[Senate Hearing 117-536]
[From the U.S. Government Publishing Office]







                                                        S. Hrg. 117-536

               UNCOUNTED DEATHS IN AMERICA'S PRISONS AND
                  JAILS: HOW THE DEPARTMENT OF JUSTICE
         FAILED TO IMPLEMENT THE DEATH IN CUSTODY REPORTING ACT

=======================================================================

                                HEARING

                               before the

                PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                                 of the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS


                             SECOND SESSION

                               ----------                              

                           SEPTEMBER 20, 2022

                               ----------                              

        Available via the World Wide Web: http://www.govinfo.gov

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs





[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]











                                                        S. Hrg. 117-536

               UNCOUNTED DEATHS IN AMERICA'S PRISONS AND
                  JAILS: HOW THE DEPARTMENT OF JUSTICE
         FAILED TO IMPLEMENT THE DEATH IN CUSTODY REPORTING ACT

=======================================================================

                                HEARING

                               before the

                PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                                 of the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS


                             SECOND SESSION

                               __________

                           SEPTEMBER 20, 2022

                               __________

        Available via the World Wide Web: http://www.govinfo.gov

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs






[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                             _________
                              
                 U.S. GOVERNMENT PUBLISHING OFFICE
                 
50-237 PDF               WASHINGTON : 2023




















        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware           ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire         RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona              RAND PAUL, Kentucky
JACKY ROSEN, Nevada                  JAMES LANKFORD, Oklahoma
ALEX PADILLA, California             MITT ROMNEY, Utah
JON OSSOFF, Georgia                  RICK SCOTT, Florida
                                     JOSH HAWLEY, Missouri

                   David M. Weinberg, Staff Director
                    Zachary I. Schram, Chief Counsel
                Pamela Thiessen, Minority Staff Director
                     Laura W. Kilbride, Chief Clerk
                    Ashley A. Howard, Hearing Clerk


                PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                     JON OSSOFF, Georgia, Chairman
THOMAS R. CARPER, Delaware           RON JOHNSON, Wisconsin
MAGGIE HASSAN, New Hampshire         RAND PAUL, Kentucky
ALEX PADILLA, California             JAMES LANKFORD, Oklahoma
                                     RICK SCOTT, Florida

                  Douglas S. Pasternak, Staff Director
                 Brian Downey, Minority Staff Director
                    Daniel Eisenberg, Senior Counsel
             Scott Wittman, Minority Deputy Staff Director
                    Patrick Hartobey, Senior Counsel
                      Kate Kielceski, Chief Clerk   
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Ossoff...............................................     1
    Senator Johnson..............................................     4
    Senator Padilla..............................................    11
Prepared statements:
    Senator Ossoff...............................................    37
    Senator Johnson..............................................    41

                               WITNESSES
                         Tuesday, July 26, 2022

Vanessa Fano, Sister of Jonathan Fano, Brother Died in the East 
  Baton Rouge Parish Prison in Louisiana.........................     6
Belinda L. Maley, Mother of Matthew Loflin, Son Died in the 
  Chatham County Detention Center in Georgia.....................     7
Andrea Armstrong, Professor of Law, Loyola University New Orleans 
  College of Law.................................................     8
Maureen A. Henneberg, Deputy Assistant Attorney General for 
  Operations and Management, Office of Justice Programs, U.S. 
  Department Justice.............................................    21
Gretta L. Goodwin, Ph.D., Director of Homeland Security and 
  Justice, U.S. Government Accountability Office.................    22

                     Alphabetical List of Witnesses

Armstrong, Andrea:
    Testimony....................................................     8
    Prepared statement...........................................   200
Fano, Vanessa:
    Testimony....................................................     6
    Prepared statement...........................................    42
Goodwin, Gretta L., Ph.D.:
    Testimony....................................................    22
    Prepared statement...........................................   289
Henneberg, Maureen A.:
    Testimony....................................................    21
    Prepared statement...........................................   276
Maley, Belinda L.:
    Testimony....................................................     7
    Prepared statement...........................................   149

                                APPENDIX

Staff Report.....................................................   309
Congressman Robert C. Scott Statement for the Record.............   334
ACLU Statement for the Record....................................   336
Leadership Conference and POGO Statement for the Record..........   345
Responses to post-hearing questions for the Record:
    Ms. Henneberg................................................   355

 
                 UNCOUNTED DEATHS IN AMERICA'S PRISONS 
                    AND JAILS: HOW THE DEPARTMENT OF 
     JUSTICE FAILED TO IMPLEMENT THE DEATH IN CUSTODY REPORTING ACT  

                              ----------                              


                      TUESDAY, SEPTEMBER 20, 2022

                                   U.S. Senate,    
              Permanent Subcommittee on Investigations,    
                    of the Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:30 p.m., in 
room 342, Dirksen Senate Office Building, Hon. Jon Ossoff, 
Chairman of the Subcommittee, presiding.
    Present: Senators Ossoff, Hassan, Padilla, Johnson, and 
Scott.

             OPENING STATEMENT OF SENATOR OSSOFF\1\

    Senator Ossoff. The Permanent Subcommittee on 
Investigations (PSI) will come to order.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Ossoff appears in the 
Appendix on page 37.
---------------------------------------------------------------------------
    Today, the Subcommittee continues our bipartisan work 
investigating conditions in prisons, jails, and detention 
centers across the United States. I thank the Ranking Member 
for his cooperation.
    In July, we released findings of corruption, abuse, and 
misconduct in the Federal prison system, and questioned the 
now-former Director of the Federal Bureau of Prisons (BOP). 
Today, after a 10-month bipartisan investigation, we can reveal 
that 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 (DOJ) 
is failing to do so. This failure undermines efforts to address 
the urgent humanitarian crisis ongoing behind bars across the 
country.
    Our investigation has revealed that last year alone, 
according to the Government Accountability Office (GAO) 
analysis that I requested, the Department of Justice failed to 
identify at least 990 deaths in custody, nearly 1,000 uncounted 
deaths, and the true number is likely much higher.
    We will hear today from Belinda Maley and Vanessa Fano, 
whose loved ones died preventably while in custody--in both 
cases, sons and brothers who died while they were pretrial 
detainees, having been convicted of no crime. We will hear 
their grief and anger, a grief and anger shared by many 
thousands of Americans whose loved ones needlessly suffered and 
died while incarcerated.
    We will hear from Professor Andrea Armstrong of Loyola 
University New Orleans to understand why and how DOJ's failure 
to oversee prisons and jails undermines Americans' civil 
rights.
    We will hear from Dr. Gretta Goodwin of the Government 
Accountability Office, a legislative branch agency that 
provides investigative services to Congress, which analyzed at 
my request the death in custody data that DOJ collected in 
2021, and who will publicly report those findings today for the 
first time.
    We will question Ms. Maureen Henneberg, Deputy Assistant 
Attorney General, about the Department's failure since 2019 to 
implement the Death in Custody Reporting Act (DCRA), a failure 
that has undermined Federal oversight of conditions in prisons 
and jails nationwide, and therefore, undermined Americans' 
human and Constitutional rights.
    Members of Congress swear to ``support and defend the 
Constitution of the United States,'' to defend the 
constitutional rights of all Americans, in my State and every 
State, including the rights of those who are incarcerated.
    We are here today because what the United States is 
allowing to happen on our watch in prisons, jails, and 
detention centers nationwide is a moral disgrace. As Federal 
legislators serving on the nation's preeminent investigative 
panel, it is our obligation to investigate the Federal 
Government's complicity in this disgrace.
    Therefore, it is our obligation to ask what tools the 
Department of Justice is using to protect the Constitutional 
rights of the incarcerated, to hold DOJ accountable when it 
fails to use those tools, and to furnish better, more powerful 
tools with which the Department can defend civil rights and 
civil liberties.
    There are some bright spots. For example, I was encouraged 
when Assistant Attorney General Kristen Clarke announced a DOJ 
investigation of conditions in Georgia's horrific State prisons 
almost one year ago today.
    But it has become clear in the course of this investigation 
that the Department is failing in its responsibility to 
implement the Death in Custody Reporting Act, that is, the 
Department is failing to determine who is dying behind bars, 
where they are dying, and why they are dying, and therefore 
failing to determine where and which interventions are most 
urgently needed to save lives.
    In 2000, and then again in 2014, Congress passed the Death 
in Custody Reporting Act, tasking DOJ with the collection and 
analysis of custodial death data nationwide. DOJ itself 
describes this law as, quote, ``an opportunity to improve 
understanding of why deaths occur in custody and develop 
solutions to prevent avoidable deaths.''
    For nearly 20 years, DOJ collected and published this data, 
an invaluable resource for the Department, for the Congress, 
and for the public. Then, abruptly, that publication stopped, 
and our investigation followed.
    We found that in recent years, and over multiple 
administrations, the Department's implementation of this law 
has failed, despite clear internal warnings from DOJ's own 
Inspector General (IG) and DOJ's Bureau of Justice Statistics 
(BJS).
    For example, in the first quarter of fiscal year (FY) 2020, 
the Department did not capture any State prison deaths in 11 
States or any jail deaths in 12 States and the District of 
Columbia. In fiscal year 2021 alone, according to GAO analysis 
produced at our request, the Department failed to identify 
nearly 1,000 deaths, and my assessment is the true number is 
likely much higher. Of those recorded, 70 percent of the 
records were incomplete, and 40 percent of records failed to 
capture the circumstances of death.
    The Department of Justice has failed to collect complete or 
accurate State and local death data for the past 2 years, and 
failed to report to Congress how data about deaths in custody 
can be used to save lives, a report required by law that is now 
6 years past due and, we recently learned, is not expected to 
be produced for another 2 years.
    PSI's investigation also found that the Department has no 
plans to make State and local death data public again, despite 
the obvious public interest in this transparency.
    Now today's hearing may dive at times into arcane 
discussions of administrative regulations or the close parsing 
of legislative text, and those discussions are relevant.
    If the Department has concluded in 2022, 8 years after this 
law was reauthorized, that it is incapable of successfully 
implementing it, I am surely willing to work with them to help 
fix that.
    But this hearing is about something more fundamental. 
Americans are needlessly dying, and are being killed, while in 
the custody of their own government. In our July hearing 
focused on the Federal prison system, we revealed that Federal 
pretrial detainees have been denied proper nutrition, hygiene, 
and medical care; endured months of lockdowns with limited or 
no access to the outdoors or basic services; and had rats and 
roaches infesting their cells.
    We revealed that Federal inmates killed themselves while 
the basic practices of suicide prevention and wellness checks 
were neglected--abusive and unconstitutional practices by the 
Federal Government that likely led to loss of life in Federal 
facilities.
    We revealed that the Bureau of Prisons, an agency of the 
Department of Justice, was warned for years by its own 
investigators of corruption and misconduct in its own facility, 
of a ``lack of regard for human life'' by its own personnel.
    Today, we will hear about the experiences of Americans in 
State and local prisons and jails, Americans entitled to 
Constitutional rights no matter whether they are incarcerated, 
no matter whether they are incarcerated. We will hear about 
Americans who died in custody, many of whose deaths and causes 
of death are not being counted by the Federal Government, as 
the Federal Government is bound to count them. The same Federal 
Government obligated to defend their constitutional rights.
    Before I yield to the Ranking Member, and with Ms. Maley's 
permission, we are going to listen to an audio clip of the last 
phone call that she shared with her son while he was jailed, a 
pretrial detainee who was never convicted of any crime.
    I want to warn those who are tuned in across the country 
that this is a disturbing clip. While this audio plays, I ask 
that we imagine how we might feel to be on either end of this 
call. Please play the audio.
    [Beginning of Audio Recording.]
    Mother: Matthew?
    Loflin: Hey.
    Mother: OK, listen I found out everything I can. I am going 
to try to get . . . um, I am 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 am 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: Yes.
    Mother: They are doing everything they can.
    PHONE: There are 15 seconds remaining.
    Loflin: I have 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 am gonna die in here.
    [End of Audio Recording.]
    Senator Ossoff. The crisis in America's prisons, jails, and 
detention centers is ongoing and unconscionable. The Department 
of Justice and the Congress must treat this as the emergency to 
constitutional rights that it is.
    Senator Johnson, I yield to you.

