New Report Highlights the Urgent Need to Implement the Death in Custody Reporting Act

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 U.S. government doesn’t 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 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. But as of 2023, DOJ has yet to collect reliable data, let alone produce the required study.

It’s clear from the research on deaths in custody presented to Congress, and from 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.

And 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 decision-makers, advocates, and researchers understand the full breadth of this problem. Collecting complete, accurate in-custody death information is a critical step toward reducing deaths.

A new report from The Leadership Conference Education Fund and the Project on Government Oversight — “A Matter of Life and Death: The Importance of the Death in Custody Reporting Act” — 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 DOJ’s current plan. It then identifies a series of key challenges that remain unresolved.

Every year that data 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. States that fail to comply face up to a 10 percent reduction to their awards under the Edward Byrne Memorial Justice Assistance Grant Program. DOJ 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 DOJ 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, 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.

DCRA Today

More than eight years after DCRA was enacted, DOJ 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.

In the final months of 2022, DOJ 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.

The Justice Department can implement several changes to dramatically improve the accessibility and usefulness of DCRA reporting, including making use of the compliance mechanism built into the DCRA statute, redesigning collection forms to more robustly collect data, producing studies that address DCRA-mandated research questions, and committing to more timely data reporting.

For more recommendations for DOJ, and to learn more about the urgent need to implement DCRA, read “A Matter of Life and Death: The Importance of the Death in Custody Reporting Act.”