack.

Prison officials reported Russell’s death to the governor as required by a 2019 law, but no information about the murder was made public until state officials released a dozen death reports in response to a media request.

The death reports must be filed to comply with a law passed in 2019 known as Act 234. That law requires that prison officials disclose the name of each inmate who dies, along with other information such as the cause of death, to the governor and lawmakers within 48 hours of each fatality.

But all of the reports that have been released to the public to date—including the report in Russell’s case—are so thoroughly redacted they contain almost no information. The state withheld Russell’s name and the names of all of the other deceased inmates. It was Russell’s family that later identified him as the victim.

After staff in the House speaker’s office released redacted reports on Russell and other fatalities last year, the death reporting forms were amended to warn state employees that public release of even redacted versions of the documents is legally prohibited.

Hawaii prison officials later agreed to release Act 234 death reports upon request, but the department continues to black out the names and ages of each inmate along with the date of death. Deleting the names and dates of death generally blocks efforts to obtain additional public records, including autopsies that would disclose the cause of death.

Wookie Kim, legal director of the ACLU of Hawaii, said the Hawaii correctional system historically has been a “black box,” a concern because the ACLU considers conditions inside state jails and prisons to be inhumane.

“We absolutely need more transparency around what happens inside (the department), and that transparency is especially important when it comes to the death of someone who is incarcerated,” he said.

“Put simply, when someone inside dies, the public deserves to know the circumstances behind the death,” Kim said. “Why is that? It’s because the public and the community and the oversight commission and the Legislature—whoever it may be—can hold DPS accountable for shortcomings.”

If prisoners are dying of COVID-19, lawmakers and the public can put pressure on the department to make changes. If prisoners are being murdered or committing suicide, the public can demand other fixes to address those problems, Kim said.

State Prison Officials Remain Steadfast

But the Department of Public Safety has been moving in the opposite direction.

In recent months the department ended its long-standing practice of identifying prisoners who die in custody when members of the media inquire about specific fatalities.

Corrections officials now say they must withhold the names of all prisoners who die in custody to comply with patient privacy mandates in the federal Health Insurance Portability and Affordability Act, or HIPAA. That law was passed by Congress in 1996.

Laurie Nadamoto, litigation coordination officer for the department, said in a written statement earlier this year that the names of the prisoners who die in custody must be deleted from Act 234 reports because “HIPAA restrictions prevent the Department of Public Safety from disclosing individually identifiable health information.”

The department has issued news releases noting nine deaths of Hawaii prisoners from COVID-19 in 2020 and this year, but does not routinely announce prisoner deaths. The department did not identify the prisoners who died from the coronavirus.

Brian Black, executive director of The Civil Beat Law Center for the Public Interest, said the claim that HIPAA requires the department to withhold the identities of prisoners who die in custody is wrong.

“This secrecy has nothing to do with the deceased’s privacy,” Black said in an email. “It is only the department’s effort to avoid public scrutiny and accountability by making it more difficult to understand what is happening inside our prisons.”

In fact, other states that are subject to the same federal HIPAA law have adopted dramatically different policies dealing with the release of information when prisoners die.

Correctional systems in Arizona, Nevada and California all publicly announce prisoner deaths and each of those states names the prisoners who die.

Kim also questioned the legal basis for withholding the names of prisoners who die in custody, citing a May 15 opinion from South Carolina Solicitor General Robert Cook and Assistant Attorney General Cydney Milling.

That opinion found the prison system there is subject to HIPAA requirements, but also concluded the federal law does not block the release of the names of prisoners who die in custody. Release of those names is required by South Carolina’s open records law.

It was the department’s silence following the murder of Jacob Russell that drew attention to Hawaii’s status as an outlier in handling information on prisoner deaths in custody.

Russell was arrested May 12, 2019, for stealing a vehicle. He was released, and was returned to OCCC two months later in connection with two theft charges.

He pleaded no contest to the auto theft and other theft charges on Aug. 22, signing his name as “YAHWEH” on the court documents to enter his plea in the case. Yahweh is a Hebrew name for God used in the Bible.

Russell’s lawyer asked that Russell undergo a mental evaluation before sentencing because Russell apparently lacked the capacity to understand the proceedings.

Hough attacked Russell at OCCC on Nov. 19, 2019, and he died in a hospice facility inside the Kalihi jail on Dec. 25.

At his court hearing on Wednesday, Hough told the judge he assaulted Russell, but “it was what would be explained as a car being driven, but no one was behind the wheel.”

During a bench trial in the case, Somerville acquitted Hough of second-degree murder, ruling that at the time of the attack he suffered from a mental disorder.

She cited letters from a court-appointed psychiatrist who found Hough was not criminally responsible for his actions at the time of the attack, and another from a psychologist who said Hough was “psychotic and delusional” when he beat Russell.

The psychiatrist and two psychologists who examined Hough found he suffered from an array of mental conditions including schizophrenia, bipolar disorder, anti-social personality disorder, a developmental disability, and alcohol and marijuana use disorders.

Somerville ordered him committed to the Department of Health for treatment at Hawaii State Hospital. 

This article was published Aug. 16, 2021, by Honolulu Civil Beat (civilbeat.org); reprinted with permission. Copyright, 2021 Civil Beat.

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