NC jail death exposes a reporting loophole critics say needs closing
A criminal investigation and state autopsy found Forsyth County jail detention officers had placed inmate John Neville in a prone position with his hands cuffed behind him. He couldn’t breathe, suffered a cardiac arrest and died. They and a nurse who attended to him are now facing criminal charges.
But Neville, 56, of Greensboro, was still alive after being rushed to the hospital. And in the two days he laid unconscious, the jail persuaded prosecutors to release him from custody. That made it an out-of-custody death that did not need to be reported to the state agency that oversees safety and supervision in county jails.
As a result, the state Department of Health and Human Services received little information from the jail about Neville’s death, and never looked into it.
The jail also did not report the death publicly.
Today, advocates for inmates’ health and safety and a state lawmaker say the death shows a reporting loophole The News & Observer first exposed three years ago needs to be closed.
State Rep. Donny Lambeth, a Winston-Salem Republican, spoke about closing it in 2018. He was a co-chair of an oversight committee that had been looking into jail deaths, and he said legislation expanding the notifications to include inmates who had died in custody, instead of just those who died in the jail, didn’t go far enough.
“We should figure it out and get the lawyers to put language in there to make sure that that’s not a loophole,” said Lambeth, a former hospital administrator. “There could be circumstances when they were in the custody of the county that could have contributed to that death.”
Lawmakers didn’t close the loophole, and now the consequences are playing out in Lambeth’s home county with the fallout from Neville’s death. He died in the hospital on Dec. 4.
Five detention officers and a nurse working for a company that provides health care to inmates are now facing felony involuntary manslaughter charges, Forsyth County District Attorney Jim O’Neill said earlier this month.
While Neville was in the hospital in a coma, jail officials got him released from their custody, a Guilford County prosecutor said.
Because of the gap in the law, the jail did not have to fill out a report to DHHS describing what had happened. As a courtesy, the jail did send a report to DHHS within days of Neville’s death. It said Neville died out of custody and the cause was unknown. It left blank sections identifying when Neville was last seen to be OK, when he went into distress and the names of the detention officers who checked on him.
The DHHS didn’t investigate the death. When The News & Observer inquired in March, Lonnie Albright, an assistant county attorney representing the sheriff’s office said Neville had become infirm in jail and died at the hospital. He made no mention about the circumstances that caused Neville to be hospitalized, or that Sheriff Bobby Kimbrough Jr. had called in the State Bureau of Investigation to investigate.
On Tuesday, Albright said he couldn’t comment on the case because of the criminal investigation.
‘Rushed’ out of custody
Kristie Puckett-Williams with the ACLU of North Carolina said the circumstances suggest the jail didn’t want DHHS to look into Neville’s death.
“It sounds like they rushed to get him out of custody so they would not have to report that death as a jail death,” said Puckett-Williams, who manages the ACLU’s Statewide Campaign for Smart Justice.
Susan Pollitt, a senior attorney with Disability Rights North Carolina, also saw it that way, and said it’s a practice that needs to stop.
“I am shocked that in 2020 a N.C. Sheriff continues to use this old maneuver to trick the system in place,” Pollitt said in an email message. “Unless we, the public, regulators, County Commissions, detention staff, know what the conditions and challenges in our jails are, we will not be able to fix them. It starts with transparency, which appears to have been intentionally muddied in this case.”
DHHS officials did not respond to repeated requests to be interviewed about the case. In the past they have described themselves as partners with the sheriffs to keep jails safe and have said they have little ability to punish jails that repeatedly fail to properly supervise inmates. They have the option to investigate out-of-custody deaths, but often don’t unless they find out about circumstances that point to issues within a jail.
“Based on our understanding that Mr. Neville was not a prisoner in the custody of the Forsyth County Detention Center when he died, it was not required to report Mr. Neville’s death to DHHS,” said DHHS spokeswoman Chris Mackey in a statement. “Since criminal charges have been filed in Forsyth County, any questions about the determination whether or not this inmate was in custody at the time of his death should be directed to the Forsyth County Jail.”
Jails that fail to report in-custody deaths to DHHS within five days face a misdemeanor charge under the law.
Defining when to report
Eddie Caldwell, the executive vice president of the N.C. Sheriffs’ Association, said it’s too soon to tell if Forsyth sheriff’s officials broke the reporting law. He said the criminal investigation is likely looking at that.
But he said requiring jails to report out-of-custody deaths could prove unwieldy. Does DHHS need to know about an inmate who had been released from jail, went home and then died weeks later in a car wreck?
“What would have to be looked at is, is there any proximity to the period of incarceration and the death, and how would you define that?” he said.
Sheriffs supported the 2018 change in the law that expanded reporting to in-custody deaths. Often, inmates remain in custody when they are taken to a hospital. Caldwell questioned the need to expand the reporting requirement further.
“If it’s determined that if somebody doesn’t follow a law or rule due to a mistake or malfeasance, that doesn’t necessarily mean there’s a defect in the rule or the law,” Caldwell said.
Some out-of-custody jail deaths require no DHHS investigation, such as an inmate who had been sent to Central Prison for treatment and later died. But Neville’s death was tied to his treatment at the jail after he suffered a seizure and was incoherent and aggressive when he regained consciousness, the autopsy said.
The N&O has asked a state judge to release videos that show Neville’s final hours in the jail.
A record year for jail deaths
Neville was among a record 46 inmates who died last year, and more than 40% of those deaths involved supervision failures, including two inmates who law enforcement officials say were assaulted by other inmates. The N&O published a five-part series, Jailed To Death, in 2017 that showed a systemic problem with inmate supervision, and first exposed how some sheriffs were not reporting deaths if the inmates had died in the hospital.
Lambeth said he regretted that lawmakers had not continued to look into jail deaths after the 2018 session. He said he wants to revisit the jail regulations when the legislature reconvenes.
He said it should be easy for DHHS and jails to come up with an electronic reporting system that requires jails to report anytime an inmate needs to be sent to the hospital, whether they die or not.
“You could easily close any loophole like that and require reporting so that DHHS, which has ultimate responsibility for oversight, is also properly investigating and doing their job in terms of oversight,” Lambeth said.
Disability Rights NC has been monitoring jail deaths over the past six years. Pollitt said their tracking shows the problem is getting worse.
“Treatment and conditions are not better; deaths and suicides keep increasing,” she said. “The details are often very disturbing — deaths in restraint chairs, after warnings, of people left alone and unobserved in solitary confinement. Our conclusion is that increased oversight and consequences — authorized sanctions for neglect and mistreatment — are needed to bring about change.”
Citlaly Mora, an ACLU of NC spokeswoman, said Gov. Roy Cooper’s new task force on racial inequality would be a good vehicle to examine the state’s jail regulations.
Puckett-Williams said lawmakers should go beyond closing a loophole to examine what she sees as a lack of health care for inmates. She added they should also look at whether some inmates should be jailed in the first place.
“The community extends far more grace to the system than the system extends to the community, and now we’re at a boiling point,” she said, referring to protests around the country over police brutality.
Neville’s death has also prompted protests. One group of protesters — the Triad Abolition Project — demands the Forsyth jail provide immediate public notification when an inmate dies.