People incarcerated in U.S. prisons, jails, and detention centers are dying without being recorded in the national tally, according to a new bipartisan Senate report that documented an undercount of nearly 1,000 in-custody deaths in 2021 alone.
On Tuesday, the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations made this issue the subject of a hearing. Following a 10-month bipartisan investigation, the report found a need for more and better data under the Death in Custody Reporting Act (DCRA). The law, which was passed in 2000 and reauthorized in 2014, requires that states and federal agencies report data on in-custody deaths to the attorney general, who must provide that information to Congress.
“Americans are needlessly dying, and are being killed, while in the custody of their own government,” said Sen. Jon Ossoff, D‑Ga., the subcommittee’s chairman, adding, “The crisis in America’s prisons, jails, and detention centers is ongoing and unconscionable.”
The panel, led by Ossoff and ranking member Sen. Ron Johnson, R‑Wis., heard from Professor Andrea Armstrong of Loyola University New Orleans College of Law, Gretta Goodwin of the Government Accountability Office, and Deputy Assistant Attorney General Maureen Henneberg of the Justice Department’s Office of Justice Programs, as well as from people whose loved ones died preventable deaths while in custody.
Here are four takeaways from the hearing:
#1 Prison conditions in the U.S. are often inhumane, but hidden from sight.
Too many incarcerated people in American jails and prisons are denied proper nutrition, hygiene, and medical care. Detainees endure months of lockdowns with limited access to the outdoors or basic services. Their cells are infested with rats and roaches. Some federal inmates kill themselves while staff neglects basic suicide prevention and wellness practices.
Belinda Maley, whose son Matthew Lofflin died in 2014 of cardiomyopathy while in custody at the Chatham County Detention Center in Georgia, testified that her son did not receive adequate care from the for-profit facility’s medical provider.
“Matt’s death highlights the importance of the Death in Custody Reporting Act, and the need to count all deaths of people in our nation’s jails and prisons,” Maley said. “Such data is a vital part of oversight of America’s criminal legal system.”
#2 Transparency on deaths in custody is key to increasing safety within prisons.
Without this information, policymakers, journalists, families, and the public don’t know why and how people die behind bars. Facility-level information (such as population), individual-level information (such trial status, location of death, incidents leading to death, and pre-existing conditions), and specific illnesses for medical causes of death are critical to forming a better understanding of the conditions in facilities where deaths are occuring.
Professor Andrea Armstrong works with law students each year to retrieve public records and document in-custody deaths in Louisiana, making this data publicly available at the Incarceration Transparency website with support from Arnold Ventures. One purpose of the project is to identify the most troubled facilities in the state.
“Increasing public transparency on deaths in custody is a critical step toward ultimately reducing deaths in custody,” Armstrong said.
Such data guide the interventions that facilities need in order to prevent in-custody deaths. This may include updating policies on solitary confinement, reducing violence inside, providing improved medical and mental health care, and training staff to respond to suicide threats.
#3 The federal government is unique in its power and capacity to collect information on in-custody deaths.
The Justice Department must be responsible for tracking and analyzing deaths in custody, witnesses agreed. It’s the only entity with the reach to collect information from thousands of facilities across the country that otherwise report only to themselves.
“The current process deserves to be reevaluated,” Henneberg acknowledged. She discussed the department’s efforts to collect more comprehensive data directly from agencies and open sources. In particular, she noted that, after the 2014 reauthorization of DCRA, state funding through the department is tied to reporting compliance. This presents a challenge because the department is hesitant to penalize entire states for the non-compliance of certain jurisdictions. She proposed that funding-based penalties be restricted to jurisdictions that don’t comply with reporting requirements, instead of entire states.
A further challenge is that most states lack laws requiring local agencies to report deaths in custody to state governments. “Without such laws, state governments cannot compel local governmental agencies to report to them,” Henneberg said.
Armstrong proposed measures to improve data collection, including amending DCRA to require the Justice Department to report on additional details, require all states to submit data from all facilities, create a congressional committee to hold the Justice Department accountable for implementing DCRA, and impose sanctions on facilities that fail to share information about in-custody deaths. She also recommended that Congress enact a new law to make litigation against detention facilities easier, incentivizing them to reduce deaths in custody.
#4 There is bipartisan support for improving data collection on deaths in custody.
Sens. Ossoff and Johnson agreed that deaths in prisons, jails, and detention centers are a civil rights issue. Both senators highlighted that more rigorous congressional oversight is necessary to gather information on this problem and reduce preventable deaths. “This is not a political or partisan issue,” Ossoff said.
The chair and ranking member of the subcommittee committed to taking congressional action that will improve DCRA reporting. “If the department has concluded in 2022, eight years after this law was reauthorized, that it is incapable of successfully implementing [DCRA],” Ossoff said, “I am surely willing to work with them to help fix that.”