State agencies can’t agree on who’s responsible. Experts say this is a transparency problem.
Federal laws require state prisons to track all in-custody deaths, but a Street Roots investigation shows these reports are often incomplete in Oregon.
Street Roots reviewed 10 legally mandated quarterly reports listing in-custody deaths spanning 2020, 2021 and the first two quarters of 2022. It found the Oregon Department of Corrections, or ODOC, failed to list a cause for 78 of the 123 in-custody deaths, or 63.4%, occurring in the two-and-a-half-year span.
The third and fourth quarter 2022 reports were not available at the time of publication.
Chain of custody
When a person dies in an Oregon prison, corrections employees treat it as a crime scene. The statute mandating this process is meticulous and precise. It reads like stereo instructions: first, the designated security employee at the scene of a death will compile information on the identities of anyone present, then disperse them from the area. If prisoners are present, the employee will gather their identification cards (so they can be interviewed later on) and disperse them.
Next, they notify others about the death in a specific order. First, the officer-in-charge, then the facility contact person. Facility health services staff (if available) are immediately informed. After the designated employee notifies the health services staff, they notify the Chief Medical Officer. Each of these people has their responsibilities, a chain of command guiding the process until Oregon State Police investigators arrive and assume responsibility for the scene.
The law carefully articulates the process for tampering with anything at the scene of a prison death.
“The death scene will be processed as a crime scene,” the law reads. “Nothing within the death scene area will be moved or touched by anyone.”
The officer in charge, or their designee, will make a crime scene contamination log. Evidence can only be removed if it’s a security threat “such as a weapon.” In those instances, it will be photographed and diagrammed in relation to the rest of the “death scene” before it’s moved.
Oregon State law and ODOC policy on criminal evidence handling outline this process. After employees secure the scene, the record of the death, its cause and the chain of responsibility for maintaining these records are far murkier.
‘General lack of transparency’
At its core, this gaping lack of information is a transparency problem.
Inmates are in a position of extreme vulnerability. Prison employees, in particular guards, have the ability to abuse their power. Transparency to lawmakers and the public is the fundamental protection against these abuses. Without it, corrections facilities are less accountable, David Pitts, a senior research fellow at the Justice Policy Center, said.
“Our prisons are opaque places, they're not very transparent,” Pitts said. “The corrections officers who work within them have an incredible amount of discretion to operate on the ground. Really, officers and other incarcerated people can do a lot of really harmful things without any sort of public scrutiny … When we don't make those data sets transparent, it just feeds into this culture of institutions that don't feel that they have to be accountable to the public for what they do.”
This kind of attitude is typical among corrections facilities, said Juan Chavez, a lawyer with the Oregon Justice Resource Center. Chavez represents prisoners in Oregon in a class action lawsuit alleging ODOC violated their civil rights by neglecting to protect them from COVID-19 during the pandemic.
“I think it is consistent with a general lack of transparency that comes out of the Department of Corrections,” Chavez said. “And, I think, an attitude that nobody should be really checking in on their business … I think the public deserves to know if there has been anything questionable or not.”
Because prisoners are so vulnerable, the need for transparency regarding what’s happening within prison walls is all the more urgent.
Oregon’s newly minted Joint Task Force on Corrections Medical Care published a report in September showing prisoners are simultaneously at higher risk for serious health complications while also facing barriers to receiving adequate care. Prisoners, termed adults in custody or AIC in ODOC jargon, are disproportionately likely to face serious health conditions and often face related challenges as a result of their gender, race, age and socioeconomic status.
“These factors all combine to make the AIC population poorer, older, and sicker,” the report found. “Incarceration has also been shown to contribute to worsening health of individuals, families, and communities.”
According to the report, “AIC are more likely to have high blood pressure, asthma, cancer, and arthritis. AIC are also more likely to have or acquire infectious diseases, including human immunodeficiency virus (HIV), hepatitis B and C, syphilis, gonorrhea, chlamydia, and Mycobacterium tuberculosis. Studies have also shown that more than half of all AIC had mental health and substance use problems.”
In 2021, on the heels of the pandemic, ODOC faced an accumulating number of individual lawsuits and the class-action suit Chavez is involved in, all claiming ODOC failed to protect prisoners from COVID-19 early in the pandemic.
In July 2021, lawmakers passed HB 3035, a bill creating the interim Joint Task Force on Corrections Medical Care, which would assess ODOC health care services, including ODOC’s grievance process.
The task force noted ODOC’s health records system was primarily paper-based and “in extreme need of replacement with an automated electronic health record (EHR) solution to aid staff in doing their work as effectively, efficiently, and safely as possible.”
Among other findings, the report concluded ODOC should develop a quality monitoring strategy to track and publicly report information on the care of prisoners, including access to care, timeliness of care, grievances, quality of care (acute, chronic, dental and behavioral) and understaffing.
