United States Senate
PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
Committee on Homeland Security and Governmental Affairs
Jon Ossoff, Chair
Ron Johnson, Ranking Member

UNCOUNTED DEATHS IN AMERICA’S PRISONS & JAILS:
HOW THE DEPARTMENT OF JUSTICE FAILED
TO IMPLEMENT
THE DEATH IN CUSTODY REPORTING ACT
STAFF REPORT
PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
UNITED STATES SENATE

RELEASED IN CONJUNCTION WITH THE
PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
SEPTEMBER 20, 2022 HEARING

SENATOR JON OSSOFF
Chair
SENATOR RON JOHNSON
Ranking Minority Member
PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
DOUGLAS S. PASTERNAK
Staff Director
CAITLIN WARNER
Chief Counsel
MEERAN AHN, DANIEL M. EISENBERG, and LI YU
Senior Counsels
TAYLOR BURNETT
Counsel
DENNIS HEINRICH and ZACHARY REINSTEIN
Detailees
KARAZ AXAM, DANIELLE DAVIS, ISMAEL FAROOQUI, SAM KREVLIN,
MALLORY LEOPOLD NEEDLE, MADELYN PHINNEY,
AVERY SALINGER, NAILA SCOTT, & THOMAS WEAVER
Law Clerks
BRIAN DOWNEY
Staff Director to the Minority
SCOTT WITTMANN
Deputy Staff Director to the Minority
KYLE BROSNAN
Chief Counsel to the Minority
PATRICK HARTOBEY
Senior Counsel to the Minority
MAURA BRENNAN, CHRISTOPHER ECKHARDT JR., VICTORIA GARRASTACHO,
SLOAN MCDONAGH, JAMES PRIEST, & DAVID SAMBERG
Law Clerks to the Minority
KATE KIELCESKI
Subcommittee Clerk

Table of Contents
Executive Summary ...................................................................................................................... 1
Figure 1: Death in Custody Reporting Act Timeline .............................................................. 7
I.

The Death in Custody Reporting Act .................................................................................. 8
a.

History................................................................................................................................. 8

b.

DOJ’s Flawed FY 2020 Collection ................................................................................... 12

c.

DOJ’s Flawed FY 2021 Collection ................................................................................... 13

II. DOJ’s Failure to Implement DCRA 2013 ......................................................................... 14
a.

DOJ’s Statutorily-Prescribed Reporting Will Be at Least Eight Years Late .................... 15

b.

DOJ Has Disrupted a 20-Year Data Set ........................................................................... 15

c.

DOJ Has Never Reported on Facility-Level Death Data ................................................. 16
Figure 2: Letter by Jonathan Fano ........................................................................................ 19
Figure 3: Transcript of Recorded Call on March 28, 2014 from the Chatham County
Detention Center ................................................................................................................... 21

III. Conclusion ........................................................................................................................... 21

i

Uncounted Deaths in America’s Prisons & Jails: How the Department of Justice Failed to
Implement the Death in Custody Reporting Act
Executive Summary
Approximately 1.5 million people are incarcerated in state and local correctional facilities
throughout the United States. 1 Thousands die every year. 2 The Death in Custody Reporting Act
of 2013 (“DCRA 2013” or “the reauthorization”)—reauthorizing a law that first passed in
2000—requires states that accept certain federal funding to report to the Department of Justice
(“DOJ” or “the Department”) about who is dying in prisons and jails. 3
Over the course of a ten-month bipartisan investigation into DOJ’s implementation of the
law, the Permanent Subcommittee on Investigations (“PSI” or “the Subcommittee”) 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.
This failure in turn undermined transparency and Congressional oversight of deaths in
custody. The Subcommittee has found that DOJ will be at least eight years past-due in providing
Congress with the DCRA 2013-required 2016 report on how custodial deaths can be reduced.
The Subcommittee also highlights the following key facts: in Fiscal Year (“FY”) 2021 alone,
DOJ failed to identify at least 990 prison and arrest related deaths; and 70% of the data DOJ
collected was incomplete. 4 DOJ failed to implement effective data collection methodology,
despite internal warnings from the DOJ Office of the Inspector General (“OIG”) and the Bureau
of Justice Statistics (BJS). 5 DOJ’s failures were preventable.
***

Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 1 (GAO-22-106033) (Sept. 20, 2022).
2
In FY 2019, for example, a total of 3,853 individuals died in state prisons or private prison facilities under a state
contract and a total of 1,200 individuals died in local jails. See Department of Justice, Office of Justice Programs,
Bureau of Justice Statistics, Mortality in State and Federal Prisons 2001-2019—Statistical Tables (Dec. 2021)
(bjs.ojp.gov/content/pub/pdf/msfp0119st.pdf); Department of Justice, Office of Justice Programs, Bureau of Justice
Statistics, Mortality in Local Jails 2000-2019—Statistical Tables (Dec. 2021)
(bjs.ojp.gov/content/pub/pdf/mlj0019st.pdf).
3
Death in Custody Reporting Act of 2013, Pub. L. No. 113-242; Death in Custody Reporting Act of 2000, Pub. L.
No. 106-297. DCRA 2013, which became law in 2014, requires federal agencies to report deaths in custody to DOJ.
Id. This report and investigation focuses on the portion of DCRA 2013 that concerns deaths in state or local
custody, and does not consider the portion of the law that concerns deaths in federal custody.
4
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 1 (GAO-22-106033) (Sept. 20, 2022).
5
Dr. E. Ann Carson, Bureau of Justice Statistics, Report Comparing Bureau of Justice Statistics and Bureau of
Justice Assistance Mortality Death Collections, to fulfill Terms of Clearance for OMB Control Number 1121-0249
(May 11, 2021) (omb.report/icr/202105-1121-001/doc/111526800); Department of Justice, Office of the Inspector
General, Review of the Department of Justice’s Implementation of the Death in Custody Reporting Act of 2013 (Dec.
2018) (oig.justice.gov/reports/2018/e1901.pdf).
1

1

The co-sponsors of DCRA, which passed the United States Senate by unanimous consent
and the United States House of Representatives by wide bipartisan margins in both 2000 and
again in 2013, described why collecting death data was critical: it would bring a “new level of
accountability to our Nation’s correctional institutions”; “provide openness in government”;
“bolster public confidence and trust in our judicial system”; and “bring additional
transparency.” 6
DOJ itself described the law in similar terms. According to DOJ:
The requirements set forth in DCRA provide an opportunity to
improve understanding of why deaths occur in custody and
develop solutions to prevent avoidable deaths. Knowledge of the
circumstances leading to death and the number of fatalities is
crucial to developing policies and program changes that could
reduce the number of deaths in custody. 7
DCRA 2013 requires “at a minimum” that states report to DOJ the following information
about custodial deaths: the name, gender, race, ethnicity, and age of the deceased; the date, time,
and location of death; the law enforcement agency that was holding the decedent; and a brief
description of the circumstances surrounding the death. 8 DCRA 2013 also requires DOJ to
report to Congress on how that information can be used to prevent avoidable deaths. 9 This
report was due on December 18, 2016, two years after DCRA 2013 became law. 10
DOJ’s efforts to implement DCRA 2013 were a continuation of its efforts to implement
the original version of the law, the Death in Custody Reporting Act of 2000 (“DCRA 2000”). 11
In response to DCRA 2000, DOJ tasked its criminal justice statistics agency, BJS, with creating a
national survey of deaths in federal, state, and local custody. 12 From 2000 through 2019, BJS
collected, studied, and made public information about deaths in custody, information that went

