The Bridge: We Don’t Know How Many People are Dying in Custody

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The government isn’t keeping track of deaths in custody.

More people are killed by law enforcement in this country than in any other industrialized democracy in the world, but even the best data on civilian deaths at the hands of our criminal justice system is an underestimate. Most reports don’t take into account the staggering number of deaths in prisons and jails. That’s because there is no authoritative source of information on how many people die in custody, despite a federal law that is supposed to create just that — the Death in Custody Reporting Act (DCRA). Recently, the Justice Department made a wayward claim that DCRA restrains their power to collect data — but how much truth is there to that claim?

In this edition:

• A brief history of DCRA
• How there’s still no accurate data on civilian deaths in custody
• Why it’s imperative that the system of reporting is fixed, right now
• And yet, why DCRA is just one step

In a hearing in late September, the Justice Department claimed that the reason they’ve failed to collect usable data on deaths in custody is because of wording issues in the law. But my colleague David Janovsky, analyst for The Constitution Project (TCP) at POGO, called these wording discrepancies “imagined limits to their efforts.” David recently released a fantastic analysis on what is actually causing the failure to properly implement DCRA. I sat down with David and TCP Director Sarah Turberville to understand what’s at stake.

Read the analysis

First, some context

DCRA has been around, in some form or another, for over two decades now. It was first introduced in 2000, after a series of investigations publicized excessive deaths in custody in the 1990s. DCRA requires the Justice Department to collect data from state and federal law enforcement agencies on instances of custodial deaths — that is, deaths while a person is detained, arrested, or incarcerated in a correctional facility. The data on both the number of deaths in custody and the circumstances surrounding those deaths (including demographic information) was intended for use in developing strategies to reduce deaths in custody.

The law was reauthorized in 2014, four months after the murder of Michael Brown in Ferguson, Missouri. Because DCRA’s tenure until that point was characterized by extreme underreporting, Congress added in penalty language that put states at risk of losing 10% of their federal criminal justice funding if they failed to report their data to the Justice Department. Unfortunately, that penalty changed nothing. David and Sarah told me that the data collected to date is practically unusable, with unhelpful, sparse reporting on the federal level and vast undercounts from the state and local level.

Implementing DCRA simply was not a priority for the federal government. Though the Obama administration had a plan for administering the law, it was never set in motion. And when the Trump administration came into office, the plan was scrapped for a new (less comprehensive) one that went nowhere for the last five years.

A state of disrepair

There’s a number of reasons DCRA isn’t working. Federal and state agencies are collecting flawed, unverified, incomplete data. And the data that’s being reported is neither timely nor transparent.

Also, the financial penalty that was meant to guard against this failure has never been levied against a state. The vast majority of states report incomplete data and face no consequences.

This problem runs so deep that even the form used to collect mortality data is inadequate and ill-designed, with far too few questions and lacking basic standardization that would allow for any meaningful analysis of the data in the future.

And yet...

Despite its lousy history,DCRA is not a lost cause. Larger efforts for police reform fell apart last year, but DCRA remains an actionable tool that we have the infrastructure to implement. It’s something that can be done right now. The Justice Department’s excuse that changes in wording have tied their hands on DCRA is just that: a frustratingly poor excuse.

Without reliable, official data (or no data at all) on the statistics or circumstances of custodial deaths, we don’t have a place to start to examine and meaningfully address this crisis. As Sarah told me, “It is fundamental that you can’t fix what can’t be measured.” Without the data, we won’t be able to comprehensively understand the role that excessive use of force by law enforcement and poor conditions at correctional facilities play in deaths in custody. The lack of data hurts all systemic efforts to improve conditions in our criminal justice system, including the broader push to bring accountability to law enforcement and put an end to police brutality.

But David and Sarah were careful to stress that though collecting data on deaths in custody is a necessary, crucial first step, DCRA is, ultimately, no more than that: the first step. “Not even a full first step,” David noted. As he writes in his analysis, “Collecting data on deaths in custody is just a small step toward actually reducing those deaths.” Taking action to meaningfully address and eradicate these deaths is a whole other beast.

The takeaway

The federal government’s failure at the basic task of collecting data regarding in-custody deaths has far-reaching — and fatal — repercussions. But there’s hope, because with an issue as interconnected as deaths in custody, a fix to DCRA is a step toward positive change to our larger criminal justice system. Congress has failed to pass the meaningful police reform the public is demanding, but a tool like DCRA is still a good measure for accountability, even if it is low-hanging fruit. The infrastructure is already in place. This is an easy fix.

Read on our website David’s analysis on the sorry state of DCRA data collection.

If you’d like to dig deeper on the Death in Custody Reporting Act, below is some of what I read while writing this newsletter.