              OPENING STATEMENT OF SENATOR JOHNSON

    Senator Johnson. Thank you, Mr. Chairman. You are correct. 
That is very difficult to listen to. Ms. Maley, Ms. Fano, our 
sincere condolences for the loss of your loved ones. I cannot 
imagine how difficult it is for you to listen to that.
    First of all, let me enter my prepared opening remarks into 
the record.\1\ Much of what I prepared would be a repeat of 
what the Chairman just laid out.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Johnson appears in the 
Appendix on page 41.
---------------------------------------------------------------------------
    I think many people might question what equity does the 
Federal Government have in how State and local governments run 
their prisons. I think we just heard the equity right there.
    As the Chairman laid out, there are issues of civil rights 
and basic civil liberties, the presumption of innocence, the 
right to fair trial, a speedy trial, and the rights to be given 
proper care when in custody.
    I want to commend the Chairman for doggedly pursuing the 
truth here. I think you are certainly experiencing the 
frustration I have experienced as chairman of the full 
Committee doing investigations, and simply having the 
departments and the agencies pretty well ignore our oversight 
requests.
    The American people deserve the truth here. The American 
people deserve to understand what is happening in Federal 
Government agencies. I do not know whether these things can be 
prevented from more rigorous Federal Government oversight, 
congressional oversight, exposure, but it is just the right 
thing to do.
    Mr. Chairman, I appreciate your pursuit of these truths. I 
have certainly been appreciative of the fact that we have been 
able to work on this cooperatively. Specifically in terms of 
this issue right here, I think it is interesting. The original 
law passed in 2000 did produce information. I have a report 
that is 40-some pages long. It is chock full of information. I 
know it expired, but the Department of Justice continued to 
provide this information to inform Congress, inform the 
American public.
    Then Congress changed the law, they updated the law, and 
put funding attached to it with penalties. Then something went 
haywire. You are talking about the exact legislative text, 
which agency can collect the data versus one that cannot. It is 
all bureaucratic BS, if you ask me, but it happened, and so we 
lost the transparency. It does not look like the Department of 
Justice is particularly interested in providing that 
transparency now, and that is serious issue. I do not 
understand it.
    But listen, I am going to continue to cooperate with you to 
try and get those answer because I think Ms. Fano, Ms. Maley, I 
think you deserve those answers, and hopefully some of this 
congressional oversight can do more than assist us in passing 
new laws. Hopefully it can save lives. I wish that could have 
been the case with your loved ones.
    Thank you, Mr. Chairman.
    Senator Ossoff. Thank you, Ranking Member Johnson.
    The Subcommittee's findings, which form the basis for 
today's hearing, are laid out in a bipartisan staff report, and 
I ask unanimous consent that this report be entered into the 
record.\1\
---------------------------------------------------------------------------
    \1\ The Staff Report appears in the Appendix on page 309.
---------------------------------------------------------------------------
    We will now call our first panel of witnesses for this 
afternoon's hearing. Ms. Vanessa Fano is the sister of Jonathan 
Fano, who died in the East Baton Rouge Parish Prison in 
Louisiana. Mrs. Belinda L. Maley, is the mother of Matthew 
Loflin, who died in the Chatham County Detention Center (CCDC) 
in Georgia. Professor Andrea Armstrong is a Professor of Law at 
Loyola University, New Orleans College of Law.
    The Subcommittee is deeply grateful for your presence, 
testimony, and courage in appearing today. We look forward to 
your testimony. The hearing record will remain open for 15 days 
for any additional comments or questions by Members of the 
Subcommittee.
    The rules of the Subcommittee require all witnesses to be 
sworn in, so at this time I would ask you to please stand and 
raise your right hand.
    Do you swear that the testimony you are about to give 
before this Subcommittee is the truth, the whole truth, and 
nothing but the truth, so help you, God?
    Ms. Fano. I do.
    Ms. Maley. I do.
    Ms. Armstrong. I do.
    Senator Ossoff. Thank you. The record will reflect that all 
witnesses answered in the affirmative. Please be seated.
    Your written testimonies will be printed for the record in 
their entirety. We ask that you try to limit your remarks to 
around 5 minutes.
    Ms. Fano, we will hear from you first, and you are 
recognized for your opening remarks. A kind reminder to all 
three of you, when addressing the Subcommittee please make sure 
that your microphones are on, as indicated by the red light. 
Thank you, Ms. Fano.

TESTIMONY OF VANESSA FANO,\1\ SISTER OF JONATHAN FANO, WITNESS' 
BROTHER DIED IN THE EAST BATON ROUGE PARISH PRISON IN LOUISIANA

    Ms. Fano. Thank you, Chairman Ossoff and Ranking Member 
Johnson, for the opportunity to testify before you today, and 
thank you to the Committee staff whose tireless work made my 
appearance possible here today.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Fano appears in the Appendix on 
page 42.
---------------------------------------------------------------------------
    No amount of time can truly heal what I share with you 
today.
    Jonathan Louis Fano is my brother. Jonathan was so kind. He 
felt guilty even so much as killing a bug. He once took the bus 
downtown just to babysit our cousin's kids, even though it was 
his own birthday. Jonathan would spend hours upon hours 
listening to my problems and would do anything to support me. 
But at the time he needed the same support, no one responsible 
for his care, custody, and control gave it to him.
    Jonathan suffered from bipolar disorder and depression, for 
which he sought professional help and support from his family. 
He was never any type of threat or danger to us or to others.
    In October 2016, Jonathan was arrested in Baton Rouge, 
Louisiana, while having a mental breakdown, and taken to East 
Baton Rouge Parish Prison. In his 10 weeks in pretrial 
detention, Jonathan never received a mental evaluation. After 
cutting his wrists he was placed in isolation.
    Despite our frequent phone calls, our family was repeatedly 
told that Jonathan did not want to speak to us. It was only on 
Christmas that we heard from him. Jonathan told us he was not 
allowed to call us. During that phone call, we learned about 
Jonathan's attempt on his own life. We could not get the 
details before the for-profit phone system cut off our call. 
Even though we provided more funds, we were not able to 
continue the call.
    We trusted the system. My family trusted the system when it 
provided us Jonathan's court date. My family flew across the 
country only to discover we were provided the wrong date. We 
trusted his public defender would be advocating for Jonathan's 
mental health, care, and release, and the advice to wait just a 
little longer in custody to resolve the case. We trusted the 
Baton Rouge's Sheriff's Office, who confirmed Jonathan was 
receiving the care he needed in detention.
    On February 21, 2017, Jonathan hanged himself with a 
bedsheet in his cell. When we finally saw his lifeless body the 
first time in 10 weeks he was handcuffed to an intensive care 
unit bed. It was only then we realized how wrong we were to 
place our trust in this system, which told us there was no 
fault after their own internal investigation of Jonathan's 
death.
    It is only through our own insistence over the past 5 years 
that we have come to learn how hard Jonathan tried to receive 
help, how belittled he was, how no one believed him, how so 
many other people have died in the same jail, under the same 
conditions.
    Each time I tell Jonathan's story he feels farther away. I 
worry for the day where I cannot distinctly remember his voice 
or his warmth or even his face.
    I tell you Jonathan's story for every family who has 
experienced the same, and I hope in doing so we can improve our 
beloved nation and prevent this from ever happening to another 
family again.
    Please accept my respectful request to enter further 
written testimony into the record. Thank you.
    Senator Ossoff. Thank you, Ms. Fano, and the rest of your 
written testimony will be so entered, without objection. Thank 
you for your testimony.
    Ms. Maley, we will now hear from you. Do not feel bound by 
the precise time on the clock. We will accommodate the time you 
need to share your story, and you are recognized for your 
opening statement.

  TESTIMONY OF BELINDA L. MALEY,\1\ MOTHER OF MATTHEW LOFLIN, 
  WITNESS' SON DIED IN THE CHATHAM COUNTY DETENTION CENTER IN 
                            GEORGIA

    Ms. Maley. Thank you, Chairman Ossoff, and Ranking Member 
Johnson, for the opportunity to testify before you today, and 
thank you to Committee staff whose work made my appearance here 
today possible.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Maley appears in the Appendix on 
page 149.
---------------------------------------------------------------------------
    Mothers and sons have a special bond, a bond that no one 
should ever be able to break. Tragically, in my case, that bond 
was broken. It was broken by a for-profit medical provider that 
brought a painful death on my only son, my only child.
    My son, Matthew, was scared and alone in the Chatham 
County, Georgia, Detention Center on a nonviolent drug offense. 
Matthew was suffering from cardiomyopathy, which the for-profit 
medical provider ignored. Studies show that the prognosis for 
people with untreated cardiomyopathy is bleak, and Matthew was 
never given any treatment. The for-profit medical provider had 
no intentions of treating him because cardiology appointments 
outside of the jail would cut into their profit margin.
    One of his jailers called his pain and anguish, ``fussy.'' 
Matthew knew he was dying. He told me many times by phone and 
in a single jail visit that, ``I needed to get him out of 
here'' and that he ``did not want to die here.'' The pure 
horror of Matthew's voice made me feel as though I was dying as 
well.
    Matthew died a slow, painful death over the course of 
weeks. He was too sick to take phone calls or visits after the 
one time I got to see him in jail. I never got to hold him, to 
tell him how much I loved him, or pray with him. The next time 
I got to see Matthew he had already suffered brain injury after 
being resuscitated three times by the jail staff.
    My last visit with him was to take him off of life support, 
where he was still handcuffed to an intensive care unit (ICU) 
bed and under 24/7 supervision by a corrections officer. After 
32 years of life with my only son, our bond was broken, and no 
one, not the health provider, not the infirmary staff, the 
Sheriff's Office, or the district attorney, was willing to 
help.
    They did take time to exact one last indignity upon Matthew 
before his death, issuing him a personal recognizance bond 
after he was brain dead, so his death would not count as an in-
custody death. Not a day goes by that I do not think of what 
Matthew went through.
    In closing, Matthew's story might not be over. I will 
continue to spread awareness of this problem for as long as I 
am able. With over two million people in our prisons and jails, 
there are more millions of mothers, fathers, siblings, and 
friends who are in this same or worse situation. This should 
not be ignored. That is why enforcement of the Death in Custody 
Reporting Act is so important and could be a tool to hold the 
for-profit jail and prison medical providers accountable for 
unnecessary deaths, like Matthew's and others.
    I ask respectfully to enter further written testimony into 
the record. Thank you.
    Senator Ossoff. Thank you, Ms. Maley, and without objection 
your written testimony will be so entered into the record. Ms. 
Fano and Ms. Maley, thank you for sharing your difficult, 
deeply personal stories with the Subcommittee.
    Professor Armstrong, you are now recognized for five 
minutes to present your opening statement.