Statement of Representative Asa Hutchinson, Congressional Record, H6737 (July 24, 2000); Statement of Senator
Patrick Leahy, Congressional Record, S6341 (Dec. 4, 2014).
7
Department of Justice, Bureau of Justice Assistance, Death in Custody Reporting Act (DCRA) Data Collection
(bja.ojp.gov/program/dcra/overview).
8
Death in Custody Reporting Act of 2013, Pub. L. No. 113-242.
9
Death in Custody Reporting Act of 2013, Pub. L. No. 113-242.
10
Death in Custody Reporting Act of 2013, Pub. L. No. 113-242.
11
Death in Custody Reporting Act of 2000, Pub. L. No. 106-297. DCRA 2000 required DOJ to collect almost all of
the same information as required under DCRA 2013. Specifically, the law required that the information collected
“at a minimum” includes: (1) the name, gender, race, ethnicity, and age of the deceased; (2) the date, time, and
location of death; and (3) a brief description of the circumstances surrounding the death. Id. Unlike DCRA 2013,
DCRA 2000 did not require the collection of “the law enforcement agency that detained, arrested, or was in the
process of arresting the deceased.”
12
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in Correctional
Institutions (MCI) (Formerly Deaths in Custody Reporting Program (DCRP) (bjs.ojp.gov/data-collection/mortalitycorrectional-institutions-mci-formerly-deaths-custody-reporting-program).
6

2

far beyond the statutory requirements. 13 During this period, BJS claims to have collected data
from an average of 98% of all local jails and 100% of all state prisons. 14
In a change from DCRA 2000, DCRA 2013 authorizes the Attorney General to withhold
up to 10% of Edward Byrne Memorial Justice Assistance Grant (“JAG”) funding from states that
accepted those funds but did not report custodial death data to DOJ. 15 In 2016, two years after
DCRA 2013 became law, DOJ decided that BJS could no longer implement DCRA 2013. 16 DOJ
explained its rationale in a December 2016 report to Congress. 17 According to DOJ, because
BJS was a statistical agency, it was precluded from administering a data collection program with
“compliance and penalty determinations,” such as the penalty included in DCRA 2013. 18 DOJ
informed Congress that it would be reassigning the state death data collection from BJS to the
Bureau of Justice Assistance (“BJA”), a grant-making agency within DOJ’s Office of Justice
Programs (“OJP”). 19
However, BJS had already been collecting, studying, and reporting on state and local
death data for sixteen years. 20 BJS continued to collect state and local custodial death data until
BJA finally began its collection in FY 2020. 21
Since the transfer of data collection responsibility to BJA, DOJ has not publicly reported
on any data that BJA has collected. 22 Additionally, DOJ is not expected to complete the
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in Correctional
Institutions (MCI) (Formerly Deaths in Custody Reporting Program (DCRP) (bjs.ojp.gov/data-collection/mortalitycorrectional-institutions-mci-formerly-deaths-custody-reporting-program).
14
Dr. E. Ann Carson, Bureau of Justice Statistics, Report Comparing Bureau of Justice Statistics and Bureau of
Justice Assistance Mortality Death Collections, to fulfill Terms of Clearance for OMB Control Number 1121-0249,
at 3 (May 11, 2021) (omb.report/icr/202105-1121-001/doc/111526800).
15
Department of Justice, Report of the Attorney General to Congress Pursuant to the Death in Custody Reporting
Act, at 5 (Dec. 16, 2016) (www.justice.gov/archives/page/file/918846/download).
16
See Department of Justice, Report of the Attorney General to Congress Pursuant to the Death in Custody
Reporting Act (Dec. 16, 2016) (www.justice.gov/archives/page/file/918846/download).
17
Department of Justice, Report of the Attorney General to Congress Pursuant to the Death in Custody Reporting
Act (Dec. 16, 2016) (www.justice.gov/archives/page/file/918846/download).
18
Department of Justice, Report of the Attorney General to Congress Pursuant to the Death in Custody Reporting
Act, at 8 n.17 (Dec. 16, 2016) (www.justice.gov/archives/page/file/918846/download); Dr. Phelan Wyrick,
Department of Justice, Interview with Senate Permanent Subcommittee on Investigations (Sept. 12, 2022).
19
Department of Justice, Report of the Attorney General to Congress Pursuant to the Death in Custody Reporting
Act, at 8 n.17 (Dec. 16, 2016) (www.justice.gov/archives/page/file/918846/download). Federal data collection
remained with BJS however, because there was no penalty associated with federal data collection. See Death in
Custody Reporting Act of 2013, Pub. L. No. 113-242.
20
Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on Investigations
(Sept. 12, 2022); Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in
Correctional Institutions (MCI) (Formerly Deaths in Custody Reporting Program (DCRP) (bjs.ojp.gov/datacollection/mortality-correctional-institutions-mci-formerly-deaths-custody-reporting-program).
21
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in Correctional
Institutions (MCI) (Formerly Deaths in Custody Reporting Program (DCRP) (bjs.ojp.gov/data-collection/mortalitycorrectional-institutions-mci-formerly-deaths-custody-reporting-program).
22
See Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on Investigations
(Sept. 12, 2022). DOJ is not required to make public DCRA data under the statute. Death in Custody Reporting Act
of 2013, Pub. L. No. 113-242.
13

3

statutorily required report to Congress before September 2024, at least eight years past due. 23
DOJ also has no plans to make public any further state and local death information. 24
In December 2021, PSI began a ten-month bipartisan investigation into DOJ’s efforts to
implement DCRA 2013, and, specifically, BJA’s efforts to collect and report on state and local
custodial deaths. 25 During the course of this investigation, PSI interviewed a DOJ official who
spoke on behalf of the agency, family members of ten people who died in state or local custody
across the country, and two criminal justice experts to assess how DCRA data can be used to
bring transparency to custodial deaths. 26 On March 23, 2022, PSI requested that the Government
Accountability Office (“GAO”) analyze data that BJA had collected for FY 2021 pursuant to
DCRA 2013. 27 Based on a review of public and non-public information, including GAO’s
analysis, the Subcommittee found that DOJ has failed to implement DCRA 2013.
The Subcommittee notes that DOJ failed to provide full and complete information to the
Subcommittee. 28 DOJ’s resistance to bipartisan Congressional oversight impeded Congress’
ability to understand whether DCRA 2013 had been properly implemented, delaying potential
reforms that could restore the integrity of this critical program.

