March 16th, 2023Michael Everett

Seven Years After the Deadline – Still No Complete Data or Analysis from DOJ on Deaths in Custody

For two decades, the U.S. Department of Justice (DOJ) reported data on the annual number of deaths in custody in U.S. carceral facilities. But in 2019, it stopped. The resulting information vacuum left advocates, researchers, reporters, and government officials with few resources to understand trends in and the causes of deaths in U.S. prisons and jails. DOJ’s failure to inform the public about these deaths comes as it has also failed to meet Congressional deadlines to collect reliable data on and study deaths in government custody for almost a decade.

Stakeholders hoped the Biden Administration could correct these failures and demonstrate the leadership needed to fully implement the Death in Custody Reporting Act (DCRA), report transparent data to the public, and help inform practices to reduce deaths in custody. So far, the administration has failed to do this.

In this post we briefly describe:

  1. The origins of DOJ collection of death-in-custody data;
  2. Reasons why DOJ has never collected complete death-in-custody data, stopped releasing any new data, and failed to examine how deaths in custody can be reduced; and,
  3. How the Behind Bars Data Project’s death-in-custody data helps to fill in some of the gaps left by DOJ and allows transparent public examination of deaths in U.S. prisons.
I. Why Did the Federal Government Start Collecting Data on Deaths in Custody?

DOJ began systematically collecting national data on deaths in custody pursuant to the Death in Custody Reporting Act (DCRA). Originally passed in 2000, DCRA was reauthorized by Congress in 2014 after the killings of Michael Brown in Ferguson, Missouri, and Eric Garner in New York City, New York. The legislation mandates that DOJ:

  1. collect descriptive data from U.S. law enforcement agencies on every death of an individual that occurred while they were under arrest, en route to incarceration, or held in a carceral facility, and
  2. produce a study of the collected data to determine how to reduce these deaths and examine their relationship, if any, with facility management policy and practices.

While DCRA did not specify which part of DOJ should gather this information, DOJ designated the Bureau of Justice Statistics (BJS), its statistical research agency, as the implementing agency from 2000-2019. Until 2019, BJS produced annual reports on national deaths in custody collected through DCRA including its Mortality in Local Jails and State Prisons Reporting Series.

Due to bureaucratic regulations on data collection and policymaking, DOJ determined in 2016 that BJS could no longer serve as the primary agency in charge of DCRA-related data. Instead, DOJ suggested an expanded data collection plan, which included data reporting and validation requirements, and chose the Bureau of Justice Assistance (BJA), a consulting and grant making agency, to implement this plan.

In 2018 the Trump Administration gutted the proposed plans, including any plans for validation and public reporting. The Office of the Inspector General (OIG) warned later that year that the Trump Administration’s proposed data collection plan would potentially fail to produce complete data sufficient to achieve the intent of DCRA. Despite these warnings, BJA took over and implemented this data collection plan in October 2019, overlapping with the final three months of BJS DCRA data collection. In a review of the data both agencies collected in 2019, BJS warned DOJ that the data BJA collected had significant quality and coverage issues. Compared with BJS’s data collection, BJA failed to gather data on prison deaths from 11 states and jail deaths from 12 states.

In 2021, the Biden Administration still chose to move forward with the Trump Administration’s insufficient data collection plan and ended BJS data collection. BJS produced its final DCRA-focused report in December 2020 and closed DCRA data collection in March 2021.

Meanwhile, BJA has continued to fail to collect reliable data on deaths in custody. A 2022 study by the General Accountability Office (GAO) of BJA’s recently collected death-in-custody data found that in FY 2021:

  • BJA’s new data collection system for DCRA missed nearly 1,000 national deaths in custody;
  • 70% of records on deaths in custody were missing at least one piece of DCRA-required data; and,
  • 40% of records on deaths in custody were missing a description of the circumstances of death.

Of the 1,000 missing deaths in custody, 341 were deaths in prisons disclosed on states’ public websites. Six hundred forty-nine were ARDs disclosed in reliable public databases.

While BJA is still conducting DCRA data collection, DOJ has released no new data on deaths in jails and only limited data on deaths in prisons since 2019. BJA officials have told GAO that they no longer intend to release new data on deaths in custody and did not share whether or how the agency intends to use newly collected data to study these deaths.

