By David M. Greenwald
Washington, DC – A US Senate Subcommittee released a report Tuesday morning, “Uncounted Deaths in America’s Prisons & Jails: How the Department of Justice Failed to Implement the Death in Custody Reporting Act.” The committee was chaired by Georgia Senator Jon Offsoff (Democrat) and Wisconsin Senator Ron Johnson (Republican) was the ranking member.
Senator Ossoff and the Senate Permanent Subcommittee on Investigations conducted a 10-month bipartisan investigation into deaths in America’s prisons and jails.
According to the report, of the approximately 1.5 million people incarcerated at various state and local correctional facilities, “thousands die each year.”
The Death in Custody Reporting Act of 2013—reauthorizing a law that first passed in 2000—requires states that accept certain federal funding report to the Department of Justice about who is dying in prisons and jails.
However, “Over the course of a ten-month bipartisan investigation into DOJ’s implementation of the law, the Permanent Subcommittee on Investigations found that DOJ is failing to effectively implement DCRA 2013. DOJ’s failed implementation of DCRA 2013 undermined the effective, comprehensive, and accurate collection of custodial death data.”
At tomorrow’s hearing I will release the findings from our 10-month bipartisan investigation of deaths in America’s prisons and jails. pic.twitter.com/Js3MPRfVTJ
— Jon Ossoff (@ossoff) September 19, 2022
As a result, “This failure in turn undermined transparency and Congressional oversight of deaths in custody.”
In 2021 alone, the DOJ failed “failed to identify at least 990 prison and arrest related deaths; and 70% of the data DOJ collected was incomplete. DOJ failed to implement effective data collection methodology, despite internal warnings from the DOJ Office of the Inspector General and the Bureau of Justice Statistics.”
The report concluded, “DOJ’s failures were preventable.”
To better understand the extent and scope of the problem of uncounted deaths in custody, as part of its investigation, PSI worked with GAO (Government Accountability Office) to review DOJ’s death in custody data for Fiscal Year 2021.
As noted, the GAO review found nearly 1,000 deaths in American jails and prisons in FY2021 alone that were uncounted by DOJ in their collection of state’s data.
“At least 341 missing and potentially reportable prison deaths were disclosed on states’ public websites but were not collected by BJA (DOJ’s Bureau of Justice and Statistics), the report found. “At least 649 missing arrest deaths were reported in a public database maintained by a non-profit civil rights organization, but were not collected by BJA.”
PSI uncovered multiple problems within DOJ, spanning many years and multiple Administratio ns, that led to these failures.
“DOJ successfully collected and reported this data between 2000-2019, with DOJ disclosing it collected data from an average of 98% of all local jails and 100% of all state prisons during that time period and reported it to the public,” according to PSI’s report.
However, “DOJ has failed to report any death in custody data since 2019… DOJ will not even complete previously required reporting to Congress before September 2024 — at least eight years past due.”
Additionally, “PSI’s investigation found that not only has DOJ failed to properly collect data, but also the vast majority of death in custody information they have collected from the states in recent years has been incomplete.”
Specifically, in PSI and GAO’s review of DOJ’s FY2021 data, they found that 70% of records on deaths in custody were missing at least one DCRA 2013-required data field. Approximately 40% of the records did not include a description of the circumstances surrounding the death. 32% of the records were missing more than one DCRA 2013-required data field.
The report further details 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 explains, “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.”
Nearly One Thousand Missing Deaths. As part of its review for PSI, GAO identified at least 990 deaths that were potentially reportable to BJA in FY 2021, but that BJA had not counted. Of the 990 uncounted deaths, 341 were prison deaths disclosed on states’ public websites and 649 were arrest-related deaths disclosed in a reliable, public database. GAO determined that BJA’s collection was missing information that is already in the public domain.
Incomplete Data. GAO found that for FY 2021, the vast majority of death in custody information that BJA collected from the states was incomplete. Specifically, 70% of records on deaths in custody were missing at least one DCRA 2013-required data field; approximately 40% of the records did not include a description of the circumstances surrounding the death; and 32% of the records were missing more than one DCRA 2013-required data field.
Failure to Report. DCRA 2013 required DOJ to report to Congress by December 18, 2016 on how the data it collected can be used “to reduce the number of such deaths” and to “examine the relationship, if any, between the number of such deaths and the actions of management of such jails, prisons, and other specified facilities relating to such deaths.” DOJ does not expect to complete these reporting requirements before September 2024—eight years late. DOJ has not yet evaluated whether the data that it had collected in FY 2020 or FY 2021 is of sufficient quality to be used in the DCRA 2013-required analysis and report to Congress.
Failed Transition. DOJ failed to properly manage the transition of DCRA 2013 data collection from BJS to BJA. 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. To the extent that DOJ sought to assign DCRA 2013 responsibilities to BJA, it should have done more to equip it with the resources and strategies it already knew to be successful so that DOJ could meet its statutory obligations.
The report concludes: “DOJ’s failure to implement DCRA has deprived Congress and the American public of information about who is dying in custody and why. 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.
“DOJ’s failure to implement this law and to continue to voluntarily publish this information is a missed opportunity to prevent avoidable deaths.”