23
Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on Investigations
(Sept. 12, 2022); Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure
Data Collected by DOJ are Utilized, at 7 (GAO-22-106033) (Sept. 20, 2022).
24
Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on Investigations
(Sept. 12, 2022).
25
The Subcommittee did not evaluate DOJ’s efforts to comply with the section of DCRA 2013 concerning federal
agencies’ reporting of deaths in custody, which is administered by BJS and appears to be proceeding pursuant to the
requirements of the law.
26
Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on Investigations
(Sept. 12, 2022); University of California Los Angeles School of Law Carceral Mortality Project, Briefing with
Senate Permanent Subcommittee on Investigations (Aug. 3, 2022); Shanelle Jenkins, Interview with Senate
Permanent Subcommittee on Investigations (May 31, 2022); Sandy Ray, Interview with Senate Permanent
Subcommittee on Investigations (May 25, 2022); Dawn Reid, Interview with Senate Permanent Subcommittee on
Investigations (May 9, 2022); Melania Brown, Interview with Senate Permanent Subcommittee on Investigations
(May 9, 2022); Glenda Hester, Interview with Senate Permanent Subcommittee on Investigations (May 6, 2022);
Belinda Maley, Interview with Senate Permanent Subcommittee on Investigations (May 4, 2022); Sherilyn Sabo,
Interview with Senate Permanent Subcommittee on Investigations (Apr. 22, 2022); Vanessa Fano, Interview with
Senate Permanent Subcommittee on Investigations (Apr. 20, 2022); Linda Franks, Interview with Senate Permanent
Subcommittee on Investigations (Apr. 14, 2022); Jennifer Bradley, Interview with Senate Permanent Subcommittee
on Investigations (Apr. 19, 2022); Professor Andrea Armstrong, Loyola University New Orleans School of Law,
Briefing with Senate Permanent Subcommittee on Investigations (Apr. 19, 2022).
27
Letter from Chair Jon Ossoff, Senate Permanent Subcommittee on Investigations, to Government Accountability
Office (Mar. 23, 2022); U.S. Government Accountability Office, About Page (www.gao.gov/about) (accessed Sept.
19, 2022).
28
Letter from Senate Permanent Subcommittee on Investigations to Department of Justice (Dec. 3, 2021); Letter
from Department of Justice to Senate Permanent Subcommittee on Investigations (Feb. 11, 2022); Letter from
Senate Permanent Subcommittee on Investigations to Department of Justice (Apr. 27, 2022). DOJ provided only a
single interview to the Subcommittee and provide only aggregate death data from six states over two-years.

4

Key Facts:
1. 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. 29 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. 30 GAO determined that BJA’s collection was missing information that is
already in the public domain. 31
2. Incomplete Data. GAO found that for FY 2021, the vast majority of death in custody
information that BJA collected from the states was incomplete. 32 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 2013required data field. 33
3. 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.” 34 DOJ does not expect to complete these reporting requirements before
September 2024—eight years late. 35 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. 36
4. 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

Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 10 n.33 (GAO-22-106033) (Sept. 20, 2022).
30
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 10 n.33 (GAO-22-106033) (Sept. 20, 2022).
31
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 10 (GAO-22-106033) (Sept. 20, 2022).
32
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 9 (GAO-22-106033) (Sept. 20, 2022).
33
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 9 (GAO-22-106033) (Sept. 20, 2022).
34
Death in Custody Reporting Act of 2013, Pub. L. No. 113-242.
35
Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on Investigations
(Sept. 12, 2022).
36
Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on Investigations
(Sept. 12, 2022).
29

5

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. 37
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.

Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on Investigations
(Sept. 12, 2022). The Subcommittee further notes that DOJ’s rationale for reassigning the state death data collection
from BJS—a statistical agency that had successfully collected and published DCRA data for 20 years—to BJA—a
grant-making agency with no track record of collecting or reporting on similar data—was that the DCRA 2013 JAG
penalty precluded BJS’s administration of the program. Department of Justice, Report of the Attorney General to
Congress Pursuant to the Death in Custody Reporting Act (Dec. 16, 2016)
(www.justice.gov/archives/page/file/918846/download). Yet, DOJ’s decision came two years after BJS had already
been collecting state death data pursuant to DCRA 2013, and DOJ permitted BJS to continue its collection for
another three years. Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on
Investigations (Sept. 12, 2022).
37

6

Figure 1: Death in Custody Reporting Act Timeline
2000

• DCRA 2000 passed into law by wide bipartisan margins.
• BJS begins to collect, study, and publish state and local custodial death data.

2006

• DCRA 2000 expires.
• BJS continues to collect, study, and publish the death in custody information specified in DCRA 2000.

2014

• Congress reauthorizes DCRA 2000 by passing DCRA 2013, which contains additional provisions beyond
those in the original iteration of the law.

2016

• DOJ submits a report to Congress concerning its plans to implement the DCRA reauthorization.
• DOJ reasssigns the DCRA 2013 data collection for deaths in state or local custody from BJS to BJA.

2018

• DOJ Office of the Inspector General warns that DOJ's plans to implement DCRA 2013 could lead to an
unreliable, inaccurate, or incomplete data collection.

2019

• BJA begins collecting death data in state and local facilities in October 2019, overlapping with BJS's
collection for the last three months of the year.

2021

• BJS's analysis finds that BJA failed to capture state prison death data in 11 states or any jail death data in
12 states and the District of Columbia from October through December 2019.

• President Biden issues an Executive Order requiring the Attorney General to publish a report "on the
2022 steps the DOJ has taken and plans to take to fully implement the Death in Custody Reporting Act of
2013."
• GAO finds that for FY 2021, BJA's data collection missed at least 990 state prison and arrest-related
deaths that were otherwise publicly disclosed.
• On September 16, 2022, DOJ publishes the report required by President Biden's Executive Order.

7

I.

The Death in Custody Reporting Act
a. History

In 2000, Congress passed DCRA 2000, which required states to issue quarterly reports to
the Attorney General about prison and jail deaths. 38 In order to be eligible for Violent Offender
Incarceration and Truth in Sentencing grant funding—funding for building or expanding
correctional facilities—states were required to “provide assurances” that they will report data to
DOJ for the following fields: (1) the name, gender, race, ethnicity, and age of the deceased; (2)
the date, time, and location of death; and (3) a brief description of the circumstances surrounding
death. 39
In response to the passage of DCRA 2000, BJS, DOJ’s statistical agency, established a
national custodial death data collection. 40 BJS began collecting individual death records from
local jails in 2000 and state prisons in 2001 as part of a national study that came to be known as
Mortality in Correctional Institutions (“MCI”). 41 Through MCI, BJS collected information about
deaths in custody from the approximately 2,800 adult jails and 50 state departments of
corrections, “track[ing] national trends in the number and causes of deaths occurring in
correctional institutions.” 42
DCRA 2000 did not expressly require publication of state and local death data. 43
However, for the 20-year period from 2000 through 2019, BJS published information, statistics,
and analyses of “comparative death rates across demographic categories, offense types and

Death in Custody Reporting Act of 2000, Pub. L. No. 106-297.
Death in Custody Reporting Act of 2000, Pub. L. No. 106-297; Department of Justice, Bureau of Justice
Assistance, Violent Offender Incarceration and Truth-In-Sentencing (VOI/TIS) Incentive Program
(https://bja.ojp.gov/program/violent-offender-incarceration-and-truth-sentencing-voitis-incentiveprogram/overview).
40
Department of Justice, Office of the Inspector General, Review of the Department of Justice’s Implementation of
the Death in Custody Reporting Act of 2013, at 2-3 (Dec. 2018) (oig.justice.gov/reports/2018/e1901.pdf).
41
Department of Justice, Office of the Inspector General, Review of the Department of Justice’s Implementation of
the Death in Custody Reporting Act of 2013, at 2 (Dec. 2018) (oig.justice.gov/reports/2018/e1901.pdf); Department
of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in Correctional Institutions (MCI)
(Formerly Deaths in Custody Reporting Program (DCRP) (bjs.ojp.gov/data-collection/mortality-correctionalinstitutions-mci-formerly-deaths-custody-reporting-program) (BJS’s national study of death in custody).
42
Department of Justice, Office of the Inspector General, Review of the Department of Justice’s Implementation of
the Death in Custody Reporting Act of 2013, at 2 (Dec. 2018) (oig.justice.gov/reports/2018/e1901.pdf).
43
Death in Custody Reporting Act of 2000, Pub. L. No. 106-297.
38
39