In September 2022, the U.S. Senate Permanent Subcommittee on Investigations held a hearing on DOJ’s failed implementation of DCRA, which emphasized the the importance of the legislation to incarcerated people and their families:

  • “My last visit with him was to take him off of life support, where he was still handcuffed to an ICU bed under 24/7 supervision by a corrections officer. After 32 years of life with my only son, our bond was broken, and no one, not the health provider, not the infirmary staff, the sheriff’s office, or the district attorney was willing to help. They did take time to exact one last indignity upon Matthew before his death, issuing him a personal recognizance bond after he was brain dead, so his death would not count as an in-custody death. Not a day goes by that I don’t think about what Matthew went through…I will continue to spread awareness of this problem for as long as I am able. With over two million people in our prisons and jails, there are more millions of mothers, fathers, siblings, and friends, who are in the same or worse situation. This should not be ignored, that is why enforcement of the Death in Custody [Reporting] Act is so important, and could be a tool to hold the for-profit jail and prison medical providers accountable for unnecessary deaths, like Matthew’s and others.” – Belinda L. Maley, mother of Matthew Loflin, who died due to being refused access to medical care for a cardiomyopathy condition at Chatham County Detention Center in Georgia.
II. Poorly Laid Plans for Collection, Evaluation, and Reporting

Since 2000, DOJ has faced challenges in implementing DCRA. Several obstacles prevent DOJ from effectively collecting and examining death-in-custody data including:

  • Inadequate reporting incentives in DCRA, and
  • A lack of data transparency and validation by DOJ.
Few Sticks, No Carrots

Congress provided DOJ few effective tools to promote law enforcement and carceral agency compliance in reporting death-in-custody data. DCRA was passed in 2000 as an amendment to the Violent Crime Control and Law Enforcement Act of 1994. It mandated that for a state to receive Truth-In-Sentencing Incentive Grants (TIS grants) it must,

“…provide assurances that it will follow guidelines established by the Attorney General in reporting on a quarterly basis, information regarding the death of any person who is in the process of arrest, is in en route to be incarcerated, or is incarcerated at a municipal or county jail, State prison, or other local or State correctional facility…” (link).

TIS grants were used by states to build or expand carceral facilities, among other objectives.

When Congress reauthorized DCRA in 2014, it instead provided DOJ the power to penalize states by reducing the federal justice assistance grant (JAG) funding allocated to a state by up to 10%. These federal grants provide funds to state and local law enforcement agencies for staff and equipment, as well as to enhance security measures around special facilities (like schools), support drug courts, increase prosecution of violent crimes, establish multijurisdictional task forces, and defray the cost of liability insurance.

In 19 years of implementing DCRA, it does not appear DOJ ever penalized states, or law enforcement and carceral agencies, which directly report death-in-custody records, for poor data quality or missing records. This hesitancy to punish states is likely due in part to bureaucratic regulations and how DOJ grants are distributed.

A federal rule requires BJS to remain an “independent” statistical agency and not engage in “policy-making activities.” The DOJ’s Office of Justice Programs (OJP) determined that this requirement precludes BJS from establishing guidelines for state compliance with DCRA and authorizing cuts in grant funding due to non-compliance. Because BJS has implemented DCRA since 2000, DOJ has never established guidelines for state reporting compliance.

Cutting federal grants would also be a weak tool to promote agency reporting compliance. JAG funds are provided to states for distribution, not directly to individual agencies. In some states, like Missouri and Alaska, less than half of all law enforcement agencies receive any JAG funds at all. Cutting JAG funds to a state may not affect law enforcement agencies that are out of compliance with DCRA and may punish law enforcement agencies that comply with DCRA, even if there were any compliance standards set by DOJ.

DCRA did not provide DOJ with any positive incentives to promote state and local agency reporting, like funds to support the modernization of health recordkeeping, transparent reporting of deaths in custody, or the digitization of historical paper records. With an ineffective stick and no carrots, BJS collected data on custodial deaths from law enforcement and carceral agencies on a voluntary basis, which created data quality and coverage issues. BJS decided to stop the collection of data on arrest-related deaths (ARDs) altogether in 2014 because of such issues. A 2015 OJP report found that BJS ARD data missed about 50% of estimated law enforcement homicides during 2003-09. Between 2003 and 2011, 14 states did not report any ARD data for a year, with Georgia not reporting any data for any year. The report cited significant challenges in collecting death-in-custody data due to “the lack of standardized modes for data collection, definitions, scope, participation, and the availability of resources.”

