In 2014, the same year Mike Brown, Eric Garner, Tamir Rice, Akai Gurley, and hundreds of other people were killed by police officers across the country, Congress passed the Deaths In Custody Reporting Act (DICRA) to ensure that all deaths in police custody are recorded and reported to the Attorney General. But nearly two years later, the implementation process has yet to begin — and key stakeholders are already concerned about whether the new law will even work.
On Monday, 96 organizations, including the American Civil Liberties (ACLU), the National Association for the Advancement of Colored People (NAACP), Amnesty International, and the Southern Poverty Law Center issued a joint statement to Attorney General Loretta Lynch detailing major problems with the Department of Justice’s (DOJ) proposed implementation strategy. They worry that the data collection will remain incomplete under the agency’s plan and that states won’t be held accountable for withholding crucial information.
Under the DOJ’s proposal, states would no longer be responsible for collecting data on in-custody deaths — including the agency responsible, personal details about the deceased, and the “circumstances surrounding the death” — even though their involvement was a fundamental component of the law when it was signed in 2014. Compiling data on the homicides would be entirely optional.
Instead of states producing quarterly data, the Bureau of Justice Statistics (BJS) would gather the information using its current Arrest-Related Deaths (ARD) program. But, as the signatories note, the BJS currently bases its ARD information on resources that are available to the public, including online articles and data compiled by news publications like the Washington Post and the Guardian — not comprehensive information reported by police departments and other law enforcement agencies themselves.
Indeed, the ARD program has been in effect since 2003 and proven grossly insufficient ever since. Under its current guidelines, states aren’t required to hand over data about in-custody deaths. Instead, they do so voluntarily — and use different mechanisms to gather the information. So the data is incomplete and unreliable.
Due in part to the voluntary nature of the program, roughly half of all “law enforcement homicides” between 2003–2009, as well as 2011, weren’t recorded. The percentage increased significantly in 2011, when the BJS used online search tools to discover additional homicides.
The 96 signatories remain unconvinced that the BJS’ current data collection methods can be trusted to fulfill DICRA’s purpose.
“States and law enforcement agencies, the entities closest to the data being sought, should be responsible for collecting and reporting deaths in custody to the federal government as mandated by law,” they wrote in the joint statement, which also called the reliance on public information “inadequate.” “It will be difficult for DOJ to get an accurate picture of trends in custodial deaths if state and local law enforcement agencies are not held accountable for collecting data after a death occurs.”
They also argue that the meaning of “custody” needs more clarity, and that state and local law enforcement agencies need to be punished if they don’t submit data.
A minuscule number of agencies — 224 of 18,000 — reported such deaths in 2014. Yet the DOJ’s proposal lacks language about sanctioning those that don’t comply with the new rules. DICRA currently stipulates that states that fail to provide the data should be stripped of federal grant money, but the organizations argue that the penalty needs to be included in the DOJ’s final guidelines and heavily enforced.
Opposition to the plan increased in the past month, with 29 organizations adding their names to the joint statement since August 30. Monday marks the last day stakeholders can comment on the DOJ proposal.
“You can’t fix what you can’t measure. Police departments should report deaths in custody when they happen; it should be that simple,” President and CEO of the Leadership Conference on Civil and Human Rights Wade Henderson said in an August statement. “But these regulations make it clear that DOJ would rather bend over backwards to accommodate police departments’ dysfunction or reluctance.”