8

facility/agency characteristics.” 44 BJS reported that it collected data from an average of 98% of
all local jails and 100% of all state prisons. 45
When DCRA 2000 expired in 2006, BJS continued to collect and publish the data
specified in the law because BJS determined “they represent a unique national resource for
understanding mortality in the criminal justice system.” 46 BJS was able to continue collecting
data under BJS’s authorizing statute. 47
In 2014, Congress reauthorized DCRA 2000. 48 The reauthorization restored and
expanded DCRA 2000’s mandates with four key additions concerning deaths in state and local
custody. 49 First, it requires states to report “the law enforcement agency that detained, arrested,
or was in the process of arresting the deceased,” in addition to the fields required by DCRA
2000. 50 BJS had never before published information identifying the law enforcement agency
holding the person who died. 51 Second, it requires DOJ to collect state reported death data in
perpetuity, with no expiration. 52
Third, it requires that by December 2016, two years after DCRA 2013 became law, DOJ
issue a report to Congress that would “determine means by which [death in custody] information
can be used to reduce the number of such deaths,” and “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.” 53 DOJ has not yet provided any DCRA 2013required reporting to Congress. It does not expect to complete its DCRA 2013-required
reporting before 2024, eight years past its required due date. 54 Fourth, it authorized the Attorney
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Deaths in Custody Statistical
Tables (July 2010) (bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/dictabs.pdf); see also Department of
Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in Correctional Institutions (MCI)
(Formerly Deaths in Custody Reporting Program (DCRP) (bjs.ojp.gov/data-collection/mortality-correctionalinstitutions-mci-formerly-deaths-custody-reporting-program).
45
Dr. E. Ann Carson, Bureau of Justice Statistics, Report Comparing Bureau of Justice Statistics and Bureau of
Justice Assistance Mortality Death Collections, to fulfill Terms of Clearance for OMB Control Number 1121-0249,
at 3 (May 11, 2021) (omb.report/icr/202105-1121-001/doc/111526800).
46
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Deaths in Custody Statistical
Tables, at 1 (July 2010) (bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/dictabs.pdf).
47
34 U.S.C. § 10132 (BJS is authorized to “collect and analyze statistical information, concerning the operations of
the criminal justice system” at all levels of government, and to “publish, and disseminate uniform national statistics
concerning all aspects of criminal justice.”).
48
Death in Custody Reporting Act of 2013, Pub. L. No. 113-242.
49
Death in Custody Reporting Act of 2013, Pub. L. No. 113-242.
50
Death in Custody Reporting Act of 2013, Pub. L. No. 113-242.
51
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in Correctional
Institutions (MCI) (Formerly Deaths in Custody Reporting Program (DCRP) (bjs.ojp.gov/data-collection/mortalitycorrectional-institutions-mci-formerly-deaths-custody-reporting-program).
52
Death in Custody Reporting Act of 2013, Pub. L. No. 113-242.
53
Death in Custody Reporting Act of 2013, Pub. L. No. 113-242.
54
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 7 (GAO-22-106033) (Sept. 20, 2022). DOJ has commissioned two studies in response to
DCRA’s reporting requirements. See Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent
Subcommittee on Investigations (Sept. 12, 2022). DOJ informed the Subcommittee that it expects to produce the
first report to Congress in late 2022 and the second report at some point after September 2024. Id.
44

9

General, at the Attorney General’s discretion, to withhold up to 10% of a state’s JAG grant
funding from states or territories if that state failed to report DCRA data to DOJ. 55 To date, DOJ
has not withheld any funds from states that accept JAG grants but did not report DCRA-required
data to DOJ, and has not assessed state compliance with DCRA reporting. 56
After Congress passed the reauthorization, BJS continued its collection and publication of
death data. 57 On December 16, 2016, DOJ issued a report to Congress setting forth its plans for
implementing DCRA. 58 Part of this plan included reassigning the DCRA 2013 state and local
custodial death collection from BJS to BJA, a grant-making agency within OJP. DOJ explained
its rationale for the change as follows:
BJA administers the Byrne JAG Program and the compliance and
penalty determinations that program requires. BJS will not
administer the DCRA collection because its compliance is tied to
the administration of the Byrne JAG Program, and BJS’s statistical
directives make clear that it “must function in an environment that
is clearly separate and autonomous from the other administrative,
regulatory, law enforcement, or policy-making activities” of the
Department. 59
Death in Custody Reporting Act of 2013, Pub. L. No. 113-242.
Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on Investigations
(Sept. 12, 2022); Government Accountability Office, Briefing with Senate Permanent Subcommittee on
Investigations (Sept. 8, 2022).
57
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in Correctional
Institutions (MCI) (Formerly Deaths in Custody Reporting Program (DCRP) (bjs.ojp.gov/data-collection/mortalitycorrectional-institutions-mci-formerly-deaths-custody-reporting-program).
58
Department of Justice, Report of the Attorney General to Congress Pursuant to the Death in Custody Reporting
Act (Dec. 16, 2016) (www.justice.gov/archives/page/file/918846/download).
59
Department of Justice, Report of the Attorney General to Congress Pursuant to the Death in Custody Reporting
Act, at 8 n.17 (Dec. 16, 2016) (www.justice.gov/archives/page/file/918846/download). In later years, DOJ
characterized its rationale for reassigning the collection from BJS to BJA differently. In a BJS report dated May 11,
2021 and on BJS’s website, BJS describes DOJ’s rationale as follows:
55
56

In 2016, the Department of Justice (DOJ) decided to place more emphasis on
the section of P.L. 113-242 that concerned non-compliance with the data
collection. Per the law, states that did not report on a quarterly basis individuallevel data on deaths occurring in local jails, in state prisons, or in the process of
arrest, could be penalized up to 10% of the DOJ-administered Justice Assistance
Grants (JAG) awards. The DOJ determined that the Bureau of Justice
Assistance (BJA) should manage collection of the data pursuant to the law
because BJS, as a federal statistical agency, may not collect data for law
enforcement purposes. BJA is not under similar requirements to collect data for
statistical purposes only.
Dr. E. Ann Carson, Bureau of Justice Statistics, Report Comparing Bureau of Justice Statistics and Bureau of
Justice Assistance Mortality Death Collections, to fulfill Terms of Clearance for OMB Control Number 1121-0249,
at 3-4 (May 11, 2021) (omb.report/icr/202105-1121-001/doc/111526800) (emphasis added); Department of Justice,
Office of Justice Programs, Bureau of Justice Statistics, Mortality in Correctional Institutions (MCI) (Formerly
Deaths in Custody Reporting Program (DCRP) (bjs.ojp.gov/data-collection/mortality-correctional-institutions-mciformerly-deaths-custody-reporting-program) (emphasis added).