Despite these difficulties, BJS successfully set up data collection systems that captured data on deaths in U.S. prisons and jails. DCRA of 2013 required states, through their ‘State Administering Agencies’ (SAAs), to gather and report death-in-custody data to DOJ. However, from 2000-2019, BJS also went directly to law enforcement and carceral agencies to gather death-in-custody records. By working directly with carceral agencies and states, BJS consistently received records on deaths in custody from all prison agencies and, on average, over 90 percent of jails while they controlled DCRA data collection up until 2019. However, even though BJS reliably received data from prisons and jails, these records still contained discrepancies, including the underreporting of deaths in custody for particular law enforcement and carceral agencies.

Restricted Records—Little Transparency or Validation

DOJ interpretations of laws and regulations on data use also prevented DOJ from releasing detailed records on deaths in custody that could be validated to fully implement DCRA and that could serve as a necessary carceral oversight resource for the public.

As a federal statistical agency, BJS is prohibited by statute from releasing any research or statistical information that is identifiable to any specific person or for “any purpose other than the purpose for which it was obtained.” DOJ and some carceral agencies, though not all, have interpreted this statute to prohibit the release of custodial death questionnaires sent to BJS in the course of DCRA data collection. BJS similarly withholds facility-level data on deaths in custody unless users sign a “Restricted Data Use Agreement” preventing the further distribution of such data.

In principal, justifying the denial of individual-level, or even facility-level, death-in-custody data in this way is questionable. The purposes for data collection outlined in DCRA are to:

  1. Obtain complete and accurate data on all deaths in custody;
  2. Determine how to reduce the prevalence of those deaths; and to
  3. “examine the relationship, if any, between the number of such deaths and the actions of management of such jails, prisons, and other specified facilities relating to such deaths.”

The transparent and accurate collection and reporting of individual- and facility-level death-in-custody data is critical if DOJ is to meet these purposes for which DCRA data was collected.

First, it is difficult for DOJ to prove to Congress and the public that it has complete and accurate reporting of deaths in custody without transparently releasing data it has collected through DCRA. Because every record is aggregated, government records cannot be matched with publicly available records on deaths in custody to confirm reported cases and details match. Without signing restrictive data-use agreements, the public can only attempt to validate DOJ data by comparing aggregate counts from DOJ reports with totals from open-source records. In our project’s efforts to collect death-in-custody data, we produced this type of comparison and identified agencies that were apparently underreporting deaths in custody to BJS. These agencies include:

  • the Georgia Department of Corrections, which did not report 7 deaths (5% of annual agency deaths) to BJS in 2015 and 10 deaths (6% of annual agency deaths) to BJS in 2018;
  • the Nevada Department of Corrections, which did not report 7 deaths (17% of annual agency deaths) to BJS in 2019 and 17 deaths (37% of annual agency deaths) to BJS in 2018; and,
  • the Hawaii Department of Public Safety, which did not report 3 deaths (43% of annual agency deaths) to BJS in 2017 and 7 deaths (44% of annual agency deaths) to BJS in 2016.

After reaching out to these agencies to confirm whether these deaths were reported, only the Hawaii Department of Public Safety sent a reply acknowledging any error in reporting and confirmed they would correct their records with DOJ. The other agencies have yet to send a reply to our inquiries. While informative, the validation process described above does not shed light on which deaths were not reported to BJS or whether the listed information for each death, like the demographics of the individual or the location and circumstances of death, are even accurate.

Transparent validation of DOJ death-in-custody data became even more essential after BJA implemented its failed data collection plan in 2019. Alongside missing many cases of deaths in custody, BJA was collecting and reproducing incorrect data. The aforementioned BJS review of BJA DCRA data from 2019 found that 56 deaths were reported by BJA as occurring during arrest when they occurred in jails and prisons. As of now, Congress and the public cannot determine the extent of these reporting errors in DOJ death-in-custody data.

A Lack of Executive Will to Transparently Examine and Prevent Custodial Deaths

Alongside failing to collect and report reliable data on deaths in custody, multiple presidential administrations have failed to produce a Congressionally mandated report that determines how DCRA data can be used to reduce the number of deaths in custody and examines the relationship between custodial deaths and carceral facility management policy and practices.

Despite signing the renewed bill into law in December 2014, the Obama Administration first failed to meet the study requirements of DCRA. In December 2016, just shy of the two-year Congressional deadline for DOJ to produce a report, Attorney General Loretta Lynch submitted a 12-page report to Congress detailing the administration’s progress in implementing the law. It contained neither a study on how collected information could be used to reduce custodial deaths nor an examination of any relationships between custodial deaths and facility management policy and practices. It did contain a page-and-a-half plan for how DOJ planned to conduct that study in the future. The report argued that a consultant (or series of consultants) should be hired to write the report. This would enable DOJ to find “appropriate expertise” and to “avoid a potential conflict of interest, that could arise from analyzing data, as well as making recommendations concerning federal law enforcement agencies.”

