Deaths in custody are a crisis, but data on them is a black hole, a new report says

The U.S. government doesn't know how many people die in law enforcement custody or while imprisoned each year, according to a new report by The Leadership Conference Education Fund and the Project on Government Oversight.

Citing data from the U.S. Government Accountability Office, the report says the federal government likely undercounted deaths in custody in 2021 alone by nearly 1,000 compared with other public data sources.

This information black hole is despite a federal law from 2014, the Death in Custody Reporting Act, that exists to compel law enforcement agencies' transparency on this issue. And under DCRA, the Justice Department is supposed to collect state and local data on these deaths.

This remains a problem even as federal agencies say they are cracking down on the lack of transparency in policing. Just last year, President Biden signed an executive order to advance accountability in policing and criminal justice practices.

"People are dying during incarceration, detention, and in police custody every day, yet we have no idea who they are, how they die, or how best to prevent future deaths," Bree Spencer, interim senior program director for justice reform at The Leadership Conference Education Fund, said in a statement. "Congress passed the Death in Custody Reporting Act to solve this problem and reduce preventable deaths, but agencies are failing to implement it."

The Education Fund is the education and research arm of The Leadership Conference on Civil and Human Rights, a coalition of civil rights groups. The Project on Government Oversight is a nonpartisan, independent government watchdog.

The findings from the report, A Matter of Life and Death: The Importance of the Death in Custody Reporting Act, come as available data indicates a worsening problem for deaths in custody. The publication of this analysis also follows the high-profile police killing of Tyre Nichols, a 29-year-old Black man, last month.

How the Deaths in Custody Reporting Act is supposed to work

The DCRA requires every law enforcement agency at the state, territory and federal level to collect data on the deaths of people transported, detained or arrested by law enforcement and those who died while incarcerated.

This information is supposed to be submitted to the U.S. attorney general with details on the time and location of the death, the decedent's personal information, the circumstances surrounding the death, and the agency involved.

States that don't comply face a punishment of up to a 10% reduction to their awards under the Edward Byrne Memorial Justice Assistance Grant Program — the primary source of federal funding to state and local jurisdictions.

The Justice Department is required to report to Congress on how the DCRA data can be used to establish policies and practices that prevent in-custody deaths.

But as of yet, no report has been created, contrary to the federal law.

The Bureau of Justice Statistics previously released 3-year-old data on people who had died during interactions with federal criminal justice authorities.

"The first report, issued in 2020, covered data from 2016 and 2017. A reporting lag of three years renders data considerably less useful as a policymaking tool," according to the new analysis from The Leadership Conference Education Fund and POGO.

Additionally, last September, the Government Accountability Office testified that 70% of the records states submitted to the Justice Department "were missing at least one required element—e.g., a description of the individual's death." In August, the Justice Department hadn't figured out whether states had actually complied with the DCRA, the GAO reported.

The DOJ said last year that new legislation is needed to follow through with the DCRA mandate, according to reports.

But the Leadership Conference Education Fund and the Project on Government Oversight reject this idea in their analysis, saying, "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."

The problem of in-custody deaths appears to worsen

Even before the outbreak of the COVID-19 pandemic, available data was pointing to a worsening problem of deaths in prisons and jails.

According to the report from the Leadership Conference Education Fund and POGO, limited data from the Justice Department as of 2019 shows:

• There were more deaths in local jails than ever recorded. A total of 1,200 persons died in local jails in 2019 — up 5% from 2018.
• The mortality rate for people incarcerated but not convicted "hit an all-time high." The Bureau of Justice Statistics says almost 77% of the 1,200 people who died in local jails in 2019 were not convicted of a crime at the time of their death.
• Reports of 184 in-custody deaths in local jails from drugs or alcohol intoxication also set a record. That's the most in the 20 years that the Bureau of Justice Statistics has collected mortality data.

The report calls on the DOJ to implement several changes to improve the accessibility and usefulness of the DCRA data to gain a full, reliable picture of the problem.

The organizations urge the DOJ to consider redesigning collection forms to bring in more robust data and committing to more timely reporting, among other recommendations.

"Policy changes that reduce preventable deaths will not occur until decisionmakers, advocates, and researchers understand the full breadth of this problem," the organizations said. "Collecting complete, accurate in-custody death information is a critical step toward reducing deaths."

The Justice Department did not immediately respond to a request for comment on the report's findings.

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