Justice Department Undercounted Nearly 1,000 Deaths in Custody

TThe Justice Department had nearly 1000 deaths during last year’s fiscal year in jails, prisons, and arrests according to a close-to-year-long, bipartisan investigation.

The 10-month investigation, outlined in a Sept. 20 report released jointly by the Senate’s Permanent Subcommittee on Investigations and the Government Accountability Office, centered on whether the Justice Department (DOJ) has complied with the Death in Custody Reporting Act (DCRA) of 2013. DCRA requires that the Justice Department (DOJ) collects data from each state on death in custody and then submits to Congress a detailed report that analyses that information to suggest ways to decrease such deaths. The investigation found that DOJ missed the deaths in custody of 990 people in fiscal year 2021, that data-keeping by the DOJ has been disorderly since 2016, and that the report it is required to produce to Congress will not be complete until 2024—eight years past its due date.

A lot of the DOJ data was not complete, according to the investigation. 70% of the data that DOJ does have is missing at least one required set of information—race, ethnicity, age, or gender, for example— and 40% is missing a description of the circumstances of the victim’s death. Senator Jon Ossoff (a Georgia Democrat) chaired the subcommittee that heard the Senate hear the issue on Tuesday. He did not specify whether DOJ will face any consequences for failing to comply with the law. He told TIME that “step one is pursuit of the facts and of the truth. A hearing like this is part of the process of accountability.”

“We believe that gathering data on deaths in custody is a noble and necessary step towards a transparent and legitimate justice system,” Maureen Henneberg, the DOJ official leading the accounting of deaths in custody, told Senators at the hearing. “As I know this committee appreciates, it is a major undertaking to gather this information from 56 states and territories, who in turn rely on reports from thousands of prisons, local jails, and law enforcement agencies. But we firmly believe that it is well worth the effort.” In 2020, the most recent data available by the DOJ, approximately 1.5 million people were incarcerated in state and local facilities in the U.S.

“We’re talking about a pretty manageable amount information here,” Sen. Ron Johnson, a Republican from Wisconsin, said to Henneberg. “You have utterly failed. I mean, literally, you’ve utterly failed.”

Two men died in Louisiana jails and Georgia prisons, respectively. Their families also gave testimony. Ossoff presented a clip of Belinda Maley calling Matthew Loflin’s mother, Matthew Loflin. Matthew Loflin was killed in Chatham County Detention Center (Georgia) in heart failure on April 14, 2014. In the clip, Loflin can be heard telling his mother, “I’ve been coughing up blood and my feet are swollen. It hurts, Mom… I’m gonna die in here.” Maley, a witnesses at the hearing, was visibly shaken through the duration of the clip.

“I lost all my voicemails from him,” Maley said, “so the shock of listening to his voice again, in the worst way possible, is just too much.”

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DOJ asserts that these gaps are due to changes made in reporting procedures over the past decade. DCRA was passed for the first time in 2000. It was later renewed with new provisions in 2013. The Bureau of Justice Statistics was previously charged with compiling these data and produced several reports which were available to the general public. The new DCRA linked certain grants for state funding to compliance with providing full data about deaths in custody to DOJ. Henneberg informed the Senators at the hearing that the connection between data collection and grant funds caused two problems. First, it discouraged states from providing complete data in order to not lose state funding. Second, BJS, which is a neutral data collector arm of the DOJ could not participate in programs that imposed sanctions, so the DOJ had no choice but to shift data collection to Bureau of Justice Assistance in 2016. The investigation revealed that the DOJ was not collecting proper information on the deaths of those in custody during this transition.

“The current process deserves to be reevaluated,” Henneberg said. “As a federal statistics agency, BJS is prohibited from using its data for any purpose other than statistics or research. Though DCRA of 2013 was well intentioned, it had unintended negative consequences.”

Johnson admitted that Congress and bureaucracy can play roles in creating flawed data collection processes, but stated that they could have been resolved if both data-collecting arms worked together. Ossoff said that although there were early signs that the BJA had not been properly collecting its data correctly, DOJ didn’t do much about it.

“[DOJ is] failing to fulfill their lawful obligation,” Ossoff told reporters after the hearing. “Because we conducted this investigation, because we have been shining a light on this failure… they’re now saying, eight years after that law was enacted, that they cannot successfully implement it.”

Vanessa Fano was the brother of Jonathan Fano and died at East Baton Rouge Parish Prison in Louisiana. She lamented her family’s trust in this system. “Consistently we were told to do things a certain way and that things were going correctly,” Fano said. “Had we been disclosed the information of how horrendous the conditions are in that facility and how few actually receive adequate care, we would have insisted upon a different outcome.”

Andrea Armstrong, a professor of law at Loyola University, who researches and maintains a database of deaths in custody in Louisiana, told Senators that stories like Fano’s and Maley’s are why the federal government needs to have accurate data. “Deaths in custody may signal broader challenges in a facility,” she said. “It is impossible to fix what is invisible.”

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