Thousands of people die in U.S. prisons and jails each year. The surviving families are often left asking basic questions: What happened, and could the death have been prevented? Too often, families never receive the answers they seek. Instead, many are met with silence from correction officials or must navigate varying and unclear procedures to claim their loved ones’ bodies and personal effects.
To understand some of the common challenges following an unexpected death, The Marshall Project spoke with families who have lost someone behind bars as well as lawyers who support them. They offered some suggestions on what questions to ask prison or jail officials and what you can do if you suspect the death was the result of negligence or intentional misconduct.
If you are dealing with the death of an incarcerated person, keep in mind that every case is different, and you should seek an attorney’s advice on what your options are under the laws where your loved one died and where you live.
To reach a Marshall Project reporter about a death behind bars, please fill out this form or email us at deaths-in-custody@themarshallproject.org
How to collect information after a death behind bars
Write down the details during “the call”
The first call families receive from jail or prison staff is often vague and may come from either a prison official or chaplain, explained Josh Kelner, a lawyer with over 20 years of experience in personal injury and civil rights cases. How much information you’ll receive from officials varies, but as a rule of thumb, “more information is better, so write everything down,” he said.
Take note of who called you, including their name, title and contact information, and the time and date of the call. Try to capture the exact language they used to describe the cause of death, location and timeline. These details can be helpful if you receive conflicting narratives about how your loved one died or if you need to follow up with officials later. Ask them for the name of the facility where the death occurred and what agency — local, state or federal — had custody of your loved one. Ask if an autopsy will be performed and if there was a cellmate or others who witnessed their demise.
If the initial conversation leaves families with more questions, Kelner recommends following up directly with whoever seemed most sympathetic and willing to talk. That could be a chaplain or the medical examiner.
Send preservation request to relevant officials
A “preservation request” asks the facility or agency to preserve any records, footage or evidence related to your loved one’s death. As Jaehyun Oh, a New York-based medical malpractice and civil rights lawyer, explained: “The goal is to put the facility on notice that there might be a claim coming, and to ask them to preserve as much of the information and materials as possible.” Taking this step early can make a difference in whether key information is still available later.
You don’t need a lawyer to do this. You can reach out to relevant officials yourself. Start by contacting officials at the facility where your loved one died.
If the death occurred in prison, reach out to the warden or superintendent; for jails, contact the jail administrator or sheriff’s office. You can also send your request to the facility’s public records officer (often listed on their website) or ask that it be forwarded to their legal counsel.
If an autopsy was performed, consider contacting the medical examiner or coroner’s office to ask that autopsy materials (including photos and blood or tissue samples) be preserved. Keep note of any investigative agencies that reach out about your loved one’s death so you can follow up about their findings and records, too.
Your request should include your loved one’s full name, date of death and correctional identification number. Oh recommends asking the facility, medical examiner or investigator to preserve the following materials:
- Surveillance video and audio from the deceased person’s housing units, infirmary and transport areas
- Emails or correspondence from prison officials related to the death
- Facility records, like housing or supervision logs
- Medical records, including sick call slips or requests for treatment
- Grievance forms or complaints they filed
- Incident reports or logs
- Autopsy materials, such as reports, paperwork, photos, tissue or blood samples
Check out this resource: Here’s a sample preservation request you can adapt for your specific case. Ask to preserve everything that might be relevant, so nothing gets deleted.
File a records request
A “records request” is how you can obtain copies of the materials you asked the corrections department, investigator or medical examiner to preserve.
Each state has specific laws, broadly known as freedom of information laws, that dictate which documents they have to make public. At the federal level, the law is called the Freedom of Information Act or FOIA. Journalists often use records requests in their reporting, but anyone can file a request for information.
You can send records requests by email, mail or through an online portal. Check the facility or agency’s website for instructions. You’ll want to list all the items you asked to have preserved and include your loved one’s full name, date of birth and ID number in the email, letter or online submission.
When requesting records, Oh recommends that you be specific and strategic. Focus on key dates or incidents to avoid getting denied for being too broad. You can always follow up with more targeted requests later.
Keep in mind that it can take time to get a response. Agencies are generally expected to reply within a set number of business days, but the first response may just confirm they received your request. They may still take a few months to send the actual records, especially if your request covers a lot.
If your request is denied (because of an ongoing investigation or other reasons), don’t assume it’s final. Agencies are required to explain how to appeal, and you typically have a short window to do so. If they don’t include that information, you can ask for it.
Once you submit your request, check in every couple of weeks and keep notes of all communication.
Check out this resource: The Marshall Project’s guide on how to FOIA, which explains the research methods our reporters use to craft detailed, strategic requests. The National Freedom of Information Coalition, a nonprofit that advocates for an open government, provides sample request letters for state public records requests and federal FOIA requests. They also compile resources on what’s available under the law in every state.
A note on requesting medical records
Medical records are private under a federal health privacy law called HIPAA. To request them, you’ll need to fill out a HIPAA release form AND show that you’re the next of kin — meaning a close legal relative, like a spouse, child or parent.
How you prove next of kin status varies by state. Some jurisdictions may require that a formal estate be established through probate court before they release any records, sometimes even requiring litigation. Other jurisdictions, such as New York state, allow you to obtain records without an estate or by completing a form (called a “small estate affidavit” or something similar).
Be sure to complete all forms accurately. Mistakes can delay the process or be used to deny your request later.
Consider talking to people who knew your loved one inside
Bunkmates, friends, unit mates or anyone they may have mentioned in a letter could be a helpful source of information. If you already have the names of friends on the inside, you can write to them by first looking up their ID numbers using your state’s department of corrections lookup tool online or with the Bureau of Prisons’ locator for federal facilities.