10

DOJ reasoned that the JAG funding penalty provision requires BJS to collect data for
“enforcement purposes,” which BJS is not permitted to do as a federal statistical agency. 60 Up
until that point, BJS had been collecting death data in response to DCRA 2000 for approximately
fifteen years. 61 BJS continued to collect this same data until January 1, 2020. 62
In 2018, the DOJ Office of the Inspector General (“OIG”) conducted a review of DOJ’s
plans to implement DCRA 2013. 63 DOJ OIG wrote, “We found that the Department’s state
DCRA data collection plan that BJA proposed in June 2018 may not produce the quality of data
about deaths in custody necessary to achieve the intent of the law.” 64 DOJ OIG’s provided two
reasons for this finding. 65 First, it would be duplicative of other collections and risk “confus[ing]
and fatig[uing] data respondents, who in turn may submit low-quality data.” 66 Second, the data
collection methodology that BJA planned to employ—only seeking data from states themselves
and “not fully leverag[ing] open sources”—might preclude BJA from achieving DCRA’s
primary purpose. 67 DOJ OIG’s 2018 review also found that, despite the report being two years
past due, DOJ did not have plans to issue the DCRA-required report due to Congress. 68
BJS continued to collect, study, and publish information about deaths in state and local
custody through the 2019 calendar year, and formally closed the MCI program on March 31,
2021. 69 BJA began collecting state and local death data in FY 2020, using a data collection

Dr. E. Ann Carson, Bureau of Justice Statistics, Report Comparing Bureau of Justice Statistics and Bureau of
Justice Assistance Mortality Death Collections, to fulfill Terms of Clearance for OMB Control Number 1121-0249,
at 4 (May 11, 2021) (omb.report/icr/202105-1121-001/doc/111526800).
61
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in Correctional
Institutions (MCI) (Formerly Deaths in Custody Reporting Program (DCRP) (bjs.ojp.gov/data-collection/mortalitycorrectional-institutions-mci-formerly-deaths-custody-reporting-program); Dr. Phelan Wyrick, Department of
Justice, Interview with Senate Permanent Subcommittee on Investigations (Sept. 12, 2022).
62
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in Correctional
Institutions (MCI) (Formerly Deaths in Custody Reporting Program (DCRP) (bjs.ojp.gov/data-collection/mortalitycorrectional-institutions-mci-formerly-deaths-custody-reporting-program); Dr. Phelan Wyrick, Department of
Justice, Interview with Senate Permanent Subcommittee on Investigations (Sept. 12, 2022).
63
Department of Justice, Office of the Inspector General, Review of the Department of Justice’s Implementation of
the Death in Custody Reporting Act of 2013 (Dec. 2018) (oig.justice.gov/reports/2018/e1901.pdf).
64
Department of Justice, Office of the Inspector General, Review of the Department of Justice’s Implementation of
the Death in Custody Reporting Act of 2013, at 13-14 (Dec. 2018) (oig.justice.gov/reports/2018/e1901.pdf).
65
Department of Justice, Office of the Inspector General, Review of the Department of Justice’s Implementation of
the Death in Custody Reporting Act of 2013, at 13-14 (Dec. 2018) (oig.justice.gov/reports/2018/e1901.pdf).
66
Department of Justice, Office of the Inspector General, Review of the Department of Justice’s Implementation of
the Death in Custody Reporting Act of 2013, at 13-14 (Dec. 2018) (oig.justice.gov/reports/2018/e1901.pdf).
67
Department of Justice, Office of the Inspector General, Review of the Department of Justice’s Implementation of
the Death in Custody Reporting Act of 2013, at 13-14 (Dec. 2018) (oig.justice.gov/reports/2018/e1901.pdf).
68
Department of Justice, Office of the Inspector General, Review of the Department of Justice’s Implementation of
the Death in Custody Reporting Act of 2013, at i (Dec. 2018) (oig.justice.gov/reports/2018/e1901.pdf).
69
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in Correctional
Institutions (MCI) (Formerly Deaths in Custody Reporting Program (DCRP) (bjs.ojp.gov/data-collection/mortalitycorrectional-institutions-mci-formerly-deaths-custody-reporting-program). BJS continues to collect data on deaths
in federal custody. See, e.g., Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Federal
Deaths in Custody and During Arrest, 2020—Statistical Tables (July 2022)
(https://bjs.ojp.gov/content/pub/pdf/fdcda20st.pdf).
60

11

methodology and survey instrument that were both different from what BJS employed. 70 In May
2022, President Biden issued an Executive Order calling for DOJ to publish a report on the steps
the Department has taken to implement DCRA 2013. 71 The Department published this report on
September 16, 2022. 72
b. DOJ’s Flawed FY 2020 Collection
Because BJS collected death data according to the calendar year and BJA collected death
data according to the fiscal year, BJS’s collection overlapped with BJA’s for three months—
from October through December 2019. 73 As a condition for approving the continued collection
of MCI data for calendar years 2018 and 2019, the Office of Management and Budget (“OMB”)
required BJS to issue a report comparing its collection to BJA’s for the overlapping period. 74
BJS issued this report to OMB on May 11, 2021. 75 BJS identified numerous shortcomings in
BJA’s methodology and significant gaps in its collection.
Among the shortcomings BJS found were:
•

“When compared to [BJS], BJA’s data collection did not capture any state prison
deaths in 11 states or any local jail deaths in 12 states and the District of
Columbia.” 76

•

“BJA’s collection included only 38.9% of local jail deaths and 66.3% of state
prison deaths” that BJS collected. 77

Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on Investigations
(Sept. 12, 2022); see also Dr. E. Ann Carson, Bureau of Justice Statistics, Report Comparing Bureau of Justice
Statistics and Bureau of Justice Assistance Mortality Death Collections, to fulfill Terms of Clearance for OMB
Control Number 1121-0249, at 5-8 (May 11, 2021) (omb.report/icr/202105-1121-001/doc/111526800) (discussing
BJA’s data collection methodology and survey tool—Performance Measurement Tool).
71
Exec. Order No. 14074, 87 Fed. Reg. 32945 (May 25, 2022).
72
Department of Justice, Office of the Attorney General, Department of Justice Implementation of the Death in
Custody Reporting Act of 2013 (Sept. 16, 2022) (https://bja.ojp.gov/doc/DOJ-Implementation-of-DCRA.pdf).
73
Dr. E. Ann Carson, Bureau of Justice Statistics, Report Comparing Bureau of Justice Statistics and Bureau of
Justice Assistance Mortality Death Collections, to fulfill Terms of Clearance for OMB Control Number 1121-0249,
at 1 (May 11, 2021) (omb.report/icr/202105-1121-001/doc/111526800).
74
Dr. E. Ann Carson, Bureau of Justice Statistics, Report Comparing Bureau of Justice Statistics and Bureau of
Justice Assistance Mortality Death Collections, to fulfill Terms of Clearance for OMB Control Number 1121-0249,
at 1 (May 11, 2021) (omb.report/icr/202105-1121-001/doc/111526800).
75
Dr. E. Ann Carson, Bureau of Justice Statistics, Report Comparing Bureau of Justice Statistics and Bureau of
Justice Assistance Mortality Death Collections, to fulfill Terms of Clearance for OMB Control Number 1121-0249
(May 11, 2021) (omb.report/icr/202105-1121-001/doc/111526800).
76
Dr. E. Ann Carson, Bureau of Justice Statistics, Report Comparing Bureau of Justice Statistics and Bureau of
Justice Assistance Mortality Death Collections, to fulfill Terms of Clearance for OMB Control Number 1121-0249,
at 2 (May 11, 2021) (omb.report/icr/202105-1121-001/doc/111526800).
77
Dr. E. Ann Carson, Bureau of Justice Statistics, Report Comparing Bureau of Justice Statistics and Bureau of
Justice Assistance Mortality Death Collections, to fulfill Terms of Clearance for OMB Control Number 1121-0249,
at 2 (May 11, 2021) (omb.report/icr/202105-1121-001/doc/111526800).
70

