States that receive federal funding are required to report prison and jail deaths to the U.S. Department of Justice (Darrin Klimek/Getty Images).
WASHINGTON — The Department of Justice did not properly count nearly 1,000 deaths of incarcerated people in jails and prisons, according to a bipartisan report released Tuesday by a U.S. Senate Homeland Security and Governmental Affairs subcommittee.
The 10-month investigation by the U.S. Senate Permanent Subcommittee on Investigations, chaired by Georgia Sen. Jon Ossoff, found that DOJ failed to enforce the Death in Custody Reporting Act of 2013, which requires states that receive federal funding to report prison and jail deaths to the agency.
“What the United States is allowing to happen on our watch in prisons, jails and detention centers nationwide is a moral disgrace,” Ossoff, a Democrat, said in his opening statement.
States who fail to follow the law can lose up to 10% of their funding for state and local law enforcement agencies under the Edward Byrne Justice Assistance Grant Program.
“These failures were preventable,” according to the report. “DOJ must act quickly to remedy the outstanding implementation failures, and Congress should continue to monitor DOJ’s implementation efforts.”
The Senate investigations panel held a hearing Tuesday afternoon following the release of the report, where two witnesses whose family members died in custody in Georgia and Louisiana also testified. Both of the deaths were of people who were pre-trial, which means they had not yet been convicted of a crime.
The Department of Justice did not comment on the subcommittee’s report, but pointed to the testimony of Maureen Henneberg, the deputy assistant attorney general for operations and management in the Department of Justice’s Office of Justice Programs, who testified during Tuesday’s hearing.
Lack of reporting
From 2000-2019, the Bureau of Justice Statistics collected and made public information about deaths in custody that was provided to DOJ, and then the agency would inform Congress of its data. But DOJ then transferred that task to its Bureau of Justice Assistance, which began collecting data in fiscal 2020.
Since the transfer, DOJ has not reported the data that BJA has collected, according to the report.
The subcommittee noted in its report that the agency was not fully cooperating with the panel’s investigation and “DOJ’s resistance to bipartisan Congressional oversight impeded Congress’ ability to understand whether DCRA 2013 had been properly implemented, delaying potential reforms that could restore the integrity of this critical program.”
“This information is critical to improve transparency in prisons and jails, identifying trends in custodial deaths that may warrant corrective action—such as failure to provide adequate medical care, mental health services, or safeguard prisoners from violence—and identifying specific facilities with outlying death rates,” according to the report.
In fiscal 2021, the report found that DOJ “failed to identify at least 990 prison and arrest related deaths; and 70% of the data DOJ collected was incomplete.” Of those deaths, 341 were prison deaths disclosed on the states’ public websites and 649 were arrest-related deaths disclosed in a reliable, public database, according to the report.
The report found that the Justice Department did not properly manage the data collection transfer from the Bureau of Justice Statistics to the Bureau of Justice Assistance.
“BJA’s failure to properly collect and report on custodial death data stands in marked contrast to BJS’s successful efforts to do these same things for 20 years,” according to the report.
The report also found that for fiscal 2021, a majority of the death in custody information from BJA was incomplete.
About 70% of the records on death in custody were missing at least one data field as required by the reporting law, and about 40% of the “records did not include a description of the circumstances surrounding the death.”
Louisiana and Georgia witnesses
One of the witnesses who testified before the Senate on Tuesday, Vanessa Fano, is the sister of Jonathan Fano, who died by suicide in the East Baton Rouge Parish Prison in Louisiana. Her brother was in pre-trial and had been waiting for a trial for more than 10 weeks.
Fano said her brother had several mental health problems such as bipolar disorder and depression. She said when he harmed himself, he was placed in solitary confinement.
“So many other people have died in the same jail under the same conditions,” she said.
The other witness, Belinda L. Maley, is the mother of Matthew Loflin, who died in the Chatham County Detention Center in Georgia. Her son was also waiting for his trial, and had developed cardiomyopathy while in custody, a condition his mother said that he developed because of his struggle with drug addiction.
“The next time I got to see Mathew, he had already suffered brain injury after being resuscitated three times by the jail staff,” she told senators. “My last visit with him was to take him off life support, where he was still handcuffed to a bed.”
Maley said because her son’s condition was left untreated, he “died a slow painful death over the course of weeks.”
The top Republican on the panel, Sen. Ron Johnson of Wisconsin, asked both witnesses how often they were allowed to see their loved ones.
Maley said she only got to see her 32-year-old son once within the span of 2 ½ months before he died.
“He was my heart,” she said of her son. “I’m lost without him.”
Fano said she and her family, who were based in Los Angeles, tried to call repeatedly, but were told her brother did not want to speak with them. She said they only received one letter from him, where he told them he wanted to talk to them, but was not allowed to do so.
“These people died without even having their cases heard at trial,” Sen. Alex Padilla, a California Democrat, said. “Pre-trial should never be a de facto death sentence.”
Additionally, Andrea Armstrong, a professor of law at Loyola University New Orleans College of Law who studies prison and jail conditions, said that making available data on prison and jail deaths can help prompt reviews of staffing, discipline and mental health protocols.
“Deaths in custody may signal broader challenges in a facility,” she said.
Armstrong said she and her students submit public records requests each year to Louisiana jails and prisons to collect death data. She said 43% of all suicides in Louisiana jails occurred in solitary confinement, and that 14% of all deaths in Louisiana facilities were of people waiting for their trials.
Ossoff asked her how deaths in custody can indicate a certain problem in a facility.
Armstrong said if a jail or prison has a high number of suicides, data can help investigators notice patters.
“Deaths in that way can be the tip of the iceberg on what is happening in that facility,” she said.
Working to fix problems
Senators also questioned Henneberg, of DOJ, and Gretta L. Goodwin, the director of homeland security and justice at the U.S. Government Accountability Office.
Ossoff and Johnson grilled Henneberg on why Justice has not fixed its data collection process.
“You’ve utterly failed,” Johnson said. “This isn’t that hard.”
Henneberg said the department is working to fix the issues, and said many of the underreported death counts are from the states.
“The states have no leverage to compel their local agencies to provide the data,” she said.
Ossoff said that the agency that was originally collecting the data, Bureau of Justice Statistics, warned the department that the Bureau of Justice Assistance was not adequately collecting data.
“Was that not concerning?” Ossoff asked her.
Henneberg said it was, and again said the states were having difficulties getting accurate information to report. She said that while there is a penalty for states who do not accurately report deaths in custody under the Edward Byrne Justice Assistance Grant Program, the department is concerned that “the penalty may have unintended, negative consequences and has not implemented the penalty.”
Johnson asked Henneberg how many staffers work to collect data, which she said she did not know.
The other witness, Goodwin, said she had two GAO investigators do a quick and thorough report and found in one year the department missed almost 1,000 deaths.
“We believe that’s an undercount,” Goodwin said.
This hearing also builds upon a July hearing where witnesses detailed years of abuse at U.S. Penitentiary Atlanta, where inmates were routinely denied nutrition, clean drinking water, hygiene products and proper medical care.
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