  TESTIMONY OF ANDREA ARMSTRONG,\1\ PROFESSOR OF LAW, LOYOLA 
             UNIVERSITY NEW ORLEANS COLLEGE OF LAW

    Ms. Armstrong. Chairman Ossoff, Ranking Member Johnson, and 
Members of the Subcommittee, thank you for holding this hearing 
and for the opportunity to testify. Thank you also to the staff 
who worked incredibly hard to pull this together as well as the 
courage of the families who are appearing as witnesses today.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Armstrong appears in the Appendix 
on page 200.
---------------------------------------------------------------------------
    My name is Andrea Armstrong, and I am a law professor at 
Loyola University, New Orleans. I teach in the areas of 
criminal and constitutional law, and I research incarceration 
law and policy. I have visited prisons and jails across the 
country, and I participate in audits of these facilities for 
their operations and adherence to best practices.
    My students and I created incarcerationtransparency.org. It 
is a project and a website that collects, publishes, and 
analyzes deaths in custody in Louisiana prisons, jails, and 
detention centers. At the time that we started that project, 
and continuing today, the type of information that we wanted 
was not available, namely individual-level death records as 
well as facility-level death records, so that we could identify 
which facilities in Louisiana were actually the most troubled.
    As we heard today from other witnesses, there are a lot of 
reasons to be concerned when a death in custody occurs. In 
addition to the impact on families and communities, deaths in 
custody may signal broader challenges in a facility. It is 
impossible to fix what is invisible and hidden. As Justice 
Brandeis wrote, ``Sunlight is the best of disinfectants; 
electric light the most efficient policeman.'' Increasing 
public transparency on deaths in custody is a critical step 
toward ultimately reducing deaths in custody.
    I would like to share with you a graph\1\ that I shared 
with your staff, and it is on page 28 of Exhibit 1. This chart 
helps us understand why transparency is so critical. The 
percentage of suicides that happened in solitary confinement, 
also known as isolation, restrictive housing, or segregation, 
is highlighted in pink. What you can see is we are looking at 
the location of suicides by the type of facility. The first 
column is Department of Corrections--those are prisons--the 
second is juvenile facilities, the third is jails that are 
locally operated, and the fourth is private.
---------------------------------------------------------------------------
    \1\ The chart referenced by Ms. Armstrong is in her testimony that 
appears in the Appendix on page 200.
---------------------------------------------------------------------------
    What you can see in pink is that 43 percent of all suicides 
in Louisiana jails occurred in solitary confinement. Compare 
that to only 7 percent in our State prisons. Of the 3 youth 
suicides that happened between 2015 and 2019 in Louisiana, 2 
out of 3 occurred when these youth were confined, alone, and in 
segregation.
    This finding should prompt review of staffing, discipline, 
security, and mental health protocols in the jails where the 
suicides occurred. But unfortunately, due to changes in the 
Federal collection of data on deaths, we will no longer be able 
to identify patterns like these. That is because the Department 
of Justice no longer collects information on incident locations 
within a prison or jail. It also does not collect information 
from facilities where there were zero deaths, meaning it will 
be harder for facilities to learn from each other what works 
and what does not work.
    Changes in what is collected is not the only problem. In 
addition, the Department of Justice is undercounting deaths. 
For deaths in 2020, Louisiana reported 6 total deaths to the 
Bureau of Justice Assistance (BJA). In contrast, Loyola law 
students identified 180 deaths in 2020 in Louisiana prisons and 
jails, and multiple sheriffs informed our students that they 
were no longer required to report deaths in custody for Federal 
data collection. If Louisiana's experience is similar to those 
of other States, 2020 will be the first year in almost two 
decades in which the Department of Justice cannot tell us who 
is dying behind bars and why.
    Congress has a range of tools available to help increase 
transparency, which ultimately, I hope, will reduce in-custody 
deaths. The work of your Committee is vital, and academic 
researchers like myself stand ready to assist and to support as 
needed.
    Thank you.
    Senator Ossoff. Thank you, Professor Armstrong, and thank 
you again to all three for your powerful testimony today. I 
will begin with questions, and I would like to begin with you, 
Professor Armstrong, unless Senator Padilla, do you have an 
imminent----
    Professor Armstrong, I would like to begin with you. 
Explain how deaths in custody, as data, can be a proxy or an 
indicator for conditions in specific facilities.
    Ms. Armstrong. What we know when we look at the data is we 
look for patterns in what is happening. For example, the slide 
that I shared on suicides, what that tells us that there are 
deep differences between where suicides are occurring, which 
makes me want to look at the policies that are in place. Were 
staff doing observation rounds near the areas of segregation? 
Discipline--why were people put in solitary confinement, and 
for what types of offenses, and for how long, because we know 
of the harmful effects of solitary confinement and ways in 
which it can be both create and aggravate existing serious 
mental illness, in many cases leading to suicide.
    We also want to think about what are the mental health 
protocols. Are they doing the required visual checks? Are they 
doing the suicide watch observations that are required under 
best practices?
    Deaths in that way can be the tip of the iceberg for 
understanding what is happening in that facility and their 
adherence to best practices.
    Senator Ossoff. Professor, you are the founder of 
Incarceration Transparency. What does this organization do, in 
a nutshell?
    Ms. Armstrong. It is more of a project than an 
organization, but it is my students and me. For the past 3 
years now about 60 students, we collect, publish, and analyze 
individual-level records of death. But I think in terms of 
transparency, the goal is we have a searchable database where 
you can go and look up any record of death and try and 
understand what is happening at your local facility, in 
particular. It is often because of this database that family 
members reach out to me for information about the deaths of 
their loved ones.
    Senator Ossoff. Law students making public record requests 
are able to capture this data. Correct?
    Ms. Armstrong. Yes. Technically, you do not have to be a 
lawyer to file a public records request, but it certainly 
helps. My students do this every single year.
    Senator Ossoff. In your view, is this work that the Federal 
Government should be doing?
    Ms. Armstrong. Absolutely. It is me and 20 law students 
once a year. It would be much better if the Federal Government 
collected this level of information.
    Senator Ossoff. Therefore, indeed work that is eminently, 
or should be eminently within the capacity of the United States 
Department of Justice.
    Ms. Armstrong. Absolutely.
    Senator Ossoff. Thank you, Professor.
    Ms. Maley, thank you again for sharing your family's 
personal tragedy with the public today. I would like to ask you 
what has motivated you to take this step?
    Ms. Maley. The biggest motivation, and it will serve no 
justice for my son--there is none--the biggest motivation I 
have is everyone knows somebody that is affected by drug use, 
alcohol use, mental illness, and sometimes pure carelessness, 
that could end with you being pulled over by your local law 
enforcement agents and put in jail. It is a horrible thing for 
me to think, maybe my next-door neighbor may be going to the 
store, and get pulled over for something. A minor infraction, 
as we all know, can put you in jail and jeopardize your life.
    I would like some transparency. I would like to be able to 
know that our justice system is doing the right thing according 
to our health care providers in these institutions.
    Senator Ossoff. Thank you, Ms. Maley.
    Ms. Fano, thank you as well for sharing your family's 
story, as difficult as I can imagine it must be, and for your 
powerful testimony. What is your message, or call to action for 
members of this Subcommittee, the Senate, and for the folks at 
the Department of Justice?
    Ms. Fano. Had adequate care been given to my brother, 
Jonathan Louis Fano, I do believe that I would still have him 
in my life. I believe that if we provide the resources that are 
necessary to inmates who struggle with mental illness, far less 
tragedies will occur. It is a matter of acknowledging those 
mistakes and acknowledging that we can improve and be better so 
that such traumatic incidents will not occur, so that families 
will not have to deal with the horrible reality of rather than 
a loved one coming out of an institution more well-established 
and aware of how to integrate back into society, they come back 
in a casket.
    I ask that we acknowledge our mistakes and move toward a 
better future for everyone.
    Senator Ossoff. Thank you, Ms. Fano. At this time, with the 
Ranking Member's permission, I will yield to Senator Padilla 
for his questions.