12

•

States reported 1,246 deaths to BJS but only 744 deaths to BJA (59.7% of the
deaths reported to BJS). 78

•

Six states did not report any deaths in custody to BJA, but did report deaths to
BJS. 79

•

There were various data quality concerns with BJA’s collection, such as
inaccuracies and missing fields. For example, 56 of the deaths reported to BJA as
deaths during arrest had actually occurred in jails and prisons when reported to
BJS. 80

c. DOJ’s Flawed FY 2021 Collection
On March 23, 2022, PSI requested that GAO study the submissions that BJA had
received from states for FY 2021, and report to the Subcommittee on whether DOJ had taken
steps to rectify the problems previously identified by BJS with BJA’s FY 2020 data collection. 81
GAO’s findings, like BJS’s the year prior, revealed myriad deficiencies in BJA’s collection.
GAO found the following for FY 2021 data:
•

At least 341 missing and potentially reportable prison deaths were disclosed on
states’ public websites but were not collected by BJA. 82 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. 83 Together, GAO determined
that BJA missed at least 990 prison and arrest-related deaths. 84 GAO informed

Dr. E. Ann Carson, Bureau of Justice Statistics, Report Comparing Bureau of Justice Statistics and Bureau of
Justice Assistance Mortality Death Collections, to fulfill Terms of Clearance for OMB Control Number 1121-0249,
at 2 (May 11, 2021) (omb.report/icr/202105-1121-001/doc/111526800).
79
Dr. E. Ann Carson, Bureau of Justice Statistics, Report Comparing Bureau of Justice Statistics and Bureau of
Justice Assistance Mortality Death Collections, to fulfill Terms of Clearance for OMB Control Number 1121-0249,
at 2 (May 11, 2021) (omb.report/icr/202105-1121-001/doc/111526800).
80
Dr. E. Ann Carson, Bureau of Justice Statistics, Report Comparing Bureau of Justice Statistics and Bureau of
Justice Assistance Mortality Death Collections, to fulfill Terms of Clearance for OMB Control Number 1121-0249,
at 2, 8 (May 11, 2021) (omb.report/icr/202105-1121-001/doc/111526800).
81
Letter from Chair Jon Ossoff, Senate Permanent Subcommittee on Investigations, to Government Accountability
Office (Mar. 23, 2022).
82
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 10 n.33 (GAO-22-106033) (Sept. 20, 2022). In its report, GAO noted that it was “relying on
states’ disclosures of deaths in custody and did not independently verify that these deaths occurred in custody and
therefore refer to these deaths as potentially reportable.” Id.
83
In its report, GAO noted, “Mapping Police Violence uses media accounts and other open-source information to
collect information on deaths. Therefore, if an arrest-related death was not made public, it would not be included in
this database and we could not determine if it was captured in DCRA data or not.” Government Accountability
Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected by DOJ are Utilized, at 10 n.33
(GAO-22-106033) (Sept. 20, 2022); Campaign Zero, Mapping Police Violence (updated Mar. 31, 2022)
(mappingpoliceviolence.org/).
84
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 10 n.33 (GAO-22-106033) (Sept. 20, 2022).
78

13

the Subcommittee that it could not assess whether BJA missed jail deaths because
there is no centralized, public repository of that information. 85 GAO estimated
that the 990 missing deaths was an undercount of unreported deaths. 86

II.

•

Fifty-six states and territories received JAG funding and were required by law to
report custodial death information to BJA. 87 Only 47 states reported deaths in
custody. 88 For the nine states that did not report to BJA, GAO found that at least
four of the states had deaths in custody—124 deaths in total. 89

•

Seventy percent of death in custody records produced by states to BJA in FY
2021 were missing at least one category of information that DCRA required DOJ
to collect; 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-required field. 90

•

Only two states submitted DCRA data to BJA that contained all of the required
data fields. 91 Seven states did not produce a single record to DOJ with all the
required data fields. 92

DOJ’s Failure to Implement DCRA 2013

Deaths in government custody can be probative of policy or administrative failures. 93
Understanding where and why prisoners are dying can reveal breakdowns in medical care,

85
Government Accountability Office, Briefing with Senate Permanent Subcommittee on Investigations (Sept. 8,
2022).
86
Government Accountability Office, Briefing with Senate Permanent Subcommittee on Investigations (Sept. 8,
2022).
87
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 10 n.34 (GAO-22-106033) (Sept. 20, 2022). GAO did not disclose to the Subcommittee the
names of the states that had not submitted data to BJA.
88
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 10 n.34 (GAO-22-106033) (Sept. 20, 2022).
89
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 10 n.34 (GAO-22-106033) (Sept. 20, 2022).
90
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 9 (GAO-22-106033) (Sept. 20, 2022).
91
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 10 (GAO-22-106033) (Sept. 20, 2022).
92
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 10 (GAO-22-106033) (Sept. 20, 2022).
93
University of California Los Angeles School of Law Carceral Mortality Project, Briefing with Senate Permanent
Subcommittee on Investigations (Aug. 3, 2022); Professor Andrea Armstrong, Loyola University New Orleans
School of Law, Briefing with Senate Permanent Subcommittee on Investigations (Apr. 19, 2022).

14

substance abuse treatment, anti-drug diversion programs, mental health services, or safe
custodial environments. 94
a. DOJ’s Statutorily-Prescribed Reporting Will Be at Least Eight Years Late
DCRA 2013 required that DOJ report to Congress by December 18, 2016 on how the
custodial death information that it had collected can be used to “to reduce the number of such
deaths” and “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.” 95
DOJ has failed to comply with this requirement in two ways. First, DOJ does not intend
complete these reporting requirements before September 2024, eight years past the statutory
deadline. 96 Second, the data that BJA did collect for FY 2020 and FY 2021 missed hundreds of
deaths and reports from multiple states. 97 Going forward, BJA intends to use the same failed
data collection methodologies used in its FY 2020 and FY 2021 collections, including the same
data collection tool and relying on state collection agencies. 98
b. DOJ Has Disrupted a 20-Year Data Set
From 2000 through 2019, DOJ demonstrated its ability to collect comprehensive data
about deaths in state and local custody, assembling detailed information about why incarcerated
people died by state, type of detention facility, and cause. 99 For example, BJS’s data collection,
study, and publication revealed important information including:
•

From 2001 through 2019, approximately 84,537 prisoners in America died in
state or local facilities. 100