By August 2018, the Trump Administration had hired no consultants. In fact, the Trump DOJ argued that Lynch’s 2016 study plan was the full report, such that there was “no plan to produce another report.” OIG determined in December 2018 that Lynch’s 2016 study plan was not a report that fulfilled the requirements of DCRA. The Trump Administration ended without another report being published.

Three years into the Biden Administration, and seven years past the Congressional deadline, President Biden has continued his predecessors’ failures to study deaths in custody. Instead, his administration issued an executive order calling for the Attorney General to report their plan to fully implement DCRA.

In this report DOJ outlined steps it has recently taken or is taking to implement DCRA including:

  • Assessing DCRA data collected by BJA for FY 2020 and 2021 for completeness and accuracy, particularly through the use of open-source databases;

  • Conducted a survey of SAAs regarding their DCRA data collection efforts, which showed that in a majority of states less than half of their law enforcement and carceral agencies are currently reporting DCRA-related data to them;

  • Advocating for Congress to update DCRA to allow for such reforms as: direct data collection from law enforcement and carceral agencies and increased funding for technical assistance to SAAs and law enforcement and carceral agencies;

  • Continuing to provide technical assistance to SAAs regarding DCRA data reporting; and,

  • Producing two studies through the National Institute of Justice (NIJ) to address the DCRA study requirements:

    • One study contains a literature review of existing knowledge on deaths-in-custody and an exploratory analysis of the relationship between facility characteristics and deaths in custody–this study was completed in December 2022; and,
    • One study on the potential influence of management in carceral facilities on deaths in custody and strategies to achieve better mortality outcomes in those facilities–this study is planned to be released by September 2024;

However, the Biden Administration’s 2022 literature review and proposed studies intended to fulfill the DCRA study requirement are inadequate because the DOJ data they rely upon is not transparent or validated. Aggregate analyses of these data, like those contained in these reports, may miss, or misrepresent essential details and patterns in deaths in custody. Additionally, even if the death-in-custody data collected by DOJ are complete and accurate, producing aggregate summary statistics or analyses of deaths in custody may mask significant management failures at particular carceral facilities or with particular law enforcement agencies. Congress and the public have a right to know where deaths are occurring in U.S. prisons, jails, and communities and that oversight is an important tool to reducing deaths in custody.

DOJ has also not established systems to reliably collect, release, or study data on deaths in custody past 2019. This failure to collect post-2019 data is especially concerning since the U.S. experienced a significant growth of deaths in custody in 2020, including the largest increase in deaths in U.S. prisons in the last 20 years. Early data suggests these numbers and rates of deaths in prisons have remained elevated through 2021. Unfortunately, if the public is to be made aware of recent trends in deaths in custody, it will not receive that information from DOJ or the Biden Administration.

III. UCLA Law Develops Open-Source Resources to Fill Death-in-Prison Data Gaps

In February 2023, our project released an open-source, standardized database of deaths in U.S. prisons covering at least 2019-2020. It provides records and data on deaths in prisons to temporarily supplement the now-defunct DCRA reporting originally produced by BJS. This database builds upon our previous research on deaths in custody in Florida and Texas prisons.

As of its release, the database contains data on deaths in all state prison systems and the Federal Bureau of Prisons. Our project has collected data on custodial deaths over the last three years covering all U.S. prison agencies, including individual-level data for 43 prison agencies and facility-level data for 44 prison agencies (including the Bureau of Prisons). The database contains records on deaths in prisons for both 2019 and 2020 for every prison system except for those operated by the New Mexico Department of Corrections, for which we have pending records requests for 2020 data sent in November 2022. For a few states, like Louisiana and Texas, we have relied on exceptional colleagues who had already collected the relevant records. The widespread availability of individual- and facility-level data illustrates that it is standard practice for law enforcement and carceral agencies to release detailed data on deaths in custody and bolsters the argument that DOJ should be able to collect, validate, and report transparent data on these cases to fully implement DCRA.

Our project will continue to fill the gaps in DCRA-related reporting left by DOJ by gathering, validating, and publishing information essential to stakeholders who seek to understand and reduce the number of deaths in custody in U.S. carceral facilities and communities. However, we do not believe this burden should fall on the public. DOJ must establish reliable data collection systems to transparently and accurately report data on deaths in custody so that Congress and the public can understand why these deaths occur and develop strategies to reduce their occurrence.

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