U.S. Senate report says government failed to properly count deaths of incarcerated people

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 that 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, during which 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.

Lack of reporting

From 2000 to 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 year 2020.

Since the transfer, DOJ has not reported the data that the Bureau of Justice Assistance has collected, according to the report.

The report found 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 (the Death in Custody Reporting Act) 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,” the report noted.

In fiscal year 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 states’ public websites and 649 were arrest-related deaths disclosed in a reliable public database.

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, and that a majority of the information on deaths that occurred in custody during fiscal year 2021 was incomplete.

About 70% of the records on deaths that occurred 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.”

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.

Working to fix problems

Ossoff and Sen. Ron Johnson of Wisconsin, the top-ranking Republican on the panel, grilled Henneberg on why the Department of 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 many of the underreported death counts are from states.

“The states have no leverage to compel their local agencies to provide the data,” she said.

Additionally, she said that while there is a penalty for states that 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.”

Gretta L. Goodwin, the director of homeland security and justice at the U.S. Government Accountability Office, said a review by two investigators found that in one year, the department missed almost 1,000 deaths.

“We believe that’s an undercount,” Goodwin said.