Leadership Conference Comments to DOJ on Death in Custody Reporting Act Program Collection

July 12, 2024

James Steyee
Program Analyst (DCRA)
U.S. Department of Justice – Office of Justice Programs
810 7th St., NW
Washington, D.C. 20531

RE: RFI Response – Death in Custody Reporting Act Program Collection, Document Number 2024-10278

Dear Mr. Steyee,

On behalf of The Leadership Conference on Civil and Human Rights, a coalition charged by its diverse membership of more than 240 national organizations to promote and protect the civil and human rights of all persons in the United States, we write in response to the Department of Justice (DOJ) request for comments (RFI) on the Death in Custody Reporting Act (DCRA) Program Collection.

The Leadership Conference and our members have long been committed to transparent governance and the full implementation of DCRA. A comprehensive census of deaths in and around the criminal legal system is not just the law under DCRA but is also a critical step to achieving a just, free, and equitable society. The authority that society grants to law enforcement, jail, and prison officials gives them the power to limit our personal freedoms. This comes with a fundamental responsibility to, at the very least, keep those they detain safe, healthy, and alive. When law enforcement and carceral facilities fail in this responsibility, the government must be able to identify and mandate changes to prevent future deaths. That requires accurate, reliable, and consistently reported data.

The Critical Importance of DCRA Data Collection

In February 2023, in partnership with the Project on Government Oversight (POGO), The Leadership Conference published A Matter of Life and Death: The Importance of the Death in Custody Reporting Act,[1] which outlines the need for complete, accurate, and transparent data to reduce preventable deaths in custody. Our report comprehensively delineates problems with, and recommendations to improve, the existing collection forms. Since the publication of our report, we have seen and appreciate the effort and urgency that DOJ has exhibited to improve DCRA collection. We have met multiple times with staff at DOJ, collaborated with other advocates across the country, and discussed needed improvements with lawmakers and their staff.

Despite the critical nature of this data collection and the fact that DCRA was reauthorized in 2013, preventable deaths in custody remain a crisis.[2] Comprehensive, timely information that could save lives continues to be unavailable to researchers, policy makers, and the public.[3] The urgency of this data collection cannot be overstated.

Existing data show that thousands of individuals die in custody or during arrests each year, yet there is still no comprehensive information on how many people die in custody, who they are, how they die, or how best to prevent future deaths.[4] The long-standing consequences that stem from the failure to collect complete, accurate, and transparent data on deaths in custody are stark and troubling. There are hundreds of preventable deaths that occur in custody.[5] It is important to note that for every high-profile death in custody that is covered by national media, there are dozens more deaths that most people never hear about. Horrific conditions of confinement, including medical neglect, use and abuse of solitary confinement, consistent failure to conduct wellness checks, malnutrition, and dehydration all contribute to preventable deaths.[6]

Our nation’s decisionmakers do not have a full understanding of the scope of preventable deaths in custody, which is precisely why full implementation of DCRA is not a luxury, but a necessity.

Without clear, accurate, and publicly accessible information on deaths in custody, policymakers, researchers, and advocates are unable to recommend and make the changes necessary to reduce preventable in-custody deaths.

DCRA may be a data collection, reporting, and research statute, but it is grounded first and foremost in human rights. Collecting complete, accurate in-custody death information is a critical step toward reducing deaths. No amount of administrative burden, logistical challenges, or localized refusal to comply justify continued failure to collect and provide in-depth public reporting on deaths in custody. DCRA is not a lofty goal; it is an essential data collection, one that when done comprehensively and reported to the public will save lives.

Naturally, compliance issues affect the quality of DCRA data. But even if all agencies were 100 percent compliant in submitting reports, the methodological problems with how the Justice Department collects data would still lead to data of a quality so poor as to jeopardize its usefulness. We were disappointed to learn that DOJ seeks only to continue the existing DCRA forms rather than revise and expand them at this time. We hope to see and will be advocating for quality efforts to update these forms soon.

Bureau of Justice Assistance Collection Forms and Recommendations for Improvement
Bureau of Justice Assistance (BJA) DCRA forms are brief and garner minimal data from state and local law enforcement and corrections officers. Most notably, the Performance Measures Questionnaire[7] includes no questions on the following: weapons used by the decedent and the officers or agency personnel; the reason for law enforcement use of force; injuries to law enforcement personnel and civilians; decedent behavior, including types of resistance; or the decedent’s perceived state of mind. Instead, the BJA form attempts to capture all of this information in a qualitative text field with the following instructions: “Please provide a brief description of the circumstances leading to the death (e.g., details surrounding an event that may have led to the death, the number and affiliation of any parties involved in the incident, the location and characteristics of an incident, other context related to the death, etc.).”[8] This question technically meets the statutory requirement to collect “a brief description of the circumstances”[9] surrounding deaths but falls far short of robust, useful data capture.

An open-ended text-based approach runs the risk that not all relevant information will be captured. Additionally, using text rather than standardized fields complicates subsequent analysis by making it harder to compare entries. The government cannot collect inferior data and expect quality research as a result. Collection forms must be designed to collect sufficient data to thoroughly study deaths in custody. This requires reengineering the forms with purpose, intent, and technical expertise.

