Scrutiny grows over government oversight of prison deaths

In her last phone call with her son Matthew Loflin, Belinda L. Maley told him she was working as hard as possible to get him out of the Chatham County Detention Center in Georgia. 

“I’m doing everything I can to get you out and so I can see you,” she promised her son. 

But Loflin, who was diagnosed with cardiomyopathy, told Maley she needed to hurry. 

“I’m coughing up blood, my feet are swollen. It hurts,” he told his mother through sobs. “I’m gonna die in here.” 

Loflin, incarcerated on a nonviolent drug offense, died soon after their call. When Maley saw her son again, he was handcuffed to a hospital bed, unconscious, while she authorized ending his life support.

Maley’s experience is one of several that surfaced during a Senate hearing this week held in conjunction with the release of a bipartisan report that found problems with the Department of Justice’s (DOJ) method of reporting deaths of those in custody. Now, scrutiny is growing over federal oversight of prisons as a rash of deaths among the incarcerated grabs headlines.

On Tuesday, a Senate Homeland Security and Governmental Affairs subcommittee released a report finding that the DOJ did not count almost 1,000 deaths in prisons and jails across the country in the last fiscal year. The lapses are an apparent violation of the Deaths in Custody Reporting Act (DCRA), which was passed in 2000 and reauthorized in 2013 and requires the DOJ to collect such information.

Sen. Jon Ossoff (D-Ga.), chair of the Permanent Subcommittee on Investigations, which led the probe, criticized the DOJ during the Tuesday hearing.

“Despite a clear charge from Congress to determine who is dying in prisons and jails across the country, where they are dying and why they are dying, the Department of Justice is failing to do so,” Ossoff said. “This failure undermines efforts to address the urgent humanitarian crisis ongoing behind bars across the country.”

The report is the latest to shine a spotlight on the alarming number of deaths plaguing prisons and jails across the country.

Just last year, the Bureau of Justice Statistics released its 2018 mortality data for local jails. The bureau found 1,120 incarcerated people had died in local jails, the highest number of deaths since the agency began collecting data in 2000.

Though prison populations have remained fairly stagnant over the last 20 years, there were 44 percent more deaths in 2018 in state prisons than there were in 2001, said Wanda Bertram, communications strategist for the Prison Policy Initiative. This means the number of deaths relative to the overall state prison population has been increasing. 

But accessing that information hasn’t been easy.

“Prisons and jails have huge amounts of obscurity,” Bertram said. “They can use HIPAA and they can use their protected status as government entities to keep that information from journalists. The government data is so crucial for reporters, for independent organizations, for any members of the public who are doing investigations to hold prisons and jails accountable.”

While all categories of death have been on the rise — from suicides to homicides to intoxication — the most common cause of death for those in jail is suicide.

This month, a recent spate of suicides at Rikers Island, New York City’s prison complex, has made headlines. The prison reported its fifth suspected suicide last week, leading City Comptroller Brad Lander to tell PIX11 the situation is “not under control in any way.”

Bertram said reasons for the increased numbers of deaths across the country could be due to changes in the demographics of who’s incarcerated, such as a higher number of older people, the increased privatization of prison health care and even overcrowding.

She argued that prisons and jails have a vested interest in not sharing those numbers or causes of death. 

“These are very often lethal places where we put the most vulnerable people in society,” Bertram said. “The Deaths in Custody Reporting Act was designed to counterbalance that somewhat by requiring the DOJ to get information on deaths from facilities.”

Among the revelations from this week’s Senate report, which included an analysis from the Government Accountability Office, was that the DOJ hasn’t been fully compliant with the DCRA in the last few years, leaving many to wonder just how many people are dying in custody — and how. 

Regarding the information the DOJ did report, 70 percent of records were missing at least one DCRA-required data field and about 40 percent of the records did not include a description of the circumstances surrounding the death. 

“This isn’t about statistics,” Ossoff said. “This isn’t about data. This is about human lives, people who are preventively dying from civil rights being violated. I swore an oath to the Constitution to defend the rights of every American no matter whether they’re in my state or another state, no matter whether they’re incarcerated or free. There is an urgent humanitarian crisis unfolding inside prisons and jails across the country. People are dying and suffering, and we have an urgent obligation to address this crisis.”

For Andrea Armstrong, a law professor at Loyola University New Orleans, the data pulled from the DCRA is vital to identifying patterns of conditions within facilities. For instance, she said, data on suicide can show there are “deep differences” between where these deaths occur as opposed to others.

This could lead to scrutiny of staffing numbers in areas of segregation, why people are in solitary confinement and for what types of offenses and for how long.

“We also want to think about, what are the mental health protocols?” added Armstrong. “Are they doing the required visual checks? Are they doing the suicide watch observations that are required? In that way, [data would] be the tip of the iceberg for understanding what is happening in that facility and their adherence to best practices.”

She said that as deaths in custody continue rising, the trauma compounds. 

“We have large numbers of members of our community who work in these facilities who witness these traumatic incidents, because that is their employment,” said Armstrong. “Other incarcerated people often witness these deaths, they are the ones to sound the alarm, who bang on the steel door to alert somebody that the person next to them or in their cell is also dead.”

The DOJ testified this week that it was the 2013 reauthorization that left room for these reporting gaps.

After the 2013 reauthorization, the DCRA provided the authority for the DOJ to impose a 10 percent penalty on grant funding on states that do not comply with reporting requirements, said Maureen A. Henneberg, deputy assistant attorney general for operations and management at the Office of Justice Programs with the DOJ.  

Now, she said, states no longer have incentive to compel local agencies to coordinate the necessary data. 

“If a state is reporting everything that they are receiving from local agencies, and it is incomplete, they would potentially be found in noncompliance and their state funding would be cut,” said Henneberg. 

The DOJ is now asking Congress to eliminate the requirement for centralized state reporting, which would allow the department to collect information directly from state and local agencies. 

The agency also proposed eliminating the grant penalty that would affect an entire state with a narrower requirement and asked Congress to authorize the DOJ to issue additional grants for training or technical assistance to states.

Bertram, of the Prison Policy Initiative, said she hopes the government will take an “active interest” in people behind bars and changes how it holds state and local jails accountable for these deaths. But she added she doesn’t have high expectations.

“The way that states neglected people in prison during the pandemic, the way extremely vulnerable people like pregnant women have been treated in prisons and in jail, and people who’ve been sexually assaulted have been ignored … I just don’t see a lot of progress coming from this,” she said. “But I would challenge the legislators who are behind this initiative to follow it through. Make sure that there is some meaningful change.”