A Matter of Life and Death: The Importance of the Death in Custody Reporting Act

Executive Summary

Deaths in custody have long been, and remain, a national crisis. Far too many of these deaths are caused by excessive violence from law enforcement, including dangerous and unnecessary use of force by police and the abuse and neglect of incarcerated people.

The United States government does not know how many people die in the custody of the criminal-legal system each year. This is both a moral and administrative failure. Without clear, accurate, and publicly accessible information on deaths in custody, policymakers, researchers, and advocates are unable to make the changes necessary to reduce preventable in-custody deaths.

This is why DCRA is so important. While DCRA may be a data collection, reporting, and research statute, it is grounded first and foremost in human rights. Policy changes that reduce preventable deaths will not occur until decisionmakers, advocates, and researchers understand the full breadth of this problem. Collecting complete, accurate in-custody death information is a critical step toward reducing deaths.

This report proposes a path forward on DCRA. It begins by analyzing the law and past efforts to implement the law, some of which were considerably more robust than the Justice Department’s current plan. It then identifies a series of key challenges that remain unresolved.

The elements of federal, state, and local data collection are at the core of this issue and, as a consequence, it is easy to get lost in the granularity of data and process. Thus, it is more important than ever to emphasize the urgency of DCRA implementation. Every year that collection remains incomplete costs people in custody, some of the most vulnerable people in U.S. society, their lives. The government has an obligation to ensure the safety of people in its care — and some of those people are in custody.

What is the Death in Custody Reporting Act?

DCRA requires every state and territory, and each federal law enforcement agency, to collect data on deaths that occur while someone is being detained or arrested by law enforcement, or is in transit to or in the custody of a jail or correctional facility, and to submit that data to the U.S. attorney general. The data must include decedent information (their name, gender, race, ethnicity, and age); the date, time, and location of the death; the law enforcement agency involved; and “a brief description of the circumstances surrounding the death.” States that fail to comply face up to a 10 percent reduction to their awards under the Edward Byrne Memorial Justice Assistance Grant Program. The Justice Department is required to issue a report to Congress analyzing how DCRA data can be used to reduce in-custody deaths and how policies and practices contribute to or prevent those deaths.

History of DCRA Implementation

Between 2014 and 2021, the Justice Department published multiple plans detailing how it would manage the data collection required by DCRA. These plans vary considerably in their scope and level of detail, reflecting changing positions toward DCRA from the Obama, Trump, and Biden administrations. Reviewing each plan, along with other Justice Department documents regarding DCRA implementation, reveals multiple weaknesses in the department’s current approach. The current DCRA program collects information on fewer questions, contains fewer safeguards to ensure accurate data, and results in less transparency than earlier DCRA proposals or previous death in custody data programs.

In the summer of 2022, the DOJ suggested that new legislation was needed to fulfill DCRA’s mandate. But the history of DCRA shows that the department has previously developed far more rigorous plans than what exists today — under the same version of the law that is in force today. The department has simply chosen not to implement them. These past plans contain provisions that the Justice Department clearly believed were compatible with the law and that, if actually implemented, would considerably strengthen DCRA. In addition, state and nongovernmental data collection programs provide examples of best practices that would improve federal implementation.

DCRA Today

More than eight years after DCRA was enacted, the Justice Department has yet to fully comply with the law. While federal agencies have reported data since 2016, the department has not successfully collected state and local data. In fact, its efforts to do so have yielded worse results than the data programs that were in place prior to the department’s current DCRA program. The Government Accountability Office reported that in 2021 alone, the government potentially undercounted deaths in custody by nearly 1,000 compared to other public data sources. Meanwhile, DCRA data from 2019 contained only a portion of the data on prison deaths that were reported under the department’s Mortality in Correctional Institutions data program, which has since been discontinued.

In the final months of 2022, the Justice Department indicated it would step up its DCRA efforts, including by enhancing technical assistance to states and auditing data it receives. If implemented, these would be significant improvements. But the history of DCRA to date means real implementation, not promises, are necessary. And even technical assistance will be insufficient if the Justice Department continues to take an unnecessarily narrow view of what the law allows and requires. The department’s position is a needless barrier to collecting meaningful data. With a more comprehensive DCRA program in place, deaths like those of Matthew Loflin and Jonathan Fano will be more likely to be prevented. Agencies will have the data they need to identify meaningful trends regarding in-custody deaths and will be able to proactively take measures to increase the safety of the people who are in the government’s custody. For those agencies that fail to take proactive measures, the federal government will be in a better position to require the necessary improvements to decrease preventable deaths.