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‘You Have Utterly Failed.’ The Department of Justice Undercounted Nearly 1,000 Deaths in U.S. Prisons

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Twitter whistleblower testifies before the Senate Judiciary Committee

Twitter whistleblower testifies before the Senate Judiciary Committee

US Senator John Osoff (D-GA) during a Senate Judiciary Committee hearing on Capitol Hill, September 13, 2022 in Washington, DC. Credit – Kevin Deitch – Getty Images

The Justice Department has recorded nearly 1,000 deaths in jails, prisons or during arrests over the past fiscal year, according to the results of a nearly year-long bipartisan investigation.

The 10-month investigation, set out in a report released on September 20 jointly by the Senate Permanent Subcommittee on Investigations and the Office of Government Accountability, focused on whether the DOJ complied with the Death in Custody Reporting Act (DCRA). 2013. The DCRA requests the department to collect data from states on deaths in prisons and prisons and to submit a report to Congress that analyzes that data to suggest solutions on how to reduce these deaths. The investigation found that the Department of Justice erred in the deaths of 990 people in custody in fiscal year 2021, that data preservation by the Department of Justice had been troubled since 2016, and that the report to be submitted to Congress would not be completed until 2024 — eight years after its due date.

In addition, the investigation found that much of the data collected by the Department of Justice was incomplete. 70% of the data the Department of Justice has 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. After a Senate hearing on the issue on Tuesday, subcommittee chairman Senator John Ossoff, a Democrat from Georgia, did not say whether the Department of Justice would face consequences for not complying with the law. He told TIME that “the first step is to pursue the facts and the truth. A hearing like this is part of the accountability process.”

“We believe that collecting data on deaths in custody is a noble and necessary step toward a transparent and legitimate justice system,” Maureen Heinberg, the Department of Justice official who oversees accounting for deaths in custody, told senators at the hearing. “As I know this commission appreciates, it is a major task to gather this information from 56 states and territories, who in turn rely on reports from thousands of local jails and prisons and law enforcement agencies. But we firmly believe it is worth the effort.” In 2020, the most recent data available from the Department of Justice, approximately 1.5 million people were imprisoned in state and local facilities in the United States.

“We’re talking about a controllable amount of information here,” Senator Ron Johnson, a Republican from Wisconsin, told Henneberg. “I totally failed. I mean, literally, I totally failed.”

Family members of two men who died in prisons in Louisiana and Georgia also testified. Usoff played a clip of a phone call between Belinda Malley and her son, Matthew Loughlin, who died in Chatham County Detention Center in Georgia in 2014 of heart failure. In the clip, Loughlin can be heard telling his mother, “I’ve been coughing up blood and my feet are swollen. It hurts, Mom… I’m going to die here.” Mali, one of the witnesses at the hearing, was visibly shaken during the duration of the clip.

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“I’ve lost all my voicemails from him, so the shock of hearing his voice again, in the worst possible way, is just too much,” Malley said.

Read more: Inside the battle to change Baltimore police one year after Freddie Gray’s death

The Department of Justice says the gaps have been caused by changes to the reporting process over the past decade. The DCRA was first enacted in 2000 and later reauthorized in 2013 with additional provisions. The Bureau of Justice Statistics (BSJ) was previously tasked with compiling this data, and has done so successfully in publicly released reports. But the most recent iteration of the DCRA system has tied some grant funding to states with their compliance in providing complete data on deaths in custody to the Department of Justice. At the hearing, Heinberg told senators that linking data collection to grant funding caused two problems: it discouraged states from providing complete data so they wouldn’t risk losing state funding, and because the BJS, the impartial data-collection arm of the Department of Justice, could not participate In a sanctioning program, the Department of Justice had to shift data collection to the Bureau of Justice Assistance (BJA) in 2016. The investigation found that this transition from one data-collection agency to another is where the Department of Justice dropped appropriate data collection on deaths in custody.

“The current process deserves a reassessment,” Henberg said. As a federal statistical agency, BJS is prohibited from using its data for any purpose other than statistics or research. Although the 2013 DCRA was well-intentioned, it had unintended negative consequences.”

Johnson acknowledged that both Congress and the bureaucracy could play a role in creating a flawed data collection process, but said those problems could have been ironed out if the two data collectors had simply coordinated the effort. Usoff added that there was early evidence that the FBI was not properly collecting its data, but that the Department of Justice failed to do anything about it.

“[DOJ is] Ussouf told reporters after the meeting. “Because we did this investigation, because we were highlighting this failure… they say now, eight years after this law was enacted, they can’t successfully implement it.”

Before the hearing ended, Vanessa Fano, whose brother Jonathan Fano committed suicide in Louisiana’s East Baton Rouge Parish prison in 2017, lamented the trust her family placed in the system. “We were constantly told to do things a certain way and things were going right,” Fano said. “Had information been revealed about how terrible the conditions at that facility were and how few actually received adequate care, we would have insisted on a different conclusion.”

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

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