              OPENING STATEMENT OF SENATOR PADILLA

    Senator Padilla. Thank you, Mr. Chairman. Thank you, 
Senator Johnson, for the accommodation. I have another meeting 
in a few minutes I need to get to. But I wanted to, first of 
all, thank you, Mr. Chair, for your ongoing diligence and 
oversight here, and I thank all three witnesses for 
participating.
    I do have a couple of questions for Professor Armstrong, 
but I wanted to begin with Ms. Fano, not only as a follow-up to 
the Chairman's question. I guess the follow-up--and then I will 
share the personal--the follow-up is, so if some of the clear 
recommendations were to be followed and there is more 
transparency and more true data sharing, how could that help 
your family, so many other families across the country, who 
have experienced similar tragedies?
    Ms. Fano. A big part of what occurred with our family 
involved our trust. Consistently, we were told to do things a 
certain way and that things were going correctly. We did not 
know how many incidents had occurred. Had we known, had we been 
disclosed the information of how horrendous the conditions are 
in that facilities and how few actually receive adequate care 
we would have insisted upon a different outcome.
    A lot of our decisions came from pure trust toward our 
system, toward the appointed attorney, as well as the staff 
members at that correctional facility.
    Should we change that? I do believe that other families 
might make the right decisions, might have more acknowledgment 
of the potential dangers, and with that acknowledgment can come 
change.
    Senator Padilla. Thank you. Thank you for sharing. Look, I 
know the data in front of us, the report that is being 
discussed spans from jails and folks that are pretrial to 
prisons, folks that have been convicted of a wide range of 
crimes, short sentences, long sentences, and everything in 
between. But that does nothing to take away fundamental human 
rights.
    I mentioned a minute ago that there are a couple of 
personal comments I wanted to share, and it begins with 
applauding you for being so forthcoming with your concern about 
mental health and mental health conditions. My wife is a mental 
health advocate. Our family is big on making sure we are 
undoing stigma and raising awareness. It is one thing to talk 
about it in the post traumatic stress disorder (PTSD) in the 
military context. It is another when it comes to mothers 
suffering from postpartum depression, or in the higher 
education space, right, stress on college campuses.
    Across the board, mental health was a big concern prior to 
the pandemic. We have all experienced a huge uptick during the 
Coronavirus Disease 2019 (COVID-19) pandemic, and it is 
important to recognize that whether it is jails, prisons, other 
institutions, there are no exceptions to that. Again, I come 
back to the human rights people deserve in terms of access to 
care, quality of care, and truth.
    The other piece, you grew up not too far from where I grew 
up. Very similar communities. Your story resonates, and I 
appreciate your courage to be here and to share.
    Professor Armstrong, following up on some of your work and 
some of the testimony you have submitted. In 2020, Reuters 
completed an investigation into how an estimated 5,000 people 
died in jails throughout the country in a single year, and that 
is jails. That is not counting prisons. These people died 
without ever having their case even heard at trial.
    The data is sadly clear and compelling. The U.S. 
correctional system occupies a space where class, race, gender, 
and a host of other factors influence how long or how demanding 
your time in custody will be. However, pretrial time spent in a 
correctional facility should never be a de facto death 
sentence.
    I noticed in your written testimony, and I will quote, ``A 
lack of transparency on deaths in custody undermines our 
nation's commitment to public safety.'' Could you walk the 
Subcommittee through how a detailed accounting of deaths in 
custody would better inform our policymaking here in Congress?
    Ms. Armstrong. Absolutely. First, the nationwide data from 
2000 to 2019 shows that 20 percent of deaths in custody were 
actually of people facing charges, meaning they had never had a 
trial. In Louisiana, 14 percent of our deaths were pretrial.
    But think about it this way. If community members do not 
trust the policing, the sheriffs, the facilities, and the fact 
that our system is capable of delivering justice, they are less 
likely to report crime, they are less likely to serve as a 
witness or to provide testimony in a criminal trial, and they 
are less likely to themselves feel protected by those same 
systems when they are a victim of trial.
    Public trust in our criminal justice institutions is 
fundamental. When we see the death penalty exacted without a 
judicial sentence, and where a person's probability of death is 
simply a factor of which facility they are assigned to, that 
undermines their trust and it undermines all of our safety.
    Senator Padilla. Thank you. A final question. In your 
written testimony again you listed a number of suggested 
amendments that you believe could be useful for better 
collecting data. It is one thing to share data, but if you are 
not collecting it on the front end, that is another issue.
    Among the suggestions you have made is that the Bureau of 
Justice Assistance collect information on incarcerated people's 
specific medical illnesses and preexisting conditions. Did you 
mean to include mental health conditions as well? Briefly 
elaborate on that.
    Ms. Armstrong. What we know from the prior, from BJS, 
right, so the earlier data, is they actually did collect mental 
health observation and practices, medical illnesses as well, 
although they only asked preexisting conditions for medical 
conditions. They did not ask for mental health.
    When I proposed reverting back to those categories that we 
used to collect data on, yes, that would include mental health 
as well as medical health.
    Senator Padilla. Thank you very much. Thank you, Mr. Chair.
    Senator Ossoff. Thank you, Senator Padilla. Ranking Member 
Johnson.
    Senator Johnson. Thank you, Mr. Chairman. Again, Ms. Fano 
and Ms. Maley, our sincere condolences. I cannot imagine how 
painful it is for you to have to relive this. I cannot imagine 
losing a child or a sibling, so again, thank you.
    I want to try and find out, because it sounds like, in both 
of your cases, you were certainly not given the kind of contact 
you would want with a loved one in trouble. You were pretty 
well blocked out. Let us start there. While your son, while 
your brother were alive, how many times were you able to see 
them or talk to them. We will start with Ms. Fano. 
Approximately.
    Ms. Fano. Of course. The only occasion where we were able 
to get a phone call through to my brother, after multiple 
attempts from multiple phone numbers, as my father, mother, 
siblings, myself had made attempts throughout the weeks, most 
likely every other day, essentially we would call and be told 
he did not want to call us. It was on Christmas. That was the 
only time that we ever received a phone call, and it was not 
even longer than 2 minutes.
    Senator Johnson. His total time in custody was how long?
    Ms. Fano. The total time in custody was from--can I just 
review?
    Senator Johnson. Again, just approximately.
    Ms. Fano. Ninety-one days.
    Senator Johnson. Ninety-one days. You believe he did want 
to talk to you, though.
    Ms. Fano. He had stated that he wanted to call.
    Senator Johnson. You believe prison officials were simply 
lying to you.
    Ms. Fano. My brother stated he had made attempts, and he 
had also written one letter to us, where he stated that he was 
not allowed to call us and he wanted to talk to us.
    Senator Johnson. Ms. Maley, what about in your case? How 
long was your son in custody, and how many times--when he went 
into custody he already had this health condition. Correct?
    Ms. Maley. I am going to assume so because cardiomyopathy 
does not happen overnight. It is a condition that alcoholics 
and drug addicts get because of the wear and tear on your 
heart, your vascular system.
    Senator Johnson. Right.
    Ms. Maley. With what I know and what I have investigated, 
untreated cardiomyopathy can advance rapidly. There are 
medications, which, it is not funny and I am shaking my head 
because it is unbelievable. It is also due to a fluid buildup, 
and people with heart issues and fluid retention issues are 
given a diuretic.
    Senator Johnson. Right. Your son should be alive today. But 
again, were you aware of this condition when he went into 
custody?
    Ms. Maley. No.
    Senator Johnson. OK. This was something that developed 
while he was in custody.
    Ms. Maley. Yes.
    Senator Johnson. How many times were you able to see him or 
talk to him while he was in custody?
    Ms. Maley. One time I got to see him.
    Senator Johnson. One time. This is over a span of how long 
again?
    Ms. Maley. Two and a half months.
    Senator Johnson. Two and a half months. Now following the 
death of your son and your brother, who are you able to talk to 
within the prison system, within government? What conversations 
have you had? I will go back to Ms. Fano. You or your family 
members.
    Ms. Fano. My mother and sister were actually able to see 
him one time, and they talked to the front desk staff. I am not 
quite sure the exact names for those individuals. Following 
when he hung himself we were in contact with numerous members 
from the facility, as they had to follow through with an 
investigation. I am not quite sure the exact names of all of 
those individuals, as my focus at the time was more on my 
brother rather than retaining those names.
    But we were in contact with those individuals following him 
hanging himself. The most consistent contact we had with that 
facility was after he had done that.
    Senator Johnson. Do you feel they gave you information, did 
they give you answers to what happened? Let me cut to the 
chase. Did they show compassion?
    Ms. Fano. No.
    Senator Johnson. You did not get any information. It was 
pretty well----
    Ms. Fano. They had called us. Because we are in L.A., they 
had an Los Angeles Police Department (LAPD) officer come, and 
the LAPD officer had a phone with him, and the other individual 
on the other line only spoke English. My mother speaks Spanish. 
He bluntly stated, ``Your brother hung himself.'' I asked him, 
``Is he going to be all right?'' He said, ``You have to get 
here. He most likely is not.'' I asked for more details but he 
stated they were going under investigation at this time.
    When we arrived, my mother and I were the first to arrive, 
and there was on all fronts, no compassion whatsoever. The 
individual who was guarding him had no compassion. The staff 
member who led us to the facility had no compassion, just 
presented us to his body, connected to multiple wires and 
machines that assured he could still function bodily wise. They 
stated that only his brainstem was functional, due to how long 
he had hung himself and how little oxygen his brain had 
received. Every other part of him, every bit of him that would 
retain memory, that was him essentially, was no longer present.
    Senator Johnson. I am sorry to ask you to relive this. I 
really am. I wish I did not have to do this.
    Following that horrible day, did you have further 
conversations with any officials, or was that pretty much your 
last contact?
    Ms. Fano. We stayed a few days as we were waiting for 
magnetic resonance imaging (MRI) results, so they were in a bit 
of contact with us. There was always security by his bedside. 
He was handcuffed to the bed, despite the results of him being 
brain dead. At the time of passing, a staff member had to be in 
the room with us to ensure he did die. I do believe that we had 
to even wait for him to come, even though we were all present 
and ready. We had to wait for him.
    Following this, we received a call. I am unsure of how many 
days later or maybe it was a few weeks, but we received a call 
stating that they had found that there was nothing that went 
wrong, that the investigation was just about clear. They did 
nothing wrong with his case.
    Following this, my family and I could not accept this and 
we sought more information and an investigation by our own 
means. But the last real statement that they said to us was 
that they did nothing wrong.
    Senator Johnson. They played it by the book.
    Ms. Fano. Yes.
    Senator Johnson. Mr. Chairman, would you like me to 
continue this?
    Senator Ossoff. Yes.
    Senator Johnson. Reluctantly. Ms. Maley, have you talked to 
authorities following the passing of your son?
    Ms. Maley. No.
    Senator Johnson. No authorities whatsoever?
    Ms. Maley. No, sir.
    Senator Johnson. Nobody reached out to you?
    Ms. Maley. No, sir.
    Senator Johnson. Have you tried to contact people?
    Ms. Maley. They ignored our phone calls. The only person 
that talked to us was before he passed. The only person that 
told us anything, and very little at that, was the man that 
worked for health care. I would call there every day, maybe 
twice a day, to check on him, and his only response was, ``He 
has 24-hour care and he is doing fine.''
    Senator Johnson. He tried to reassure you.
    Ms. Maley. Excuse me?
    Senator Johnson. He tried to reassure you, basically.
    Ms. Maley. Yes, sir, which now I know that that was not 
true.
    Senator Johnson. No expression of sympathy, no 
demonstration of any compassion whatsoever, in either one of 
your cases.
    Ms. Maley. No, sir.
    Senator Johnson. I do not have any further questions right 
now.
    Senator Ossoff. Thank you, Senator Johnson. In part, Ms. 
Fano and Ms. Maley, I think that the Subcommittee should help, 
in so far as we can, to honor and to remember Jonathan and 
Matthew, and their lives are having an impact here today, that 
I hope the Ranking Member and I will work together to ensure 
results and change.
    In remembering and honoring their lives, Ms. Fano, can you 
tell us a little bit more about Jonathan, what he was like, 
what he loved, how he lived.
    Ms. Fano. Jonathan was my older brother, and with that he 
was very protective of me. Any time I had problems he would 
talk to me about things and give me tips and tricks on how to 