Keep in mind that messages sent to incarcerated people through email platforms such as JPay or CorrLinks are monitored. Phone calls are also monitored. Be cautious about sharing sensitive information.
What to expect when retrieving your loved one’s body and belongings
When someone dies in custody, the process of claiming their body or belongings can be complicated. Each state and facility type has different procedures, and often involves several different agencies.
When someone dies in jail or prison, their body is usually taken to the coroner or medical examiner. In several states, the next of kin or emergency contact must work with a funeral home to arrange the release, complete required paperwork and sometimes cover related costs. If no one claims the body within a set period of time, the state may cremate or bury the person.
What happens to personal belongings, how long they’re kept and how they’re given back, depends on the facility’s rules. Some allow families to pick items up or have them mailed, while others keep items for a set period (like 30 or 90 days) before disposing of anything unclaimed. If there’s an investigation, some property might be held longer as evidence.
You can ask about the process during your initial phone call with the facility. If you need to follow up, do so quickly because locating items can become more difficult over time.
What to do if you want to file a wrongful death lawsuit
A wrongful death typically means someone died because of another person’s and/or institution’s serious failure. There are two legal categories that wrongful death in prison or jail can generally fall under. The first is state law, which is either negligence or medical malpractice. The second is a federal civil rights law known as Section 1983, Kelner explained. “Both of them ultimately come back to the same issue,” he said, “which is: Did somebody fail to do something that they were supposed to, or required to do?”
In a jail or prison, wrongful death can look like staff not responding to repeated medical complaints, delayed care during a medical emergency, or using force in ways that violate policy or training. In these cases, the facility itself — whether run by a county, state, federal agency or private company — or specific staff members involved can be held legally responsible.
Proving the death was wrongful requires more than a hunch that something went wrong. You need to show that “there is something that is provable and establishable in a court of law,” Oh explained, “whether that be through records, testimony or witness statements, whatever it may be, to show that there was genuine neglect or indifference that caused your loved one’s death.”
These cases aren’t always straightforward, Oh explained. Even with strong documentation, bringing a wrongful death suit to court depends on the laws in your state, who’s allowed to sue and what kind of harm the court recognizes. Still, Oh recommends starting your investigation as early as possible. “The earlier investigation helps because it’s still emotional and makes people more willing to help,” she said. “And you can’t really start to put the pieces together without the records.”
Determine who can legally act
Not everyone can file a wrongful death claim, even if they were close to the person who died in custody. In most states, a legal spouse or biological child can sue. If the children are minors, a parent or guardian can file on their behalf.
If there’s no spouse or children, parents are typically next in line, and then siblings. Because the lawsuit has to be filed by someone who’s legally allowed to act on behalf of the deceased person, it’s worth deciding together as a family who should take on that role — and getting legal advice as early as possible.
Consider hiring a lawyer
It can be helpful to get a lawyer involved as early as possible. Even if you’re not sure about suing, a lawyer can help you meet deadlines and file requests properly. They can help coordinate an independent autopsy, if needed, and can determine if there are grounds for a lawsuit and explain what to expect financially and emotionally.
Consider a private autopsy
An autopsy determines the cause of death and can be a critical piece of information for families. Ask the facility right away if they plan to perform an autopsy. If you’re unsure about the official findings — or no autopsy is being offered — you can request a private one. This needs to happen quickly, ideally within a few days and before the body is embalmed or buried.
Some lawyers can help arrange a private autopsy without charging you upfront, Oh explained. This specifically applies to lawyers who work on a “contingency basis,” meaning they only get paid if you win the case, and their fees (including the cost of the autopsy) would come out of the settlement.
Keep in mind that autopsy and other case-related costs can get expensive. If you don’t win, Oh said, civil rights firms working on contingency often absorb those costs themselves. But that’s also why lawyers are selective and may only take cases they believe have a strong chance of success, she explained. Oh recommends checking the retainer agreement to confirm how costs are handled if a lawsuit doesn’t move forward or isn’t successful.
Check out this resource: Know Your Rights Camp is an organization co-founded by former professional football player Colin Kaepernick that provides legal help, education and other support to Black and Brown communities, including an Autopsy Initiative that offers free second autopsies to help families get an independent review when a loved one dies in custody or during contact with police. You can submit an Autopsy Request form here.
Know the legal deadlines
After a death in custody, there are strict legal deadlines for filing claims and lawsuits. Some are as short as 90 days, for example, for city, county and state-run facilities in New York. Federal claims typically have a two-year deadline, but have specific requirements, like stating a specific dollar amount.
Always consult a lawyer, even if you think you missed a deadline. You may still have options depending on the type of claim or jurisdiction.
What comes next?
In the days and weeks after a death in custody, many families will have to weigh what they need most: answers, accountability, healing or all three.
Healing, Kelner explained, often won’t come from a lawsuit. “That’s not something a legal process is conducive to,” he said, which is why he often encourages families to seek out grief counseling as early as possible. Families need space to mourn a “deeply sensitive and personal loss,” he said.
For families seeking answers or accountability, lawyers can investigate in ways they can’t on their own: obtaining records, bringing in medical experts and explaining what really happened. Even when the facts reveal no wrongdoing, Oh said, the process can bring relief.
“Many families are thankful because it actually gives them more closure,” she said. “They realize nothing nefarious happened, or that there was nothing anyone could have done.”
But even when a civil case does move forward, the outcome can still feel hollow. Most cases settle out of court with financial compensation, Oh noted, but often without an apology or admission of wrongdoing.