Fixing the Death in Custody Reporting Act

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Fixing DCRA

More people die at the hands of the police in America than any other wealthy country in the world. The Death in Custody Reporting Act (DCRA) was reauthorized in 2014 after the killings of Eric Garner and Michael Brown, with the express purpose of creating a comprehensive data source on how many people were dying in law enforcement custody and why, so efforts could be made to prevent future deaths. But a decade later, the government and the public are still only guessing about the true extent of this crisis.

In past editions of The Bridge, we’ve explored what DCRA is and why it isn’t working. In the third installment of this series, The Bridge is going to explore two concrete actions the Department of Justice (DOJ) could take to help fix DCRA so it can function at its full potential. In honor of Sunshine Week, POGO and The Leadership Conference on Civil and Human Rights sent a letter to DOJ outlining these actions. The Constitution Project at POGO Senior Policy Analyst and resident DCRA expert David Janovsky joins us to talk through the tasks at hand.

#1: Asking the right questions

A key contributor to the DCRA data problem is the very elementary (and very fixable) issue of faulty reporting forms.

“One of the main concerns we point out in the letter is that even if agencies were filling out forms completely and accurately 100% on time [Editor’s Note: They aren’t.], we still wouldn’t learn nearly enough about deaths in custody because DOJ isn’t asking for the right information,” David told me.

DOJ collects data about deaths in custody through three forms. State agencies report through the Performance Measures Questionnaire, and federal agencies report through the CJ-13A and CJ-13B. But the state and federal forms each ask a different slate of questions. The state form only asks six questions, most of which address basic information like the date and location of a death. Only one question asks for information about the circumstances related to the death — and leaves it up to the person filling out the form to decide what’s important. Though the federal forms go further into detail by prompting responses about use of force and violence, they still don’t go nearly far enough.

“When you consider just how many entities may be filling out these forms, you understand that they’re not nearly specific enough, and far too open-ended to gather data in a way that you can make sense of,” David explained. “The lack of standardization makes it impossible to study the data on the back end.”

But streamlining is not the only issue. As we note in our letter to DOJ, earlier versions of these forms used to — but no longer — prompt the collection of important data like how many officers were responding to a scene, how many shots were fired, and information about existing medical conditions. David shared with me some other specific questions these forms should be asking, but don’t:

• Was there use of force? Why? What policies does this specific facility have about use of force?
• Was the deceased person receiving medical treatment before their death?
• Did they have a diagnosed condition or disability, and did they receive accommodations for it?
• Were they in solitary confinement at any point before or when they died?

“These are all questions that seem obvious to ask if you’re really trying to drill down into the details on the causes of death in custody. Leaving it up to chance whether or not agencies provide DOJ with this crucial information is just not an effective way to go about this program,” David explained.

#2: Honoring the principle of transparency

Collecting the data is only the half of it: The promise of DCRA is that the collected data can then be studied and used to prevent further deaths in custody in the future. To that end, it’s crucial that the data is made accessible to those who need it. But right now, data is only being published sporadically and sparsely, if it’s being made public at all.

David explained that DOJ often redacts information like names and dates of birth of those who died in government custody on the principle of privacy, which is to be expected.

“But in some instances,” he explained, “we’ve seen them redact the state where someone was being incarcerated, the facility they were being held in, and even the cause of death. Looking at the information they release, there’s no way you can draw meaningful conclusions about why and how preventable deaths are occurring and what needs to change.”

David added, “It feels like they could be using the idea of personal privacy to hide information that could be embarrassing to prisons and law enforcement agencies.”

Data about deaths in custody is being obscured, and whatever the reasoning behind it, it’s a major problem.

“You can’t argue against the fact that the criminal legal system has never prioritized the well-being of the people who come into contact with it. This system has always pushed back whenever there’s an attempt at oversight over them. DOJ should be a part of the solution to that pushback, not a part of the problem,” David said.