go about school projects and how to make new friends even. We 
used to play silly little video games together. I would always 
get stuck in certain boxes and he would jump in and help me. He 
used to be so into Marvel and DC, and even now I think of all 
of these amazing things that he never got to witness, that he 
even said he wanted to. He wanted to see adaptations of 
different comics that he liked.
    He was incredibly empathetic toward other people and 
animals. He was vegetarian for a good portion of his life. He 
did not like the concept of eating an animal. But even with 
that, for those of us who were not vegetarian, he would still 
make us food and assure that we were eating properly, and he 
was the glue that held us together.
    Even when we were frustrated at each other, he would 
attempt at keeping peace when he could. Now we know that there 
is a hole missing, and nothing will ever properly fill that 
hole again. But that was the kind of person that he was.
    Even despite his mental illness he had a story. He had a 
life. He had a home. He had wanted so badly to come home 
because we were a family, and he loved his family. Over and 
over again I told him, when I was younger, one of my biggest 
fears was losing him. He promised me, over and over, that we 
were family and he would not. But now rather than Vanessa and 
Jonathan it is just me, and I am here because of him and his 
legacy.
    Senator Ossoff. Ms. Fano, how old were you when all this 
happened?
    Ms. Fano. I was still in college. It was happening during 
finals. That was one of the reasons I was not able to see him 
that last time, and I regret it because I did not think it was 
going to be my last chance to see him. I believe I was 19 at 
the time, because that was 5 years ago.
    Senator Ossoff. Ms. Fano, you mentioned that your mother 
did not speak English so you were translating for your family, 
19 years old, throughout this ordeal. Is that right?
    Ms. Fano. I was the one that had to tell her because she 
could not understand what he was saying, so I had to tell her 
that Jonathan hung himself and that he was not going to be OK. 
Because she kept asking, ``Is he going to get better? What did 
they say?'' I had to explain to her that he was not, and that 
when we were going to get there he was not going to be well.
    I had to explain when we arrived, because even then they 
did not have anyone on staff, or try to bring anyone on staff 
that could speak Spanish. Essentially through that time it was 
us having to translate things about his condition, about his 
stay, about what happened. I remember asking, ``What do you 
mean, he hung himself for that long and they did not know? How 
did they not know?''
    Senator Ossoff. Thank you, Ms. Fano.
    Ms. Maley, would you be willing to share a few words about 
Matthew?
    Ms. Maley. Of course. I was very proud of my son. He was my 
heart. Growing up he was rambunctious, amazed by things, 
involved. He was raised in the church. He participated in the 
church. He loved working on cars. He was involved in car shows. 
He liked camping and water-skiing and traveling.
    Matthew was not perfect, by any means. He was a drug 
addict. I tried to get him help, and for that there was help, 
but Matthew was unwilling, for some reason. He found it easier 
or maybe he had mental illness that brought that on. But in 
saying that, we all know people that have problems, and you are 
there for them, unconditionally. I would have given my life for 
him. I begged God to take me instead of my son.
    He had a lot to offer, like Vanessa's brother and Linda's 
son. He never met the love of his life. He never had children. 
There were so many things that he is never going to experience 
in his life. I look at my friends and I am jealous of what they 
have and what I could have had, and what Matthew could have 
had, but he made poor choices. The choices that he made, I have 
to live with, and it is the most difficult thing that a person 
can go through.
    I am lost without him. I have pictures. I lost all my 
voicemails from him, so the shock of listening to his voice 
again, in the worst way possible, is just too much.
    Senator Ossoff. Ms. Maley, thank you for honoring him with 
your testimony today.
    Professor, you study policy. You study statistics. This is 
not about statistics. The statistics, well collected and 
analyzed, can be a tool to save lives, to spare other parents 
and brothers and sisters this agony. I would like for you, 
please, to reflect on that, and share why you believe it is so 
essential for the Federal Government to fix this.
    Ms. Armstrong. I think the first part is, one of the things 
that we do in addition to collecting these records is we try to 
do something of what you all are doing here today. We 
memorialize the lives of people who died in the New Orleans 
jail, without talking necessarily about their death but for 
public understanding of who these people are. They were 
overwhelmingly Saints fans. They were poets. They were football 
players. They had job opportunities. It is important to 
recognize what we, as a community, lose, that all of us lose 
when people die in custody.
    The other part of this that is important in terms of the 
Federal data collection is both of these deaths that we are 
talking about today happened in jails. Jails, there are over, I 
think, about 3,000 of them, and I have yet to see an exact list 
of every jail that we have in this country. They report only to 
themselves.
    The Federal Government has unique authority to be able to 
collect this information from the jails in ways that members of 
the community cannot. Because they are so spread out, because 
they are all individual fiefdoms, doing their own rules, their 
own policies, their own practices, which may differ from 
facility to facility, it is the unique power of the Federal 
Government to be able to collect that information, and jails 
are where the conditions of incarceration are most hidden from 
our communities.
    Senator Ossoff. Is it fair to say, Professor, that, 
generally speaking, for each death there is more suffering, 
more illness perhaps poorly treated, and more folks inside in 
agony?
    Ms. Armstrong. Yes. I think the suffering that we are all 
experiencing today by honor the lives lost is not just the 
families. It is not just the people. I am also reminded that we 
have large numbers and members of our community who work in 
these facilities, who witness these traumatic incidents, 
because that is their employment. They too are traumatized.
    Other incarcerated people often witness these deaths. They 
may be the ones who first report it, who sound the alarm, who 
bang on the steel door to alert somebody that the person next 
to them or in their cell is dead. That is also continuing 
trauma that accrues.
    I would suggest that the harm to the families is enormous, 
but it is actually a harm that we all suffer as a community and 
as a society.
    Senator Ossoff. Ms. Fano, before your brother was jailed 
did you know anything about East Baton Rouge Parish Prison, the 
jail?
    Ms. Fano. No. We did not know.
    Senator Ossoff. Reuters, a news organization, conducted a 
study of jail deaths over the last decade, and they found that 
from 2009 to 2019, there were 45 deaths in that facility, an 
average of 4.5 per year, more than double the national average. 
Do you think that is information that should be made public and 
transparent?
    Ms. Fano. Yes. Absolutely.
    Senator Ossoff. Ms. Maley, the same news organization, 
Reuters, in the same study, found that 22 people, over the same 
period, died in custody at Chatham County Detention Center in 
our home State of Georgia, and that 50 percent of those deaths 
were due to illness. Now we know from your son's story that 
deaths due to illness can also be deaths due to illness 
untreated, poorly treated, or neglected. Do you believe that is 
the kind of information that should be made public, 
transparently?
    Ms. Maley. Yes.
    Senator Ossoff. Ranking Member Johnson, do you have any 
further questions?
    Senator Johnson. Yes, I do, Mr. Chairman.
    Professor Armstrong, you say you have 20 students and you 
do this. How many man hours do you put into the report you 
generate?
    Ms. Armstrong. I cannot even count them.
    Senator Johnson. Is it over the course of a week or 2 weeks 
or the entire semester?
    Ms. Armstrong. For every fall semester I have approximately 
20 students. This semester I have 23. This is a semester-long 
project because they file the public records request but often 
there is not a response under the public records law of 
Louisiana. They have to constantly go after these facilities--
by email, by phone calls, sometimes driving there to get them.
    Senator Johnson. We understand the process.
    Ms. Armstrong. Sorry.
    Senator Johnson. Do you focus on one State, one county? 
What are you doing here?
    Ms. Armstrong. We only do it in the State of Louisiana, and 
we do every single detention facility in the State that we are 
aware of.
    Senator Johnson. Whenever anybody dies there is a coroner 
report, there is a death report, there is something. Is that 
what you are doing your Freedom of Information Act (FOIAs) on?
    Ms. Armstrong. No. The jails have to report to the local 
coroner, but unless you know to file the public records request 
for that, that is difficult to get, one. Two, when we do file a 
public records request on coroners they often do not categorize 
them as in-custody deaths, so they are difficult for the 
coroner themselves to identify and then respond.
    What we do is that we file directly with the administrator 
of that facility, and what we ask for is the information that 
they reported to the Federal Government.
    Senator Johnson. Have you seen the 2002 to 2019 report? It 
has a lot of statistics to it.
    Ms. Armstrong. Yes.
    Senator Johnson. What we really do need is we need those 
individual death reports that show what actually happened. We 
are talking, I think at most, was it 3,000? Senator Padilla 
said 5,000 deaths per year. Now, within a population of 1.5 
million people, there will be deaths from natural causes and 
that type of thing. You are probably talking about a universe 
of a couple thousand deaths that you are really researching 
here, deaths in custody. Correct?
    Ms. Armstrong. That is correct. About 200 deaths per year 
is what we find in Louisiana.
    Senator Johnson. In Louisiana. But I am talking about 
nationally now.
    The reason I am asking you how many man hours you put into 
this, obviously I am data-driven kind of guy, being an 
accountant. If you have to solve problems you have to 
understand what the information is and how difficult it is to 
gather. I would not think, for the Department of Justice that 
has--does anybody know how many employees it has got? It is 
quite a few.
    You could put a couple of folks doing this, and obviously 
we gave them resources to do this, and it would not be that 
difficult to literally gather the death reports on a couple 
thousand individuals, and if they are not getting it--they 
started doing this in the year 2000--they will start refining 
the process, and say, OK, this is not working, or we are not 
getting from that State. To this date we do not have--how many 
States did not report? We do not know which States. The 
Department of Justice will not tell us which States they did 
not get information from. Go figure. What is that, a national 
security issue?
    The point I am trying to make here is I think, together 
with all of you and the Chairman, this is important information 
to have. It really should not be that difficult to gather, 
particularly when you have been at it for 22 years. There was a 
break--and again, with the next panel we will analyze why this 
break occurred, and quite honestly, how ridiculous it is that 
it did occur, and why the ball was dropped here.
    Mr. Chairman, I think I have gotten what I need from 
Professor Armstrong to move on to the next panel. But again, I 
want to close with my sincere condolences and my sincere thanks 
for sharing your tragic stories with us. It is important. We 
need to know these things. Thank you.
    Senator Ossoff. Thank you, Ranking Member Johnson, Ms. 
Fano, and Ms. Maley, on behalf of the whole Subcommittee please 
accept our gratitude for your presence, your courage, our 
condolences for your loss, and the loss that your families have 
suffered. We are so appreciative of the extraordinarily open 
and honest conversation that we have had today, as you have 
helped to support our efforts to bring compassion and 
accountability and respect for human life into public policy.
    Please know that Jonathan and Matthew are having a 
tremendous impact here in this room today, and on behalf of the 
staff and the Members of the Subcommittee we will continue 
working to ensure that that impact is magnified through change.
    Professor, thank you for sharing your expertise with us 
today and for your ongoing work to bring transparency and 
accountability to this system. It is deeply appreciated.
    That will conclude the first panel and witnesses are 
excused with the Subcommittee's gratitude. The Subcommittee 
will take a brief recess as we prepare the second panel. Thank 
you.
    [Recess.]
    The Subcommittee will now call our second panel of 
witnesses for this afternoon's hearing. Ms. Maureen A. 
Henneberg serves as Deputy Assistant Attorney General for 
Operations and Management in the Office of Justice Programs 
(OJP) for the U.S. Department of Justice. Dr. Gretta L. Goodwin 
serves as Director of Homeland Security and Justice for the 
U.S. Government Accountability Office.
    It is the custom of the Subcommittee to swear in all 
witnesses so at this time I would ask you to please stand and 
raise your right hands.
    Do you swear that the testimony you are about to give 
before this Subcommittee is the truth, the whole truth, and 
nothing but the truth, so help you, God?
    Ms. Henneberg. I do.
    Ms. Goodwin. I do.
    Senator Ossoff. Let the record reflect that the witnesses 
answered in the affirmative. You may return to your seats.
    We will be using a timing system today. Your written 
testimonies, in their entirety, will be printed in the record. 
We would ask that you try to limit your oral testimony to 5 
minutes.
    Ms. Henneberg, we will hear from you first. Thank you.
    You may proceed.

