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

A Matter of Life and Death: The Importance of the Death in Custody Reporting Act is a project of The Leadership Conference Education Fund (The Education Fund) and the Project on Government Oversight (POGO). The Education Fund was founded in 1969 as the education and research arm of The Leadership Conference on Civil and Human Rights, the nation’s oldest and largest civil and human rights coalition of more than 230 national organizations. POGO is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing. POGO champions reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.

We would like to thank Megan Gall, Ph.D., of Blockwell Consulting, David Janovsky of POGO, and Bree Spencer of The Education Fund, who were the principal authors of the report. We are also grateful to the POGO fact-checking and editing team, including Julia Delacroix, Henry Glifort, Danni Downing, and Brandon Brockmyer, and The Education Fund’s staff, including Jesselyn McCurdy, Rachel Hooper, and Patrick McNeil. The report was designed by Celeste Jacobs. Thanks to Ed Chung of Vera Institute for reviewing recommendations and Sakira Cook of Color of Change for laying the initial groundwork.

Overall supervision was provided by Scott Simpson, Sarah Turberville, and Corrine Yu.

A Matter of Life and Death: The Importance of the Death in Custody Reporting Act builds on earlier advocacy from The Leadership Conference on Civil and Human Rights and POGO focused on the full implementation of the Death in Custody Reporting Act (DCRA). This report also builds on the Biden administration’s Executive Order 14074, which highlights the importance of collecting complete and accurate information on deaths in custody — the first step in reducing preventable deaths in United States jails, state prisons, and federal prisons.

This report makes specific recommendations about how the Department of Justice can fully realize the spirit of the current DCRA statute with the administrative tools currently available. We hope our colleagues across the country and our nation’s policy decisionmakers benefit from the report as we work toward an America as good as its ideals, which includes respect for the human rights of all individuals who are in government custody.

Maya Wiley
President and CEO

The Leadership Conference Education Fund

Danielle Brian
Executive Director and President
Project on Government Oversight

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.

More than eight years ago, Congress passed the Death in Custody Reporting Act (DCRA), which empowers the U.S. Department of Justice (DOJ) to collect these data and requires it to publish a study using the data to identify ways to reduce deaths in custody.1 But as of 2023, the department has yet to collect reliable data, let alone produce the required study.

On September 20, 2022, the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations held a hearing that highlighted the DOJ’s failure to effectively implement DCRA. At this hearing, the public learned about the tragic deaths of two individuals, Matthew Loflin and Jonathan Fano. Loflin died of heart failure after officials failed to provide him with treatment in Chatham County Detention Center in Georgia in 2014. Fano committed suicide at the East Baton Rouge Parish Prison in Louisiana in 2017. Both individuals lost their lives as a consequence of poor care and poor conditions in custody, and both were pretrial detainees when they died.2

It is clear from the research on deaths in custody presented in the subcommittee hearing, and the experiences of people who die in custody, that preventable deaths in our nation's jails, state prisons, and federal prisons are a real, urgent concern. The limited data available today show that thousands of people die in government custody each year and that they are disproportionately people of color.3

It is clear…that preventable deaths in our nation's jails, state prisons, and federal prisons are a real, urgent concern.

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.

What the Justice Department Can Do Today to Implement the Death in Custody Reporting Act

  • Refine Administration: Refine and update coordination and clarify reporting requirements and guidance for data collectors at the federal and state levels. Design an implementation plan that recognizes that DCRA gives the Justice Department a broad mandate to study deaths in custody in order to help prevent them.
  • Commit to Compliance: Take concrete steps to ensure all agencies report DCRA data as required by the law. Issue clear standards for when and how the current 10 percent penalty will be imposed and impose the penalty on noncompliant states.
  • Improve and Standardize Collection Forms: Ensure that the data collection forms contain clear, specific questions that will elicit clear data about the circumstances surrounding deaths. Once the forms are improved, keep them consistent for as long as possible, enabling longitudinal studies.
  • Engage in Studies that Address DCRA-Mandated Research Questions: Clearly define the universe of data necessary to answer the research questions in the DCRA statute and issue the required analysis to Congress.
  • Increase Transparency: Create, maintain, publicly publish, and annually update a list of agencies subject to DCRA. Release annual reports on key data trends and make anonymized data available that at a minimum breaks out information at the agency or facility level. Create a unique individual identifier system like those commonly used by other agencies to protect privacy while disaggregating data for research and evaluation.