Transparency regarding health care — an issue related to in-custody deaths — was also lacking. A better system is needed, the report found, to “improve continuity of care with community practitioners, the seamless sharing of records and the ability for outcomes and services to be reported to the public.”
Rep. Maxine Dexter, who sponsored the bill, said her relationship with ODOC was “relatively positive” during the task force's work. ODOC was responsive and provided requested information, though the onus was on her to wade through information and determine what else she needed.
“When I ask a question, I do get a response,” Dexter said. “And whether there is more information to be known or asked for is challenging. I don't want there to be an assumption that I'm suspicious of information that I'm getting. But there is a very clear, 'you ask for this, this is what you receive.' There's not further context, sometimes, for the information that may have led to other questions.”
Information unavailable
These 78 people may have died of natural or violent causes, illness or injury in Oregon's prisons — but ultimately, that information isn’t readily available, so the public won’t know. An ongoing lack of vigilance on the matter likely means the U.S. Department of Justice and lawmakers won’t know either.
In reporting this story, Street Roots’ efforts to determine the cause of these deaths were unsuccessful. Representatives for multiple agencies said they didn’t have access to information showing how these people died, instead pointing to each other as the responsible party.
In Oregon, in-custody death investigations are a joint effort by both the Oregon State Medical Examiner and county-level medical examiner programs, Amber Campbell, ODOC spokesperson, said. The county medical examiner or death investigator is responsible for gathering information about the death, conducting a scene investigation and producing a written report. The county medical examiner then reports the findings to the Oregon State Medical Examiner, which then reports the findings to ODOC.
In a statement to Street Roots, Campbell said medical examiners investigate all deaths in ODOC correctional facilities in accordance with Oregon law. Because medical examiners determine the cause of death and hold the records, ODOC is dependent on medical examiners to complete the reports.
“To assist with that duty, DOC regularly shares information with county medical examiner investigators when they investigate any AIC death,” Campbell said. “Cause of death determinations are provided to DOC upon request, however they may take up to six months in many cases, depending on the need for ancillary testing. These delays can affect the information that’s available to inform DOC’s quarterly reports to the legislature.”
Street Roots asked Oregon State Police, which oversees the state’s medical examiner program, why there would be so many in-custody deaths without a determined cause of death. Oregon State Police punted the responsibility back to ODOC in a statement. ODOC drafted the quarterly reports, not the state medical examiner, so “it’s impossible for us to provide an explanation of DOC’s work product,” Kyle Kennedy, a spokesperson for the Oregon State Police, said in an email.
“DOC’s quarterly reports are outside of the scope of the state medical examiner’s role and we cannot speak to their process in creating them,” Kennedy said. “We don’t know the origin of DOC’s data, and the limited amount of identifying detail present isn’t enough for our office to quickly or easily cross-reference with our own death investigation records, if at all. Since our office doesn’t play a part in creating DOC’s report, we can’t identify the factors that would lead to missing information in their report.”
The gap goes farther up the food chain — as does the circular explanation of missing data.
County-state-federal confusion
The federal law requires quarterly reports detailing in-custody deaths according to the Death in Custody Reporting Act, a law passed in 2000 mandating the collection of individual data on deaths in the process of arrest, local jails and state prisons. The law requires information about in-custody deaths to be submitted to the U.S. Department of Justice, and this same information is compiled in a report submitted to the state legislature. In turn, the U.S. DOJ must compile information on in-custody deaths from every state.
According to Ken Sanchagrin, executive director of the Oregon Criminal Justice Commission, which compiles and submits death data to the U.S. DOJ, the Oregon Criminal Justice Commission doesn’t receive copies of ODOC reports.
"We receive a subset of information from them for each death,” Sanchagrin said.
Street Roots obtained copies of Oregon in-custody death reports from the U.S. DOJ for 2020, 2021 and first two quarters of 2022. The categories and information in the reports differed from ODOC’s, but records confirm ODOC discloses deaths to the U.S. DOJ without noting a cause — its death tallies were also plagued with missing information about cause of death.
Pitts said ODOC’s failure to have up-to-date records doesn’t meet its obligation to provide care and transparency.
“I think it's important for the public to understand what's happening to people and the Department of Corrections,” Pitts said. “It is taking months and months for us to learn what causes an individual to die within a prison; I think that's categorically too long.”
‘Pending’
Investigating a death and ascertaining its cause is complex and often time-consuming. In these instances, instead of noting a cause, the reports offer a handful of reasons why it’s not listed, noting: “medical examiner declined autopsy,” “medical examiner has no responsive records,” “information unavailable'' or “pending.”
“Generally speaking ... medical examiner timelines for establishing cause of death can vary widely,” Kennedy said. “If the state medical examiner’s office performs an autopsy or orders toxicology studies, the cause of death determination may take up to six months in many cases, depending on the need for ancillary testing. While this process is ongoing, the cause of death is described as ‘pending.’ Once testing is completed, the pending death certificate is updated with a definitive cause of death.”