TESTIMONY OF MAUREEN A. HENNEBERG,\1\ DEPUTY ASSISTANT ATTORNEY 
   GENERAL FOR OPERATIONS AND MANAGEMENT, OFFICE OF JUSTICE 
              PROGRAMS, U.S. DEPARTMENT OF JUSTICE

    Ms. Henneberg. Thank you, Chairman Ossoff and thank you 
Ranking Member Johnson and distinguished Members of the 
Subcommittee. I am grateful for the opportunity to speak to you 
today about our work at the Department of Justice to implement 
the Death in Custody Reporting Act, and the ways we work with 
our State, local, and tribal partners to improve the conditions 
of incarceration. We believe that gathering data about deaths 
in custody is a noble and necessary step toward a transparent 
and legitimate justice system. There is no more solemn 
responsibility than the protection of life, and DCRA is 
designed to help us obtain information we need to assist State 
and Federal authorities in fulfilling this responsibility.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Henneberg appears in the Appendix 
on page 276.
---------------------------------------------------------------------------
    Since the original statute was enacted more than two 
decades ago, the Department of Justice, through its Office of 
Justice Programs, has worked hard to collect data on deaths in 
prisons and jails and during arrests. As I know this committee 
appreciates, it is a major undertaking to gather this 
information from 56 States and territories who, in turn, rely 
on reports from thousands of prisons, local jails, and law 
enforcement agencies. But we firmly believe that it is well 
worth the effort.
    While the need for DCRA reporting is unquestioned by the 
Department, the current process deserves to re-evaluated. For 
many years following DCRA's enactment in 2000, our Bureau of 
Justice Statistics collected data called for by DCRA, which it 
continued to do even after the law expired 6 years later. All 
told, BJS has published 40 reports on the topic, which have 
provided a wealth of information on causes of death and 
characteristics of the facilities where the deaths occurred.
    Then, in 2013, an update to DCRA was introduced. Signed 
into law the following year, the new law expanded the original 
DCRA. It mandated reporting by Federal law enforcement 
agencies. It added a study requirement focused on using the 
data to identify ways to reduce deaths in custody. Perhaps of 
greatest consequence, it gave the Attorney General the 
discretion to reduce funding to noncompliant States under the 
Edward Byrne Memorial Justice Assistance Grants (JAG) program. 
Through the JAG program, OJP provides over $273 million 
annually and funding for general purpose, law enforcement, and 
criminal justice activities throughout the Nation.
    This last requirement posed a dilemma. As a Federal 
statistical agency, BJS is prohibited from using its data for 
any purpose other than statistics or research. Though DCRA of 
2013 was well intentioned it had unintended negative 
consequences for the State and local collections. For one, 
since DCRA currently requires the Department to receive all 
information centrally from States, we can no longer collect 
data directly from State and local agencies as we once did.
    Second, the penalty provided under DCRA of 2013 actually 
has the potential to punish States and local agencies that 
comply with the law. If, for example, local agencies decline to 
report to their State, that States reporting to the Department 
will be incomplete. Even though the State may submit all of the 
data it actually received, it could still suffer the funding 
penalty. Furthermore, since these grants pass through States to 
local jurisdictions, even the local agencies that fully report 
their information would feel the effects of a penalty applied 
in their State.
    Finally, we can no longer assign the collection to BJS, 
which had achieved a nearly 100 percent response rate while it 
administered the program.
    We are working hard to achieve more comprehensive reporting 
from States. We continue to provide training and assistance to 
States to improve reporting, and we are developing new methods 
for assessing State compliance and providing feedback to help 
improve reporting.
    In the meantime, we look to Congress to help us 
programmatically improve the quality and completeness of data, 
and we have a proposal for how to do that. For instance, we are 
asking to collect data directly from local agencies and open 
sources and enable us to restrict the funding penalty to 
noncompliant agencies instead of applying it statewide.
    We are also proposing a new grant program to help better 
equip agencies across the country to collect and report on 
deaths in custody.
    The Death in Custody Reporting Act is one of the many vital 
tools in restoring the full integrity of our justice system. 
The Department provides tens of millions of dollars in 
resources to States, local communities, and tribes to improve 
the way incarcerated people are treated and to support efforts 
to reduce arrest-related deaths through law enforcement 
training and programs focused on building law enforcement and 
community trust. Examples of OJP's work are provided in my 
written testimony.
    We look forward to working with all of you to meet these 
challenges. I thank you for your time, and I am happy to take 
any questions you may have.
    Senator Ossoff. Thank you, Ms. Henneberg.
    Dr. Goodwin, you are now recognized for your opening 
statement.

