Improve Data about Deaths in Custody and Excessive Use of Force

By David Janovsky | Filed under resource | January 03, 2022

The Problem

Police violence, particularly against people of color, remains a largely unaddressed issue across the country. Despite years of high-profile cases that have galvanized the public, policymakers still do not have even basic information about the scope of the problem, because there is no definitive count of instances of police violence.

Following the killing of Michael Brown in Ferguson, Missouri, in 2014, Congress reauthorized the Death in Custody Reporting Act.¹ It requires the Justice Department to collect data from federal, state, and local law enforcement and corrections agencies on all instances in which people being detained die. It also requires the department to issue a report with recommendations for reducing deaths in custody based on that data.

Seven years later, the department has still not fully implemented the law. It has released basic information about deaths in federal custody that occurred from 2016 through 2019, but did not even start collecting state and local data until 2020 — none of which has been released. It is unclear when the department will release any analysis of that data; if or when it will make any of the underlying data available to the public; or if it will produce the required recommendations report. In addition, the methodology the department is using to collect state and local data lacks key safeguards that ensure the quality of the data. Previous collection programs with similar methodologies undercounted deaths by roughly 50%.²

Even if DOJ improves its implementation of the act, it would not capture the full scope of excessive force by law enforcement, as serious but non-fatal incidents are not required to be reported. Data on non-fatal encounters is currently collected through an incomplete patchwork of programs and private efforts, none of which are mandatory.³ To fully inform policymaking, all use of force data should be collected, analyzed, and made available to the public by the Justice Department.

The Solution

Both the Justice Department and Congress have a role to play in addressing these shortcomings by improving current data collection laws and practices, and by expanding the scope of the data that is collected.

We propose that the Justice Department implement a number of changes:

Commit to an expeditious timeline for producing the report detailing data-based recommendations.
Commit to making underlying data collected from law enforcement agencies available to the public (with redactions as necessary to protect individual privacy).
Improve its collection methodology for state and local data. A proposed collection plan from 2016 (subsequently abandoned by the department) should be the starting point.⁴

We propose that Congress implement a number of changes:

Amend the Death in Custody Reporting Act to require the Justice Department to make underlying data publicly available. The act’s sponsors intended for the law to help inform policymakers and the public, but the law does not explicitly require data transparency.
Amend the act to contain more data quality safeguards. The Justice Department should be required to follow the established best practice of auditing the data it receives, and states should be required to periodically submit evaluations of their data reporting programs and plans to improve them as necessary.
Expand the act’s requirements to cover uses of force that do not result in death.

Additional Context

The Police Reporting Information, Data, and Evidence (PRIDE) Act, which has been introduced in several recent Congresses, contains language that provides a blueprint for accomplishing these goals.⁵ The House passed the PRIDE Act’s provisions in 2021 as part of the George Floyd Justice in Policing Act, which has since fallen apart in the Senate. The provisions would have created a reporting program for non-fatal uses of force by law enforcement, and would have included data transparency and quality requirements. As written, that program did not apply to incidents that would be reported under the Death in Custody Reporting Act. Congress should revive those provisions and revise them so they apply to death in custody reporting as well.

Additional Resources

POGO Resource: Comment Letter on Proposed eCollection, Death in Custody Reporting Act Collection

POGO Resource: Letter from Danielle Brian and Brandon Brockmyer to Attorney General Merrick Garland on Death in Custody Act Implementation

The Constitution Project

The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.

1 The Death in Custody Reporting Act of 2013, Pub. L. 113-242 was enacted by unanimous consent in the Senate and voice vote in the House. “H.R.1447 - Death in Custody Reporting Act of 2013,” https://www.congress.gov/bill/113th-congress/house-bill/1447/text. 2 Duren Banks, Lance Couzens, and Michael Planty, Bureau of Justice Statistics, Technical Report, Assessment of Coverage in the Arrest-Related Deaths Program, NCJ 249099 (October 2015), 1, https://bjs.ojp.gov/content/pub/pdf/acardp.pdf. 3 For example the voluntary FBI National Use-of-Force Collection Program, https://www.fbi.gov/services/cjis/ucr/use-of-force; “Fatal Force,” Washington Post, accessed November 18, 2021, https://www.washingtonpost.com/graphics/investigations/police-shootings-database/. 4 New Collection: Death in Custody Reporting Act Collection, 81 Fed. Reg. 91948 (proposed December 19, 2016), https://www.federalregister.gov/documents/2016/12/19/2016-30396/agency-information-collection-activitiesproposed-collection-comments-requested-new-collection-death. 5 Most recently H.R. 7089, 116^th Congress (2020), https://www.congress.gov/bill/116th-congress/house-bill/7089?s=1&r=6, sponsored by Representative Joaquin Castro.