Street Roots requested specific information about what each of these responses means, and ODOC did not provide responses.
While ODOC was not forthcoming with information and did not agree to an interview, Dexter, Pitts and a county medical examiner told Street Roots the department faces logistical hurdles, including understaffing and an antiquated record system, both of which could hamper the ability to produce timely reports.
While it is true investigating a death can take time, in particular those requiring testing of any kind, experts say lengthy investigations and a failure to produce information limit accountability.
“We recognize sometimes it does take a bit of time, sometimes, you know, things like to forecast and also to the outside demands of the medical examiner's, and others that are associated with, with examinations and so on,” Pitts said. “But on the other side, we know that the DOC has a constitutional duty to care for the individuals that are incarcerated there. And that includes, of course, understanding what's behind the death of an incarcerated person. And so, ideally, they would (determine a cause) quickly after they passed away.
“The DOC needs to find a way to speed up the process, to staff up the parts of the DSP that are responsible for their functions, if necessary, or to contract with medical examiners, or other medical professionals can get that done a little bit faster.”
Beyond Oregon
In September, a federal investigation dug into the Death in Custody Reporting Act to determine whether or not the U.S. DOJ complied with the law. After a 10-month bipartisan investigation, the subcommittee found the DOJ failed to implement the law’s provisions and lacked effective, comprehensive and accurate death data.
“This failure, in turn, undermined transparency and Congressional oversight of deaths in custody,” the report found. “The Subcommittee has found that DOJ will be at least eight years past-due in providing Congress with the DCRA 2013-required 2016 report on how custodial deaths can be reduced.”
The report also found in fiscal year 2021 alone, the U.S. DOJ failed to identify at least 990 prison and arrest-related deaths, and 70% of the data DOJ collected was incomplete. The DOJ failed to implement data collection “despite internal warnings from the DOJ Office of the Inspector General and the Bureau of Justice Statistics.”
Moreover, the report found the DOJ failed to be forthcoming even with senate investigators.
“The Subcommittee notes that DOJ failed to provide full and complete information to the Subcommittee,” the report found. “DOJ’s resistance to bipartisan Congressional oversight impeded Congress’ ability to understand whether DCRA 2013 had been properly implemented, delaying potential reforms that could restore the integrity of this critical program.”
A need for transparency
Broadly, corrections departments in any state are notorious for lack of transparency.
“Unfortunately, it's not as unusual as we'd like it to be,” Pitts said.
According to Pitts, corrections departments in the United States are partly motivated by a fear of litigation.
“People sue them on a daily basis for a variety of things,” Pitts said. “If there's anything they feel that can open them up to litigation, that's something that maybe they're going to be a little bit hesitant to put out there. And that could include data about death.”
Another barrier is staffing. Corrections departments in the United States are historically understaffed, Pitts said.
“It's worse than it's ever been,” Pitts said. “They don't have the person power a lot of time to put data together to put them in a format that the public can consume the data, and then to update the data when the data changes.”
These factors combine to create a systemic lack of transparency, which creates more potential for abuses of power.
“I do think that it is important for legislators, myself included, to engage with our Department of Corrections to better understand what is happening and how the state can play an active role in supporting the work of better eliciting causes of death and whether they are preventable,” Dexter said.
ODOC’s inner workings drew attention from lawmakers since the pandemic, in part owing to the various lawsuits naming ODOC as a defendant. HB 3035’s passage is an indicator of new awareness, though whether or not the legislature will continue pushing for transparency remains to be seen.
“Transparency must be a fundamental component of our state government,” Danny Moran, spokesperson for Oregon House Speaker Rep. Dan Rayfield, said. “The Speaker wants to ensure that the Legislature has access to accurate data to inform policy making that prevents deaths of adults in custody and will continue to monitor these reports going forward.”
According to Chavez, while there is a large need for reform, the appetite for it is lacking. This is particularly true in Oregon, Chavez said, where the corrections department is beset by scandal after scandal outlining prisoner abuse.
“I think (legislative authority) is a powerful function,” Chavez said. “It’s just perhaps not utilized enough or — you see this commonly in Oregon — DOC just strolls into an oversight hearing and says, ‘everything's fine,’ and then people pat them on the head.
“After all the calamity and scandal we’ve seen over the last couple of years, I don’t see why you’d give them any credence.”
Street Roots is an award-winning weekly investigative publication covering economic, environmental and social inequity. The newspaper is sold in Portland, Oregon, by people experiencing homelessness and/or extreme poverty as means of earning an income with dignity. Street Roots newspaper operates independently of Street Roots advocacy and is a part of the Street Roots organization. Learn more about Street Roots. Support your community newspaper by making a one-time or recurring gift today.
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