University of California Los Angeles School of Law Carceral Mortality Project, Briefing with Senate Permanent
Subcommittee on Investigations (Aug. 3, 2022); Professor Andrea Armstrong, Loyola University New Orleans
School of Law, Briefing with Senate Permanent Subcommittee on Investigations (Apr. 19, 2022).
95
Death in Custody Reporting Act of 2013, Pub. L. No. 113-242.
96
Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on Investigations
(Sept. 12, 2022).
97
Government Accountability Office, Deaths in Custody: Additional Action Needed to Help Ensure Data Collected
by DOJ are Utilized, at 10 n.33 (GAO-22-106033) (Sept. 20, 2022). DOJ’s position is that it has not yet determined
whether this data can be used to support the DCRA-required reporting. See Dr. Phelan Wyrick, Department of
Justice, Interview with Senate Permanent Subcommittee on Investigations (Sept. 12, 2022).
98
In an interview with the Subcommittee, Dr. Wyrick described a number of strategies that DOJ plans to employ in
an attempt to improve reporting quality and completeness, including additional training and technical assistance to
state reporters. Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on
Investigations (Sept. 12, 2022). However, these strategies will not change the underlying data collection
methodology that BJA used in FY 2020, FY 2021, and in subsequent years.
99
See Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in State and Federal
Prisons 2001-2019—Statistical Tables (Dec. 2021) (bjs.ojp.gov/content/pub/pdf/msfp0119st.pdf); Department of
Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in Local Jails 2000-2019—Statistical
Tables (Dec. 2021) (bjs.ojp.gov/content/pub/pdf/mlj0019st.pdf); Dr. Phelan Wyrick, Department of Justice,
Interview with Senate Permanent Subcommittee on Investigations (Sept. 12, 2022).
100
This figure is derived from combining data from BJS reports on (1) deaths in state custody, and (2) deaths in
local jails. See Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in State
94

15

•

Suicide was the single leading cause of death in local jails in 2019. 101

•

“Jails with an average daily population of 49 or fewer inmates had the highest
mortality rates each year from 2000 to 2019.” 102

•

From 2001 through 2019, “[t]he highest average annual rate of homicide in state
prisons [] was in South Carolina (15 per 100,000 [prisoners]) and Oklahoma (14
per 1000,000 [prisoners]).” 103 New Hampshire, North Dakota, Vermont, and
Wyoming reported no prison homicides during this period. 104

DOJ has disrupted this 20-year data set in two ways. First, BJA failed to collect complete
or accurate data for FY 2020 and FY 2021. 105 Second, BJA changed its data collection
methodology and survey instrument, ending certain important data sets and preventing analysis
of certain longitudinal trends. 106 DOJ is not required to—and has no specific plans to—publish
any state and local custodial death information for FY 2020, FY 2021, or beyond. 107
c. DOJ Has Never Reported on Facility-Level Death Data
DCRA 2013 required states accepting JAG funding to report—and DOJ to collect—data
identifying the law enforcement agency holding the person who died in custody, and then use
that information 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.” 108 Unlike the other data elements that DCRA 2013 requires DOJ to collect—which BJS

and Federal Prisons 2001-2019—Statistical Tables (Dec. 2021) (bjs.ojp.gov/content/pub/pdf/msfp0119st.pdf);
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in Local Jails 2000-2019—
Statistical Tables (Dec. 2021) (bjs.ojp.gov/content/pub/pdf/mlj0019st.pdf).
101
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in Local Jails 20002019—Statistical Tables, at 2 (Dec. 2021) (bjs.ojp.gov/content/pub/pdf/mlj0019st.pdf).
102
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in Local Jails 20002019—Statistical Tables, at 1 (Dec. 2021) (bjs.ojp.gov/content/pub/pdf/mlj0019st.pdf).
103
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in State and Federal
Prisons 2001-2019—Statistical Tables, at 5 (Dec. 2021) (bjs.ojp.gov/content/pub/pdf/msfp0119st.pdf).
104
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Mortality in State and Federal
Prisons 2001-2019—Statistical Tables, at 5 (Dec. 2021) (bjs.ojp.gov/content/pub/pdf/msfp0119st.pdf).
105
See Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on Investigations
(Sept. 12, 2022).
106
Professor Andrea Armstrong, Loyola University New Orleans School of Law, Briefing with Senate Permanent
Subcommittee on Investigations (Apr. 19, 2022).
107
In an interview with the Subcommittee, Dr. Wyrick stated that he was unaware of whether the Department has
made a decision publishing state and local death data collected after FY 2021. Dr. Phelan Wyrick, Department of
Justice, Interview with Senate Permanent Subcommittee on Investigations (Sept. 12, 2022). He also said that the
Department is not planning to publish any death in custody information collected by BJA for FY 2020 and FY 2021
because the data that BJA had collected was incomplete and could be misleading if disclosed. Id.
108
Death in Custody Reporting Act of 2013, Pub. L. No. 113-242.

16

collected, studied, and published from 2000 through 2019—DOJ has never before publicly
reported facility-level death data. 109
Faced with limited publicly available information identifying the specific facilities where
prisoners are dying, journalists and non-profit organizations have undertaken piecemeal efforts to
compile this information by submitting open records requests to individual jails and prison
systems and then publishing the results. 110 They have stepped in to attempt the data collection
that DOJ is statutorily obligated and best situated to do, as DOJ has the resources, expertise, and
tools to facilitate compliance and conduct cross-jurisdictional data analysis. 111
In October 2020, one media organization, Reuters, disclosed the results of its nationwide
investigation into jail deaths. 112 Per Reuters, it engaged in this investigation because “[t]he U.S.
government collects detailed data on who’s dying in which jails around the country – but won’t
let anyone see it.” 113 Reuters submitted 1,500 open records requests for death data from every
large jail in the United States and the ten largest individual jails in every state for 2008 to
2019. 114 The Reuters review of deaths in custody offered critical examples of why disclosure of
facility-level death can help identify troubling trends in prisons and jails.
For example, on October 31, 2016, police officers in Baton Rouge, Louisiana, arrested
Jonathan Fano for several misdemeanors after he suffered a mental health episode associated
with his diagnoses of bipolar disorder and depression while traveling from Florida to California
by bus. 115 While held at the East Baton Rouge Parish Prison (“EBRPP”) pending adjudication of
109
Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on Investigations
(Sept. 12, 2022). The Subcommittee’s investigation into corruption, abuse, and misconduct at the U.S. Penitentiary
Atlanta (“USPA”) showed how facility-level death data can help shed light on whether prison and jail conditions are
safe, humane, and managed effectively. USPA—a Federal Bureau of Prisons (“BOP”) facility rife with dangerous
contraband, security failings, and inhumane conditions of incarceration since at least 2013—had 13 prisoner suicides
from 2012 to 2021 and five suicides within the two-year period between 2019 and 2021. There were more prisoner
suicides at USPA between 2016 and 2021 than any other BOP facility. Senate Permanent Subcommittee on
Investigations, Hearing on Corruption, Abuse, and Misconduct at U.S. Penitentiary Atlanta, 117th Cong. (July 26,
2022) (hsgac.senate.gov/subcommittees/investigations/hearings/corruption-abuse-and-misconduct-at-uspenitentiary-atlanta); Memorandum from Sonya Thompson, Assistant Director of the Reentry Services Division to
J.A. Keller, Southeast Regional Director re Psychology Reconstruction response (PSIDocumentProduction807082022-002846); Psychology Reconstruction of an Inmate Suicide at USPA (PSIDocumentProduction807082022-002).
110
See, e.g., Incarceration Transparency (www.incarcerationtransparency.org/) (accessed Sept. 13, 2022).
111
Death in Custody Reporting Act of 2013, Pub. L. No. 113-242; University of California Los Angeles School of
Law Carceral Mortality Project, Briefing with Senate Permanent Subcommittee on Investigations (Aug. 3, 2022);
Dr. Phelan Wyrick, Department of Justice, Interview with Senate Permanent Subcommittee on Investigations (Sept.
12, 2022).
112
Grant Smith, Jail Deaths in America: Data and Key Findings of Dying Inside, Reuters (Oct. 16, 2020)
(www.reuters.com/investigates/special-report/usa-jails-graphic/).
113
Peter Eisler, et al., Why 4,998 Died in U.S. Jails Without Getting Their Day in Court, Reuters (Oct. 16, 2020)
(www.reuters.com/investigates/special-report/usa-jails-deaths/).
114
Grant Smith, Jail Deaths in America: Data and Key Findings of Dying Inside, Reuters (Oct. 16, 2020)
(www.reuters.com/investigates/special-report/usa-jails-graphic/).
115
Fano was charged with obscenity, criminal trespass, disturbing the peace, resisting arrest, battery on an Officer,
and simple criminal damage to property. Zavala v. City of Baton Rouge, No. 17-656-JWD-EWD (M.D. La. Sept.
20, 2018). The Fano family complaint in civil litigation following Fano’s death alleged that no officer was injured