BJA and the Bureau of Justice Statistics (BJS) should collaborate to create forms that will be used across programs and departments and that will not require revision for several years. They should consider the following while redesigning collection forms:

• Demographic variables for race, ethnicity, and age brackets should, at a minimum, meet the OMB Directive 15 reporting standards,[10] which will allow for easy comparability and use. Going forward, DCRA forms should always be updated to include any future adjustments to Directive 15. Updating DCRA collection to include at least the minimum OMB standard for race could also have positive implications for other law enforcement data collections at the federal, state, and local levels.
• Questions relevant to arrest-related and in-custody deaths should appear on BJA and BJS collection forms.
• Questions shared by BJA and BJS forms should have identical wording and answer sets.
• To the extent possible, questions should be specific, with checkbox or multiple-choice answers that allow for clear data comparison.
• Forms must capture killings by law enforcement officers as a separate category, rather than capturing these deaths in an “other” category.
• All forms should include one question at the end of the survey with an open text box answer where additional details about the death in custody can be reported. However, the forms should not rely on text boxes as the primary or only means of eliciting key information.
• Forms must also capture deaths of bystanders that are a consequence of police action.
• Questions about cause of death should be structured in a way that clearly distinguishes between accidents and intentional deaths.

Once the forms are redesigned, they should be kept consistent over several years. Additions can be made, but standardized questions and answers between forms should remain the same for research and evaluation.

Minimization of Administrative Burden
The Department must not prioritize alleviation burden of collection concerns over complete, accurate, and transparent death data. To minimize the burden, without sacrificing information necessary to improve quality of life and reduce deaths in-custody, we urge the DOJ to consider methods that require law enforcement, jails, and prisons to work smarter by imbedding DCRA collection into reporting systems that are already in use.

To develop new and improved approaches that could streamline DCRA collection, the DOJ can learn from other initiatives it has pursued to improve administrative processes for criminal legal system actors. For example, consider what the DOJ did to create a national police accountability database as required by the Biden administration Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety (Executive Order on Policing).[11] The DOJ chose to partner with the International Association of Directors of Law Enforcement Standards and Training (IADLEST) to build out the National Decertification Index (NDI). NDI is a long-standing accountability framework utilized by many local and state law enforcement agencies and, when updates are completed, it will also include accountability and accreditation standards.

Similarly, DOJ could partner with law enforcement, jail, and prison software vendors to standardize death in custody questions in record management systems. This could be done through direct partnership or the issuance of guidance on what fields should be included in their products to improve DCRA data collection and accuracy while easing the administrative burden for system actors. If all vendors embedded standardized DCRA forms and questions into their reporting systems, it would make data collection easier for individuals, departments, and states. Departments could be incentivized to utilize systems that include DCRA forms through the accreditation standards that were developed by DOJ to fully implement the  Executive Order on Policing.

Thank you for your consideration of our views. We urge DOJ to review our February 2023 report on DCRA and the recommendations enumerated in this comment.[12] In addition, we call your attention to the comment submitted by POGO to the current RFI and uplift their urgent recommendations to improve DCRA data collection. We also want to amplify all comments submitted by people who have been directly impacted by the deaths of loved ones in custody.

If you have any additional questions please contact Bree Spencer, senior program director, Justice at [email protected].

Sincerely,

Jesselyn McCurdy
Executive Vice President for Government Affairs

[1] The Leadership Conference on Civil and Human Rights and the Project on Government Oversight. “A Matter of Life and Death: The Importance of the Death in Custody Reporting Act.” Feb. 2023. https://civilrightsdocs.info/pdf/reports/DCRA-Report-2023.pdf

[2] American Bar Association. “Death in Custody: A National Crisis”. Oct. 9, 2023. https://www.americanbar.org/groups/crsj/events_cle/recent/deaths-in-custody-a-national-crisis/.

[3] United States Government Accountability Office. “Additional Action Needed to Help Ensure Data Collected by DOJ Are Utilized.” Sept. 20, 2022. https://www.gao.gov/assets/gao-22-106033.pdf.

[4] Ibid.

[5] Levin, Sam. “Hundreds of deaths in US prisons linked to policy violations and failures – report.” The Guardian. Feb. 15, 2024. https://www.theguardian.com/us-news/2024/feb/15/prison-death-causes-preventable-justice-department.

[6] Lartey, Jamiles, & Thompson, Christie. “How Federal Prisons Are Getting Worse.” The Marshall Project. March 2, 2024. https://www.themarshallproject.org/2024/03/02/senate-federal-prison-senate-deaths.

[7] Department of Justice – Bureau of Justice Assistance. “Performance Measures Questionnaire.” Revised Jan. 2022. https://bja.ojp.gov/funding/performance-measures/dcra-measures-questionnaire.pdf

[8] Ibid.

[9] P.L. 113-242 (2013).

[10] Office of Management and Budget. “Flexibilities and Best Practices for Implementing the Office of Management and Budget’s 1997 Standards for Maintaining, Collecting, And Presenting Federal Data on Race and Ethnicity (Statistical Policy Directive No. 15).” July 2022. https://www.whitehouse.gov/wp-content/uploads/2022/07/Flexibilities-and-Best-Practices-Under-SPD-15.pdf.

[11] “Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Safety.” 87 Fed. Reg. 32945. May 21, 2022. https://www.whitehouse.gov/briefing-room/presidential-actions/2022/05/25/executive-order-on-advancing-effective-accountable-policing-and-criminal-justice-practices-to-enhance-public-trust-and-public-safety/.

[12] The Leadership Conference on Civil and Human Rights and the Project on Government Oversight. “A Matter of Life and Death: The Importance of the Death in Custody Reporting Act.” Feb. 2023. https://civilrightsdocs.info/pdf/reports/DCRA-Report-2023.pdf