TESTIMONY OF GRETTA L. GOODWIN,\1\ PH.D., DIRECTOR OF HOMELAND 
  SECURITY AND JUSTICE, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

    Ms. Goodwin. Chair Ossoff and Ranking Member Johnson, I 
appreciate the opportunity to discuss the actions DOJ has taken 
to address the data collection and reporting requirements in 
the Death in Custody Reporting Act of 2013, and the extent to 
which DOJ has studied and used the data collected from States.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Goodwin appears in the Appendix 
on page 289.
---------------------------------------------------------------------------
    As already discussed, DCRA was enacted in 2014 to encourage 
the study and reporting of deaths in custody. Federal agencies 
and States that receive certain Federal funding are required to 
report this information to DOJ. DOJ is to study the Federal and 
State data, examine how the information can be used to reduce 
deaths in custody, and report its findings to the Congress.
    In 2015, DOJ began collecting data on the deaths of people 
in the custody of Federal law enforcement. As of fiscal year 
2020, DOJ reported 2,700 deaths in Federal custody. While the 
agency collects the same information at the State and local 
level, it has not actually reported on these deaths.
    DOJ began collecting information from States on death in 
custody about 3 years ago. Agency officials told us they plan 
to continue collecting State data, but they have not said 
whether or how they will use the information to address deaths 
in custody.
    DOJ cites missing and/or incomplete data from States as one 
of the reasons why they have not studied the State information. 
We found similar concerns when we examined the data. For 
example, of the 47 States that submitted data, only 2 submitted 
all the required information. Some States did not account for 
all deaths in custody.
    Using publicly available reports, we identified nearly 
1,000 deaths that occurred during fiscal year 2021, that States 
did not report to DOJ. Four States did not report any deaths, 
yet we found that at least 124 deaths had occurred in those 
States.
    DOJ has noted that it is a top priority to improve the 
quality and completeness of State reporting. In 2016, the 
agency acknowledged that determining State compliance with DCRA 
would help improve the quality of the data, and they have a 
goal to help ensure States comply with DCRA. However, as of 
this month, September 2022, DOJ still has not determined 
whether States have complied. While DOJ collects data from 
States, DCRA does not require DOJ to publish State data, and 
the agency has no plans to do so.
    Importantly, after DOJ's DCRA data collection efforts 
began, it discontinued a longstanding program that collected 
and published data on deaths of people in State and local 
correctional institutions, the Mortality in Correctional 
Institutions program. DOJ had used these data to publish 
reports and provide statistical information on deaths in 
correctional institutions. This published information allowed 
Congress, researchers, and the public to view and study the 
data.
    While the Mortality in Correctional Institutions report was 
made publicly available, the DCRA report may not be available 
to the public. This lack of transparency would be a great loss 
in the public's understanding of deaths in custody.
    Given that 1.5 million people were incarcerated in State 
prisons and local jails at the end of 2020, statistics on 
deaths in custody are a valuable resource for understanding 
mortality in the criminal justice system. DOJ has made some 
progress toward addressing what it calls a profoundly important 
issue, but significant work remains because right now DOJ and 
States are expending resources to compile a national dataset 
that may not be studied or published, potentially missing an 
opportunity to inform practices to help reduce deaths in 
custody.
    We are encouraging Congress to consider whether DCRA should 
be amended to ensure that DOJ uses the data it collects from 
States for recurring study and reporting to Congress and the 
public, and to help enhance the quality of the data, we are 
recommending that DOJ develop a plan to determine State 
compliance with DCRA.
    Chair Ossoff and Ranking Member Johnson, this concludes my 
remarks. I am happy to answer any questions you have.
    Senator Ossoff. Thank you, Dr. Goodwin and Ms. Henneberg, 
for your opening remarks and for your presence here today.
    I want to begin, Dr. Goodwin, by making sure that it is 
clear what you found. I think in some ways the most powerful 
and alarming piece of data that you and your team unearthed at 
the request of the Subcommittee is that in 2021, you found 
nearly 1,000 deaths in State or local facilities that the 
Department did not capture. You found them through a review of 
open sources. Is that correct?
    Ms. Goodwin. That is correct, Senator. The way that 1,000 
deaths kind of breaks out--and actually it is 990, but we say 
nearly 1,000--so the way that breaks out is 341 of those deaths 
that we discovered were in State correctional facilities. How 
did we get there? We basically used publicly available data. 
Some States, when they are doing their annual statistical 
reporting, they provide that information. We went through and 
did as thorough of an analysis as we could to get to the 341.
    Then the remaining deaths, the 649 deaths, again we used 
publicly available data and we used a couple of databases that 
collect information on deaths that happen when someone is 
placed under arrest or when a death happens in custody. That is 
how we arrived at the nearly 1,000 deaths. But for the most 
part a lot of this was publicly available data.
    One more thing I forgot to add. For the 341 deaths, it was 
publicly available data, and we had access to some of the DCRA 
records, and we went through and tried to do some matching.
    Senator Ossoff. Thank you, Dr. Goodwin. Nearly 1,000 deaths 
uncounted last year alone.
    Ms. Henneberg, I do want to first of all point out, this is 
not a political or a partisan issue. The cascade, the debacle, 
the decline in the Department's ability to collect and produce 
high-integrity data has unfolded over several years and 
multiple administrations. This is not a partisan issue. We 
appreciate your presence here today to help us sort through 
these issues.
    You have been working at the Office of Justice Programs for 
20 years and leading operations in management for the past 7. 
Correct?
    Ms. Henneberg. I have been at the Office of Justice 
Programs for 32 years. I have been part of the leadership team 
since February 2014 as the Deputy Assistant Attorney General 
for Operations and Management, overseeing our business offices.
    Senator Ossoff. Thank you, Ms. Henneberg. Your office is 
responsible for the implementation of DCRA. Correct?
    Ms. Henneberg. The Office of Justice Programs, our Bureau 
of Justice Assistance at this time is overseeing the reporting 
from the States. That is correct.
    Senator Ossoff. Yes. Thank you, Ms. Henneberg.
    As we have discussed, 1.5 million people are incarcerated 
in State prisons or local jails. Thousands die every year. Why 
is it important, in brief please, for the Department to study 
and report on deaths in custody?
    Ms. Henneberg. The Department shares your goals, Chairman 
Ossoff, to improve the data that is being reported, the 
accuracy, the quality, the completeness of the data. This data 
is extremely important. It is critical to understanding deaths 
in custody, understanding the relationship between the deaths 
in custody and the policies and practices of State jail, law 
enforcement agencies.
    Senator Ossoff. I agree, Ms. Henneberg. Here are some 
quotes from bipartisan Members of Congress, Representatives and 
Senators, about the purpose of DCRA.
    It would bring ``a new level of accountability to our 
nation's correctional institutions.'' It would ``provide 
openness in government.'' It would ``bolster public confidence 
and trust in our judicial system.'' It would ``bring additional 
transparency.''
    Do you agree that these are among the purposes of this data 
collection?
    Ms. Henneberg. The Department agrees that there is a 
critical value in all of these data to collect the data from 
the States, to analyze the data, to present findings so that we 
can better understand deaths in custody, so we can determine 
whether there are strategies to reduce deaths in custody.
    Senator Ossoff. Thank you, Ms. Henneberg.
    The Bureau of Justice Assistance, a component agency within 
the Office of Justice Programs--and those who are tuned in 
across the country will have to indulge and tolerate some 
acronym chaos here--but the Bureau of Justice Assistance 
started collecting State and local death data in 2019. The 
Bureau of Justice Statistics, which had previously collected 
this data, in fact for two decades collected this data, with 
success, analyzed the data that the Bureau of Justice 
Assistance collected, in 2020, and produced a report in May 
2021.
    It identified some significant issues that BJA did not 
capture any State or prison deaths in 11 States, or any jail 
deaths in 12 States and the District of Columbia. That from 
October to December 2019, BJA missed at least 592 deaths.
    Were these results concerning to the Department of Justice?
    Ms. Henneberg. The Department of Justice, over the 2, 3 
years that we have been collecting the data, we have seen the 
underreporting from States. Under DCRA 2013, States are having 
to collect data from their local agencies, and they are 
centrally reporting to BJA. The States are reporting great 
challenges. I think GAO's report will show this, and we have 
heard the same thing from our States. The States have no 
leverage to compel their local agencies to report the data.
    Senator Ossoff. Thank you, Ms. Henneberg. I appreciate your 
perspective on that State-local issue. My question is a 
specific one, if you will please. When BJS, your statistical 
office, having reviewed the first quarter of collection 
undertaken by BJA, reported to the Office of Management and 
Budget (OMB) and to the Department that BJA had missed State 
prison deaths in 11 States, jail deaths in 12 States, that from 
October to December of that first period when BJA was 
undertaking this collection, that it missed 592 deaths, was 
that concerning? Surely that was concerning. You were 
transitioning from one agency to another. The prior agency was 
telling you it is not working. Was that concerning?
    Ms. Henneberg. It is very concerning that there is the 
underreporting, and it is widespread across all the States. It 
is not just in certain areas.
    Senator Ossoff. OK. Thank you, Ms. Henneberg. It was 
concerning. In response to those findings by BJS, what did the 
Department of Justice do to repair and improve its data 
collection methodology so those problems would not persist?
    Ms. Henneberg. The current Administration, the current 
Department, we are focusing on fixing the problems and the 
obstacles that we have observed with the reporting under DCRA 
2013. We are presenting legislative proposals to amend DCRA so 
that we can address issues that we believe are contributing to 
the underreporting. Having States serve as the central 
repository and the central reporter is certainly contributing 
to----
    Senator Ossoff. Ms. Henneberg, you will have to forgive me, 
but we are trying to understand, with precision, what unfolded 
within the Department that led to a significant decline in the 
integrity of the data that the Department was collecting. I am 
looking for a precise answer to a very particular question.
    In the first few months when BJA took this over from BJS, 
BJS continued collecting and then they compared datasets. BJS, 
your statisticians, your folks who specialize in this, they 
raised a big red flag. They said what BJA is doing is not 
working.
    My question is, in response to that specific information, 
that warning, what action was taken to improve BJA's 
methodology? Not generally, not broadly, not legislative fixes 
that are being sought now. What action was taken then?
    Ms. Henneberg. Thank you for the question. I think it is 
important to describe when BJS was collecting the data they 
were able to go directly to local agencies, local correctional 
institutions, jails, and collect that data. Under DCRA 2013, 
BJA was presented with working with the States' central 
reporters, which is a significant contributor to the 
underreporting and the incomplete data.
    BJA has worked with a training and Training and Technical 
Assistance (TTA) provider, providing direct technical 
assistance to the States to review their data that is coming 
in, identifying ways they can improve it. We have provided 
trainings to the States. We have provided one-on-one technical 
assistance with the States to help them think through their 
data collection strategies, to identify areas where there is 
underreporting so that we can----
    Senator Ossoff. Ms. Henneberg, we do not have unlimited 
time here and I am not getting a precise answer to that 
question. I will have to circle back.
    I am going to yield now to Ranking Member Johnson and I 
will return for a second round in a moment. Thank you.
    Senator Johnson. Thank you, Mr. Chairman. Ms. Henneberg, 
can you bring your microphone a little bit closer to your 
mouth?
    I want to know how many people are working on this within 
the Department of Justice.
    Ms. Henneberg. Our Bureau of Justice Assistance is a grant-
making agency so their primary function is grant-making.
    Senator Johnson. How many people are working on providing 
this data? How many people? Is it 10? Is it 3 dozen? How many 
people?
    Ms. Henneberg. I do not know the answer. I will go back and 
we can look at how many people are working on----
    Senator Johnson. I want to know how many people were 
working in the Bureau of Justice Statistics and then I want to 
know how many people in the Bureau of Justice Assistance, OK? I 
want to know how many people.
    Ms. Goodwin, when you say you got publicly available 
records, what are you talking about there? Are you talking 
death certificates? Are you talking about reports that States 
and local governments publish and you were able to tap into 
those things?
    Ms. Goodwin. I will say, Senator, it is a little bit of 
both. For some States, when they report their deaths, that 
information shows up in like an end-of-year annual statistical 
supplement. We basically did a Google search to see what we 
could find.
    Senator Johnson. How many people did you have at GAO take a 
look at this?
    Ms. Goodwin. Two.
    Senator Johnson. You had two people, over what length of 
time?
    Ms. Goodwin. From May to September, May 2022 to September 
2022.
    Senator Johnson. OK. What is that, about 5 months?
    Ms. Goodwin. Yes.
    Senator Johnson. You had two people, and with two people 
working for a few months you determined that we were missing 
close to 1,000 death reports, because you were able to find 
them just with open-source reporting, basically.
    Ms. Goodwin. That is correct. A lot of it was open-source 
reporting. A lot of it, publicly available data. Some of the 
databases that do collect this information, the non-DOJ 
databases that would collect it.
    Senator Johnson. Do either of you know approximately how 
many deaths occur in custody within State and local jails every 
year?
    Ms. Goodwin. Unfortunately, we do not, and that is----
    Senator Johnson. I mean, just ballpark. I am not talking 
precise right now. I am talking ballpark. Is it a couple 
thousand?
    Ms. Henneberg. BJS says in 2019, in local jails there were 
1,200 deaths.
    Senator Johnson. I got that local. What about State?
    Ms. Henneberg. State and Federal was about 4,200.
    Senator Johnson. Why do you combine State and Federal and 
not State and local? It is not a trick question. It is a 
question. It is a curiosity. Because we normally separate 
Federal, and then you have State and local. You did it the 
other way. Why?
    Ms. Henneberg. Local jails is a different type of facility 
than Federal and State prison.
    Senator Johnson. But is not State prison different than 
Federal prison?
    Ms. Henneberg. Correct.
    Senator Johnson. OK. You have probably a couple thousand, 
2,000 to 3,000 prisoners dying in custody in State and local 
prisons. The interesting thing, as I was going through here, I 
assumed this was going to be State and local, but it kept 
saying local, and it is only local. Why did you issue this 
report chock full of information, by the way, statistics, on 
only local? Why did you not combine it with State?
    Ms. Henneberg. I am sorry, Senator Johnson. What report are 
you referring to?
    Senator Johnson. The whole purpose of DCRA is to determine 
the deaths in custody in State and local jails. Correct?
    Ms. Henneberg. Correct.
    Senator Johnson. When you publish a paper on deaths, 
mortality, 2000 to 2019, why did you only do local? Why did you 
not do State and local, because that was the whole purpose of 
DCRA?
    Ms. Henneberg. In 2019, BJS did publish State and Federal 
deaths.
    Senator Johnson. OK. Weird combination.
    I think my point here is that we are talking about a pretty 
manageable amount of information. With a little bit of 
dedication from the bureaucracy, now I have it, of 117,000 
people in the Department of Justice, a bill that was passed in 
2000 and reauthorized in 2013--so obviously you realized 
Congress wanted this information--you were collecting some of 
it and then you kind of stopped.
    I heard the explanation that when Congress passed the 
reauthorization they tied it to funding and there is a penalty 
there so all of a sudden the Bureau of Justice Statistics could 
no longer handle that. That is bureaucratic impediments. I have 
got that.
    But it would not seem like it would be that much of a heavy 
lift. We will find out. I really do want to know how many 
people in BJS were working on providing this information, and 
then how many people in BJA were charged with that.
    You would have thought in a meeting or two you could have 
combined your efforts and said, ``This is what we did, and you 
ought to do the same thing,'' which is the question the 
Chairman is trying to get at. Where was the breakdown here?
    I will ask you, where was the breakdown? Because it seems 
like BJS was able to collect this information, and all of a 
sudden, for whatever bureaucratic impediment, they had to turn 
that over to BJA. What was so hard about a pretty smooth 
handoff?
    Ms. Henneberg. This department is focused on fixing and 
improving the data collection, so we are focused on how we 
can----
    Senator Johnson. You have been focusing on it how many 
years? You have utterly failed. Literally, you have utterly 
failed. This is not that hard. GAO, two people, over a few 
months, got us better statistics than the Department of Justice 
did for how many years? We do not even know what States were 
not reporting, the 11 and 12. You were not even able to answer 
that question from staff.
    What is the impediment to getting information from States? 
You have 50 States. You get a couple of people. Put them on it 
full-time. They start talking to these States. You go, this 
information is missing. Over the course of 22 years I would 
have thought this information-gathering process would have been 
pretty well honed and these reports would have been automatic. 
You probably could have put one person on it, part-time.
    What is wrong with bureaucracies? Why can they not 
accomplish the simplest of tasks, and why will you not be 
transparent and honest with why you are not able to do it? I am 
not asking for answers to these things, just rhetorical 
questions, but do you have any response?
    Ms. Henneberg. Senator Johnson, I do. The response that I 
gave in my oral statement and that I have tried to reiterate 
here is that DCRA 2013 provides for a different reporting 