17

the charges against him, Fano was denied psychotropic medications. 116 He hung himself on
February 2, 2017 and was declared dead three days later. 117 Reuters reported that from 2009 to
2019, there were 45 deaths at the EBRPP—an average of 4.5 deaths per year—more than double
the national average of jail deaths. 118 Given the higher than average death rate at this facility, it
is possible that DCRA data could have identified the trend and allowed DOJ and EBRPP to take
corrective measures.
Jonathan Fano’s sister, Vanessa Fano, told the Subcommittee that for the three months
her brother was incarcerated at EBRPP, he was just “trying not to die in there.” 119 Vanessa Fano
provided the Subcommittee with a letter that she received from him on or about January 2017,
while held at EBRPP.

during the arrest. Complaint at 6, Zavala v. City of Baton Rouge, No. 17-656-JWD-EWD (M.D. La. Sept. 20, 2018);
see also Vanessa Fano, Interview with Senate Permanent Subcommittee on Investigations (Apr. 20, 2022).
116
Zavala v. City of Baton Rouge, No. 17-656-JWD-EWD (M.D. La. Sept. 20, 2018); Vanessa Fano, Interview with
Senate Permanent Subcommittee on Investigations (Apr. 20, 2022).
117
Zavala v. City of Baton Rouge, No. 17-656-JWD-EWD (M.D. La. Sept. 20, 2018); Vanessa Fano, Interview with
Senate Permanent Subcommittee on Investigations (Apr. 20, 2022).
118
See Grant Smith, Jail Deaths in America: Data and Key Findings of Dying Inside, Louisiana PDF, Reuters (Oct.
16, 2020) (www.reuters.com/investigates/special-report/usa-jails-graphic/).
119
Vanessa Fano, Interview with Senate Permanent Subcommittee on Investigations (Apr. 20, 2022).

18

Figure 2: Letter by Jonathan Fano 120

For another example, in February 2014, officers arrested Matthew Loflin for possession,
a non-violent drug charge, and incarcerated him at the Chatham County Detention Center
(“CCDC”) in Georgia. 121 From February to April 2014, Loflin repeatedly requested medical
treatment for symptoms suggestive of congestive heart failure, including swelling of his
extremities, difficulty breathing, and coughing up blood, but his requests were denied for
weeks. 122 Loflin died on April 24, 2014 after suffering irreversible brain damage following
Email from Vanessa Fano to Senate Permanent Subcommittee on Investigations Staff (June 22, 2022).
Maley v. Corizon Health, Inc., No. CV416-060, 2018 WL 1002635 (S.D. Ga. Feb. 21, 2018); Jason Szep, et al.,
Special Report: U.S. Jails are Outsourcing Medical Care – and the Death Toll is Rising, Reuters (Oct. 26, 2020)
(www.reuters.com/investigates/special-report/usa-jails-privatization/).
122
See Belinda Maley, Interview with Senate Permanent Subcommittee on Investigations (May 4, 2022); Jason
Szep, et al., Special Report: U.S. Jails are Outsourcing Medical Care – and the Death Toll is Rising, Reuters (Oct.
26, 2020) (www.reuters.com/investigates/special-report/usa-jails-privatization/).
120
121

19

hospitalization for heart failure. 123 Reuters identified 22 people who died at CCDC from 2009
through 2019. 124 Of these deaths, 50% were due to illness. 125 There is the potential that had
DCRA been implemented properly, the trend in illness-related deaths could have been identified
and corrective measures taken. The last time Loflin spoke with his mother, days before his
death, he told her that he was afraid he was going to die. A transcript of this recorded phone call
follows:

Jason Szep, et al., Special Report: U.S. Jails are Outsourcing Medical Care – and the Death Toll is Rising,
Reuters (Oct. 26, 2020) (www.reuters.com/investigates/special-report/usa-jails-privatization/).
124
See Grant Smith, Jail Deaths in America: Data and Key Findings of Dying Inside, Georgia PDF, Reuters (Oct.
16, 2020) (www.reuters.com/investigates/special-report/usa-jails-graphic/).
125
Grant Smith, Jail Deaths in America: Data and Key Findings of Dying Inside, Georgia PDF, Reuters (Oct. 16,
2020) (www.reuters.com/investigates/special-report/usa-jails-graphic/).
123

20

Figure 3: Transcript of Recorded Call on March 28, 2014 from the Chatham County
Detention Center 126
Mother: Matthew?
Loflin: Hey.
Mother: Okay, listen I found out everything I can. I’m gonna try to get… um, I’m
having lawyers and the sheriff and all this other kind of shit trying to make it so I can
come in there and see you. I am trying also to get you out of there and get you . . .
Loflin: I need to go to the hospital.
Mother: I know…
Loflin: I’m gonna die in here.
Mother: I know you are Matthew. I am doing everything I can to get you out, and so I
can see you. Hello?
Loflin: Yeah.
Mother: They’re doing everything they can.
PHONE: There are 15 seconds remaining.
Loflin: I’ve been coughing up blood and my feet are swollen. It hurts, Mom.
Mother: I know Matthew, I know what is wrong with you. I told you this would
happen. I love you, Matthew. They are going to cut us off…
Loflin: I love you too. I’m gonna die in here.
III.

Conclusion

DOJ has failed to effectively implement DCRA 2013, undermining the effective,
comprehensive, and accurate collection of custodial death data. These failures were preventable.
DOJ’s September 16, 2022 report, released pursuant to President Biden’s executive order, is an
PSI staff transcribed an audio clip that was first released by Reuters. Jason Szep, et al., Special Report: U.S. Jails
are Outsourcing Medical Care – and the Death Toll is Rising, Reuters (Oct. 26, 2020)
(www.reuters.com/investigates/special-report/usa-jails-privatization/); see also Loflin_audio.wav
(hdrive.google.com/file/d/14H7slAViw_KZmDdDkQYivsB9Yj5rUwWR/view).
126

21

important step to improve DOJ’s efforts to better implement DCRA 2013. 127 DOJ must act
quickly to remedy the outstanding implementation failures, and Congress should continue to
monitor DOJ’s implementation efforts.

Department of Justice, Office of the Attorney General, Department of Justice Implementation of the Death in
Custody Reporting Act of 2013 (Sept. 16, 2022) (https://bja.ojp.gov/doc/DOJ-Implementation-of-DCRA.pdf).
127

22