Agency Oversight

Little-known law needs Justice Department attention

The Death in Custody Reporting Act (DCRA) requires the Justice Department to collect and manage reports on people who die while in government custody.

Tom Temin@tteminWFED

March 22, 2024 1:51 pm

8 min read

You might not have heard of the Death in Custody Reporting Act (DCRA), which was enacted a decade ago, but it requires the Justice Department to collect and manage reports on people who die while in government custody. The Federal Drive with Tom Temin spoke with David Janovsky, a senior policy analyst at the Project on Government Oversight (POGO), who said the DoJ has a long history of not quite living up to the law.

Interview Transcript:

Tom Temin And this law then, has been around again a while. What specifically is Justice supposed to do here?

David Janovsky So there are three main components to the Death and Custody Reporting Act. First, Justice is supposed to be collecting data on deaths in custody from local, state and federal law enforcement and corrections agencies. And it’s important to note that the definition of in custody is broader than people might initially assume. It covers any circumstance from the moment someone is interacting with law enforcement and not free to leave. So it could be a traffic stop, not even necessarily an arrest all the way through incarceration in a prison, jail or immigration detention.

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Tom Temin So it’s incumbent then on all of these agencies to generate reports in the first place.

David Janovsky That’s correct. The way it works technically is DOJ sends out sort of a list of questions that these agencies are supposed to answer, and it’s a little different on the state level and the federal level. But each agency is then responsible for filling these out and sending them back.

Tom Temin And in the research you’ve done over the years, do they actually make the reports and send them to the Justice Department?

David Janovsky It is a decidedly mixed bag. We have gotten to the point where we think most federal agencies that are responsible for reporting are doing so, though, it’s very open question whether or not they’re doing so accurately and completely. So far, the track record on the state and local side, which is lumped together, is much worse. Some of the most recent data we saw was a GAO audit done back in 2022 that found that DOJ numbers for 2021 were missing nearly 1,000 deaths that were publicly reported elsewhere. And we haven’t gotten any updated numbers since then to see whether that’s improved.

Tom Temin Well, is the issue that if they’re known publicly, that means that they might have been published or somehow reported locally by the agencies that caused it, or are they news reports? I guess, I’m asking, where is the break in communication happening, do you think?

David Janovsky I think that’s one of the things that we are pushing the Justice Department to really suss out. So far, the best sources of information on deaths in custody are from news reports like the Washington Post. And that’s a problem. It’s great that there are third party researchers that are able to uncover so much of this data, but without sort of the authoritative stream, there’s no way to be certain that anyone’s collecting the full picture.

Tom Temin Well, does justice have an apparatus in place to collect and manage the reports, presuming people would then go ahead and report them up to justice?

David Janovsky It took them a long time to get there. Over the last year, the sense that I’ve gotten is that they have finally beefed up the apparatus. But for the first five years of this law’s existence, there was really a sort of bureaucratic game of ping pong going on among some components within the Justice Department, to see who was going to get left holding the bag.

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Tom Temin And which part of justice actually is the belly button to push under the DCRA, under the law.

David Janovsky It’s been split into two pieces. So the Office of Justice Programs is the umbrella where all of this is happening. But federal data goes to the Bureau of Justice Statistics, which, as the name implies, has much more of track record collecting statistical data. The state and local data goes to the Bureau of Justice Assistance, which is primarily a grantmaking entity. And I think one of the main problems we’ve seen is when you give a major data collection program to a grantmaking entity, there’s going to be a certain amount of friction getting the program up and running.

Tom Temin We’re speaking with David Janovsky. He is senior policy analyst at the Project on Government Oversight. What levers does Justice have to try to maybe get some more oomph behind its desire or its request to these local and state law enforcement agencies to send in the reports? And I guess the corollary question is, is it easy to do is the reporting apparatus in the formats required and so on doable by even small police departments, for example.

David Janovsky Let me take that last piece first. Well, obviously any data program is going to require a little bit of work. Someone’s going to have to fill out the form. It’s important to remember that we’re talking about deaths in custody here. First of all, those should be incredibly rare if these agencies are doing their jobs correctly. And second of all, if someone dies in your custody and you’re a law enforcement or corrections agency with the responsibility to keep people in your custody alive, that should be sort of an earthshaking event. It should not be hard to fill out. At the moment, it’s six questions that the Justice Department is asking, and one of them is the name of the person who dies. These are serious events that people should already be aware of if they’re happening, so it’s hard to give too much credit to the administrative burden in question. In terms of what justice can do to get this information, it’s got a carrot and it’s got, in terms of the law, a stick. The law says that if agencies don’t report, then this is tied to a grant program. The Burden Justice Assistance Grants, which is one of the handful of major grant programs to state and local law enforcement. And if folks don’t comply, then they could be subject to a 10% cut in that grant allocation. So far, Justice has shown no appetite to even put that penalty on the table. So at the moment they’re using the carrot approach, which is rolling out technical assistance and hoping that people comply.

Tom Temin And adding all of this up then does anyone or do you have a sense of how many deaths of this nature actually occur every year, and how many are in the justice database? What’s the delta? Is that known?

David Janovsky That’s the problem. We’re doing this without any real sense of what the ultimate denominator is. Like I said, we haven’t gotten any further readout on the quality of the state data since that GAO ordered a couple of years ago where they were missing a thousand deaths. I’m not aware of any sort of authoritative counterpoint to the federal DCRA data to make us aware of how accurate that is, but we do know from past programs and from the work other folks are doing. It’s thousands of people a year.

Tom Temin And do we even know where the majority of those happen, which would at least give the Justice Department and other agencies some idea of where to begin corrective programs, for example. Do most of them happen in prisons, or do they happen between the arrest and prison or something?

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David Janovsky Again, without this program working, we can’t really say for sure. I think it’s a reasonable assumption that state prisons, just because of the size of the population, are going to have the most people dying in custody. But it’s impossible to say until this program works the way it should.

Tom Temin Yeah. So what has to happen, do you think, for the program to work as it should at this point?

David Janovsky Well, we’re a decade into the existence of the law now, and we’re focusing our own advocacy on three main things. First of all, we need to get that report compliance up to 100%. That ideally would involve both the carrot and at least a plausible threat of the stick. A penalty is no good if you say up front that you’re never going to use it. So we would like to see justice get a little more serious about that. In addition to the technical assistance it’s rolling out. The second piece is we need to make sure they’re asking the right questions. So far the problems we know are that folks haven’t been answering the questions they’re being asked. But it’s important to note, even if everyone was filling out these forms 100% of the time, they wouldn’t tell us very much because of the way the Justice Department is asking for these questions. An overwhelming amount of the important information that you would need to look at this data and think about how you could prevent these deaths, comes into question that basically says, tell us what we need to know, which is not a great way to run a nationwide data program. And the third piece is this data needs to be made public in some way. And so far, there’s no real plan for how to make the state data accessible. And the federal data that does get some top line numbers released, you can’t learn very much from.