structure. That reporting structure has left the States with 
little to no leverage or incentive to get the information from 
local agencies and law enforcement agencies. We are working 
with----
    Senator Johnson. Did they not actually increase the 
incentives? Did they not attach funding to it, and there is a 
penalty of not receiving funding if they did not, I did not 
think they had incentives in 2000. I think that was part of the 
issue with reauthorization, was it not, they actually put 
penalties to it? But it seems like they were far more 
successful with the prior law.
    Ms. Henneberg. The JAG penalties that are currently in DCRA 
2013 have unintended consequences. 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, even though they would be 
working in good faith with----
    Senator Johnson. I will say it does not surprise me that 
Congress might have screwed something up here, and we maybe 
should take a look at that. But we need to fully understand it 
first, exactly what happened. How are we collecting it under 
BJS? How are we collecting it under BJA? We need transparency. 
We need some help. This should not be so difficult to get this 
answer. This should not be so difficult to fix, to start 
getting the death reports. Quite honestly, I would want more 
information. I want the stories.
    By the way, were you listening to our witnesses on the 
first panel?
    Ms. Henneberg. I was not able to join the hearing but I did 
look at the victim list, and those are very heartbreaking 
stories.
    Senator Johnson. What I would suggest you do is you go back 
to the Department of Justice and you have anybody involved in 
this process get a clip of the testimony. I think that might 
incentivize you to get on this case and get this information. 
OK?
    Ms. Henneberg. Senator, we are proposing fixes, legislative 
changes to DCRA 2013 so that the Department can be in a better 
position and have the ability to----
    Senator Johnson. I come from the private sector. I would 
have this fixed in about 10 minutes. That it has taken you 
years is beyond comprehension, quite honestly. But we are going 
to have to do it the government way, but we ought to get to the 
bottom of this.
    Senator Ossoff. Thank you, Ranking Member Johnson. Dr. 
Goodwin, why is it important to have a full and accurate 
accounting of death in custody data?
    Ms. Goodwin. Senator, I will harken back to the previous 
panel where you asked them, and I would like to add onto the 
conversation when we think about collecting these types of 
statistics there are people at the end of these statistics. 
They are not just numbers. We are talking about people, and we 
are talking about people and their families.
    Collecting this information is useful to policymakers. 
First, it is useful to DOJ to help them better understand what 
is happening that might be causing these deaths, what 
modifications might need to be made, what changes might need to 
be made, is there training, what needs to happen in the 
correctional institutions to ensure that there are not any 
deaths?
    Then once that happens, informing the policymakers, what 
needs to happen? If there needs to be a change in policy, what 
needs to happen to ensure that these deaths do not keep 
occurring?
    Senator Ossoff. Thank you, Dr. Goodwin, and according to 
your analysis of DOJ's data from last year, we already 
discussed nearly 1,000 deaths that your team was able to 
identify through open sources uncounted in the DOJ data. Is it 
also the case that 70 percent of the death in custody records 
produced by States to the Department were incomplete, and 40 
percent of those records did not even include a description of 
the circumstances of death. Is that correct?
    Ms. Goodwin. That is correct, Senator. Under DCRA there are 
certain types of information that are supposed to be reported. 
One, the race, ethnicity, gender of the individual who is 
deceased, the location of the death that happen, what was 
occurring during that time. There are a number of different 
elements, shall we say, that should be reported under DCRA when 
they are making reports about what happened.
    When we looked at the data, as you said, 70 percent had X 
amount, 40 percent had X amount. That was a concern as well.
    I would also like to add, Senator, that our nearly 1,000 
deaths that we found, we believe that is an undercount. We were 
doing a very quick but thorough analysis based on what was 
available to us, but we are mindful that some of that 
information might not have been reported anywhere or might have 
been misreported. We do believe that is an undercount. It is 
another reason why we are calling on DOJ to do what they can to 
ensure State compliance with DCRA, so that we can have a more 
accurate picture of what is happening in these correctional 
institutions.
    Senator Ossoff. Let us crystallize those findings, and I am 
so grateful to you and your staff for undertaking that analysis 
at our request, for supporting this investigation, for your 
professionalism, and for your hard work. I want to condense 
this down to the key facts I think the public needs to hear.
    You found nearly 1,000 deaths last year alone uncounted by 
DOJ, and you believe it is likely a significant undercount. 
Seventy percent of the records they did collect were 
incomplete, and 40 percent of the records did not even include 
a description of the circumstances of death.
    Ms. Goodwin. That is correct.
    Senator Ossoff. The professor on Panel 1, Professor 
Armstrong, discussed how we cannot effectively intervene to 
remedy facility-level abuses, misconduct, poor conditions, poor 
health units, the kinds of things that lead to higher rates of 
death in those facilities, unless we know where the problems 
are. Do you agree with that, Dr. Goodwin?
    Ms. Goodwin. Yes, we do.
    Senator Ossoff. Do you agree that if we do not understand, 
in 40 percent of the records collected--again, putting aside 
nearly 1,000 records that were not collected at all, and 
perhaps many more--putting that aside, when 40 percent of the 
records do not even include a description of the circumstances 
of death, that the purpose of this collection to yield insight 
for policymakers so that we can intervene and save lives, is 
undermined?
    Ms. Goodwin. Yes. DCRA was put in place, DCRA was enacted, 
to deal with and minimize deaths in custody. Part of that data 
collection, once you have the data you have some idea of what 
might need to be done. I will also add that some States might 
be doing some really good things within their States. We just 
do not know because that data is not being collected.
    I would also like to add that even if the data were 
collected, what we found in our conversations with DOJ, they do 
not have any plans to publish the data. The data would be 
collected and what would be done with it is really the 
question.
    Senator Ossoff. That is a good segue, Dr. Goodwin. Let me 
ask you, Ms. Henneberg, please, about that. Why has DOJ ceased 
to publish this data after nearly 20 years of making this 
information public? Is there not an obvious and vital public 
interest in transparency here?
    Ms. Henneberg. Thank you for that question, Chairman 
Ossoff. DCRA 2013 provides that the States report the data and 
the Department will use that data to analyze data and study the 
data to determine what strategies we can use to reduce deaths 
as well as the relationship between policies, procedures, 
management actions relating to these deaths.
    Yes, the Department strongly agrees with GAO that we must 
strengthen how we collect data under DCRA, and I think our 
legislative proposal is aimed at fixing this.
    Senator Ossoff. Ms. Henneberg, I appreciate that. But my 
question is why DOJ ceased the publication of this data when it 
fulfills such a vital public interest?
    Ms. Henneberg. Thank you for the question. I think it is 
important to talk about that, from two perspectives, one a 
legal perspective as well as a data perspective. From the data 
perspective, the data, as we hear and as we agree with GAO and 
hearing from the States, there is significant underreporting, 
and providing that data would be misleading. It would not 
provide a full picture of what is happening with deaths in 
custody.
    Senator Ossoff. Ms. Henneberg, I am going to let you 
complete that answer, but I want to make sure I hear and 
understand what you are saying and in public hears and 
understand what you are saying. You are saying that you have 
ceased to publish that data because you no longer have complete 
and accurate data. Correct?
    Ms. Henneberg. The Department is working with the States, 
who are the central reporters of that data, to collect that 
data. The States are to collect that data from local agencies 
and local law enforcement. The States are challenged collecting 
that data, and we are working with the States through technical 
assistance. We are looking at open sources to identify those 
deaths that the States are not reporting, going back to the 
States and working with them to improve their data collection.
    Senator Ossoff. Ms. Henneberg, DOJ has ceased the 
publication of this data because the data is no longer of 
sufficient completeness, accuracy, and integrity to publish it. 
That is the first reason. You were going to give a second 
reason why you have ceased publication of the data.
    Ms. Henneberg. The second reason would be the data under 
DCRA 2013 is being collected to be analyzed and studied, and we 
are currently doing that. The National Institute of Justice is 
undertaking a multiyear effort to review the data as well as 
looking at other sources of data to be able to provide findings 
on relationships between deaths in custody, policies, practices 
of institutions.
    Senator Ossoff. Let us discuss that report, Ms. Henneberg. 
I understand what you are telling us is this data, which was 
published for 20 years, is no longer being published because of 
concerns about now the accuracy of the collection of the data, 
the completeness of the collection of the data.
    You mentioned, though, the broader report mandated by 
Congress in DCRA 2013. Correct?
    Ms. Henneberg. DCRA 2013 provides that the data is analyzed 
and studied. Correct.
    Senator Ossoff. That is right. DCRA required the Department 
of Justice to issue that report to Congress. I want to pivot 
for a moment to Dr. Goodwin and get her perspective on why this 
report is so important. This was a mandate that Congress gave 
to the Department to take the data that is being collected and 
then investigate it for insights that could yield solutions to 
reduce the incidence of death in custody. Correct, Dr. Goodwin?
    Ms. Goodwin. That is correct, and when we last spoke with 
DOJ in August 2022, they told us that they had not yet studied 
the data to determine how that information could be used to 
reduce deaths in custody. But it sounds like that is happening 
now.
    Senator Ossoff. OK. Thank you, Dr. Goodwin.
    Ms. Henneberg, the law required that report to be issued to 
Congress no later than December 2016. The Department has not 
yet issued that report. Correct?
    Ms. Henneberg. Correct. The Department----
    Senator Ossoff. We are now almost 6 years past the 
deadline. Right?
    Ms. Henneberg. The Department values that data, and we are 
studying it, and we are very eager to get the findings so that 
we can better understand deaths in custody and reduce deaths in 
custody that can be prevented.
    Senator Ossoff. Ms. Henneberg, the regular publication of 
this data, that BJS was previously collecting, has stopped 
because now, with BJA collecting, the data is not good enough 
to publish. We have established that.
    But this failure to report to Congress predates that 
transition. Back in 2016, when this report was due, BJS was 
still running the collection and still running the analysis. 
There is no excuse here that the data is not good enough, 
because BJS was doing a pretty good job, by most accounts, of 
collecting that data. Why is this report now 6 years late, and 
am I correct that the Department did not even award a contract 
to a contractor to produce this report until September 2021? Is 
that correct?
    Ms. Henneberg. That is correct for one piece of the study. 
Correct.
    Senator Ossoff. The Department did not award a contract to 
produce this study, and again, we are talking about studies and 
contracts and mandates. Let us bring this back to human beings. 
We are talking about a study whose purpose is to look at data 
about people dying in prisons and jails, and give policymakers 
at the Department of Justice and the Congress the insight and 
wisdom based on that data to prevent those deaths, to fulfill 
an urgent humanitarian purpose. That is why Congress gave that 
mandate to the Department.
    What you are telling me is that not only is the report now 
6 years late, but the Department did not retain a contractor to 
produce that report until 5 years after it was due. Why?
    Ms. Henneberg. Senator, thank you for that question, and it 
is a good question. BJA began collecting the data in fiscal 
year 2020, so October 2019, and data needed to be collected to 
study. That is what DCRA 2013 is calling for, collect the data 
and then study the data so that we can understand the deaths.
    Senator Ossoff. But it was due in 2016.
    How about, let us be forward-looking here. Can you give us 
a date certain when Congress will receive this report that is 
now 6 years overdue?
    Ms. Henneberg. There are two parts of that study. One we do 
have a draft, the first part, and it is discussed in our report 
that we put out last week, that will be available, we are 
estimating, by the end of calendar year 2022. The other is a 
multiyear effort by National Institute of Justice (NIJ) that is 
not only using the data that is being collected under DCRA 
2013, but also other sources. The data elements and the data 
being collected under DCRA 2013 is not sufficient to meet the 
purposes of the study and the scope of the study, so we are 
expecting that in 2024.
    Senator Ossoff. Eight years late. Thank you, Ms. Henneberg.
    Ms. Henneberg, as I mentioned in my opening remarks, and I 
am grateful for your testimony here today, I am here to work 
with the Department to get this right because ultimately 
getting this right is what matters because lives are on the 
line. This is not about shuffling paper and having these kinds 
of exchanges in rooms here in the Senate.
    This is about the Americans who are locked up, many of them 
pretrial detainees who have been convicted of no crime, who are 
dying every year, in many cases preventably, who are not being 
counted, whose causes of death are no longer being collected, 
and whose locations of death are no longer being collected. The 
fact that we do not get the information that we have tasked you 
with producing, and the insight and analysis that we have 
tasked you with producing, until 6 or 8 years after a deadline, 
that has cost human lives. That is why this matters.
    I am surely here to work with you and your colleagues. If 
legislation is what is required, let us legislate. But I am 
sure you can understand, Ms. Henneberg, and your colleagues can 
understand, that for the Department to come 8 years after a law 
is enacted and say you have determined that you cannot 
implement it successfully, 8 years have now gone by where 
people have been dying.
    I know from my brief time here that when Executive Branch 
agencies decide they really need something, they make us aware, 
immediately, of what they really need. Eight years have gone by 
since this law was enacted, and now we are hearing that you 
cannot carry out your mission, that you cannot collect accurate 
and complete data, that you cannot publish the data you are 
collecting because it is not accurate and complete, that you 
cannot produce for us the 6-years-late report on what you have 
learned about saving lives in prisons and jails, because at 
least, in part, the data is not complete.
    I have to note, in 2018, the Office of the Inspector 
General warned that the methodology DOJ was undertaking was 
likely to fail. Here is what the Office of the Inspector 
General said: ``Without complete information about deaths in 
custody the Department will be unable to achieve DCRA's primary 
purpose, to examine how DCRA data can be used to help reduce 
the number of deaths in custody.''
    This is 2018, the Office of the Inspector General, your 
internal watchdog, also wrote, ``We found the Department does 
not have plans to submit a required report that details results 
of the study on DCRA data.'' Four years ago, the Office of the 
Inspector General warned that the methodology is not going to 
work, warned that report is not going to be produced.
    The inspector general also said what Dr. Goodwin has said 
today, ``We believe that not releasing DCRA data and analysis 
limits the utility of the data collection effort and the 
Department's ability to use the data to increase public 
transparency about deaths in custody and take steps to reduce 
their number.'' Then again in 2021, your statisticians, the 
Bureau of Justice Statistics, are warning that the methodology 
is going to fail. We have all those documents. But it was not 
fixed.
    Now 8 years after the law was passed, you are telling us 
you need legislation. All the while people have been dying. 
Where is the urgency?
    Ms. Henneberg. Chairman Ossoff, I can assure that the 
Department understands the value of this data, that we 
understand the critical nature of having the data to know more 
about deaths in custody. We value the purposes of DCRA 2013 and 
previous DCRA 2000 and what it is intended to do. We are faced 
with a statute that provided that the States collect the data, 
and we were following that approach, States directly being the 
central reporters.
    We have now proposed legislative fixes. The Department is 
committed to fixing this. This current administration, this 
Department is focusing on fixing what we have observed the last 
couple of years with DCRA reporting.
    Senator Ossoff. I appreciate that, Ms. Henneberg, and I do 
want to note that President Biden issued an Executive Order 
(EO) on May 25th, calling for the Department to release its 
plan for full implementation and compliance with DCRA. That was 
noted. We have received some of the preliminary information.
    We have to get this right. We are going to wrap up this 
hearing in just a moment, but we have to get this right.
    Dr. Goodwin, I am so grateful to you for the analysis and 
investigation that you undertook in response to our 
Subcommittee's inquiry. Ms. Henneberg, I appreciate your 
testimony today. There is no doubt that this has been poorly 
managed within the Department of Justice, that as a result the 
Congress and the Department have been unable to take steps that 
could have saved lives.
    But as I said, I am here to work with you to fix this as 
soon as possible because it must be fixed.
    I will close with this, and this brings us back to the 
experiences of the Americans we heard from in the first panel. 
Jonathan Fano, Matthew Loflin, two Americans who were sitting 
in jail, pretrial detainees convicted of no crime, who died in 
the custody of their own government, who died preventably in 
the custody of their own government. There are thousands more, 
and tens or hundreds of thousands of family members who have 
experienced what our two witnesses today experienced.
    There is an ongoing humanitarian crisis in America's 
prisons and jails. People are dying every week in America's 
prisons and jails, many of them preventably.
    Ms. Henneberg, I hope you leave this hearing fully 
committed to tasking your entire team with the urgency 
warranted by a crisis that is taking lives. Dr. Goodwin, I 
thank you for supporting our efforts to bring transparency to 
this important issue.
    With that this hearing is adjourned.
    [Whereupon, at 4:59 p.m., the Subcommittee was adjourned.]

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