The Justice Department is failing to adequately and efficiently collect data about deaths in state prisons and local jails, with at least 990 incidents going uncounted by the federal government in fiscal year 2021 alone, according to a newly released bipartisan Senate report.
The report's findings were the focus of a hearing Tuesday of the Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations, which took the federal Bureau of Prisons and then-Director Michael Carvajal to task this summer over accusations of unsanitary and unsafe conditions at a penitentiary in Atlanta and other allegations of misconduct across the federal prison system.
Now, the conclusion of a 10-month investigation into how the Justice Department oversees the federal Death in Custody Reporting Act accuses the agency of missing death counts that are readily available on public websites and in arrest-related databases. In addition, the law requires that states and federal agencies report in-custody death information to the attorney general, who must then study how the data can help reduce such deaths and provide the results to Congress. The information was due at the end of 2016, but the Senate report says it won't be completed until 2024.
At the hearing, the subcommittee's chairman, Sen. Jon Ossoff, D-Ga., said the Justice Department's failure in more recent years is glaring. For instance, the Senate report found that from October to December 2019, the department's bureau responsible for data collection "did not capture any state prison deaths in eleven states or any local jail deaths in 12 states and the District of Columbia."
"What the United States is allowing to happen on our watch in prisons, jails and detention centers nationwide is a moral disgrace," Ossoff said.
Seventy percent of records supplied to the Justice Department in fiscal year 2021 were also missing at least one field of information related to the deaths, according to the report, which was done with assistance from the U.S. Government Accountability Office.
"DOJ's failure to implement DCRA has deprived Congress and the American public of information about who is dying in custody and why," the report says. "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."
Part of the issue is that the Justice Department had been using its Bureau of Justice Statistics to analyze the data it collected, having done so from 2001 to 2019. But beginning in late 2019, the responsibility was shifted to the Bureau of Justice Assistance.
A 2018 report by the Justice Department's inspector general warned that the Bureau of Justice Assistance's state data collection plan "may not produce the quality of data about deaths in custody necessary to achieve the intent of the law," in part because the bureau's methodology may not fully capture incidents and it "planned to collect data from state-level agencies, rather than from local agencies that may have more specific knowledge about deaths in custody."
The subcommittee's ranking member, Sen. Ron Johnson, R-Wis., said at the hearing that the change in how the data is collected has had unintended consequences.
"It's all bureaucratic B.S. if you ask me, but it happened," Johnson said, adding, "It doesn't look like the Department of Justice is particularly interested in providing that transparency now."
Congress has updated the Death in Custody Reporting Act since it was passed in 2000. To give the law more teeth, the attorney general can reduce a state's federal law enforcement funding by up to 10% if it doesn't report data each quarter outlining how many people have died in state prisons or municipal or county jails or while being arrested or en route to facilities.
In prepared testimony, Maureen Henneberg, a deputy assistant attorney general in the department's Office of Justice Programs, told the subcommittee that the agency recognizes the need for "complete and accurate data," but that "in general, most states do not have 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," she said.
The Justice Department, she added, is concerned that entire states might be unfairly penalized if they don't provide all the information, and if they lose funding, it would only cripple their ability to further collect data.
Henneberg said the Bureau of Justice Assistance is committed to improving the collection of data and offered a series of proposals to the subcommittee, including permitting the Bureau of Justice Statistics to design and implement "effective methods" for data collection and replacing the current funding penalty that would affect an entire state, instead punishing those entities within each state that fail to provide complete data.
Subcommittee officials contend the problems with the law and inconsistent data span multiple administrations.
Christine Tartaro, a distinguished professor of criminal justice at Stockton University in New Jersey, said the inability to analyze timely statistics came up when she was writing her book "Suicide and Self-Harm in Prisons and Jails" and she was befuddled by a "lack of transparency" in prison and jail mortality data.
"We can't fix what we don't know is broken," Tartaro said, "and if we don't have the data, we can't tell where the problems are."
According to the most recent Justice Department data, 4,234 people died in state and federal prisons in 2019, a 6.6% decrease from 2018. But the 143 homicides in state prisons in 2019 were the most recorded since collection began in 2000.
Tartaro added that the Covid pandemic will only complicate collecting data about deaths.
An expert on prison and jail conditions and mortality, Andrea Armstrong, a professor at Loyola University New Orleans College of Law, said the subcommittee's hearing will be an important jumping-off point in reviewing whether the Justice Department can produce accurate and timely data and figuring out where the accountability lies.
But the fact that a substantial number of in-custody deaths involve people who were being held before trial and hadn't yet been convicted also indicates the urgency of the situation, she said.
"For me, when I think about death in custody, they are often the tip of the iceberg," said Armstrong, who testified Tuesday along with witnesses whose family members died in custody in Georgia and Louisiana. "Where you have higher rates of death and where you see particular patterns in the types of deaths, that may signal larger problems at the facility as a whole."