Senators on both sides of the red and blue chasm seemed to almost turn purple with exasperation Tuesday as they criticized the government’s fumbling of inmate death data.

The scene was a hearing in the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations. Its title pointed to the aggravation of the panel’s Democratic and Republican leaders: “Uncounted Deaths in America’s Prisons and Jails: How the Department of Justice Failed to Implement the Death in Custody Reporting Act.”

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

Sen. Ron Johnson of Wisconsin, the top panel’s top Republican, added in his opening statement: “DOJ has displayed a continued disdain for the subcommittee’s investigatory work and congressional oversight generally. . . . The department’s lack of transparency is unacceptable.”

They accused the department of failing to fully implement the legislation, which requires states and federal agencies to report deaths in custody or during the arrest process. The purpose is to reduce deaths and examine management actions related to the fatalities.

But that purpose is frustrated by missing and incomplete information.


A Government Accountability Office report released at the hearing “identified nearly 1,000 deaths that potentially should have been reported to DOJ but were not. Also, GAO found that 70 percent of the records provided by states were missing at least one element required.”

This could have been just another Capitol Hill hearing about agency shortcomings – but for the traumatic subject matter, the tearful, halting statements of witnesses who testified about relatives who died while incarcerated, and a voice from the grave.

Before their testimony, Ossoff played a recorded telephone conversation between Belinda Maley, one of the witnesses, and her son, Matthew Loflin. He died in 2014 from congestive heart failure while locked up in Savannah, Ga., on nonviolent drug charges.

“I’ve been coughing up blood and my feet are swollen. It hurts, Mom,” Loflin told his mother. “I’m going to die in here.”

Maley began her testimony by asking senators “to imagine the heartache of watching your only child suffer in a jail.” Their audible dismay indicated the senators did.

Ossoff and Johnson had no sympathy, however, for Maureen Henneberg, a deputy assistant attorney general, who had the unenviable task of explaining the department’s failings to skeptical, questioning senators.


Ossoff welcomed her by saying “the debacle, the decline in the department’s ability to collect and produce high integrity data, has unfolded over several years in multiple administrations.”

Henneberg explained that the Justice Department relies on states to provide information, but “the states have no leverage to compel . . . their local agencies to report the data. . . . It’s very concerning that there is the underreporting. And it was widespread across all the states.”

She called incarceration fatalities “a profoundly important issue, which is of great consequence to the legitimacy and integrity of the criminal and juvenile justice systems, to the lives of the people who come into contact with the justice system, and to the family members and loved ones of those who have died in custody.”

But that profound issue fell to federal bureaucracy vagaries.

Under the 2000 version of the reporting act, Henneberg said, Justice published 20 reports between 2005 and 2015 that “provided a wide variety of statistics and tables related to cause of death, decedent characteristics, and facility characteristics.” But things changed after a 2013 version of the law took effect, she added, and “produced unintended consequences that adversely affected the Department’s ability to produce complete and accurate information on deaths in custody.”

For example, the 2013 legislation penalizes states that don’t adequately report deaths, even though Henneberg said most “state governments cannot compel local governmental agencies to report to them.” Cutting state funding, she said, “as a penalty for incomplete reporting may actually lead to an unintended consequence of lowering the amount of funds available and necessary to improve statewide . . . reporting.”


Justice has proposed a list of changes to the law, including allowing the department to collect data directly from local agencies instead of only from state officials.

Ossoff and Johnson appeared exasperated with Henneberg’s indirect responses. The chairman complained “I’m not getting a precise answer” to his question about what Justice did “to repair and improve its data collection methodology.”

When Johnson asked why there was no “smooth handoff” when the responsibility for collecting the data moved from one Justice bureau to another, Henneberg again deflected, saying that “this department is focused on fixing and improving the data collection.”

Johnson interrupted: “You’ve been focusing on [it] how many years? You’ve utterly failed. I mean, literally, you’ve utterly failed. This isn’t that hard.” In a matter of months, he added, the GAO “got us better statistics than the Department of Justice” did over a period of years.

Ossoff demanded action.

“The crisis in America’s prisons, jails and detention centers is ongoing and unconscionable,” he said. “The Department of Justice and the Congress must treat this as the emergency to constitutional rights that it is.”

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