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Senators Rail at DOJ Failure to Report In-Custody Deaths

by Jayson Hawkins

Congress has yet to demand systemic changes that could seriously reduce deaths in custody of law enforcement. This reluctance may stem in part from the fact that the U.S. Department of Justice (DOJ) fails to accurately count the number of people who die in custody, despite being ordered by Congress to do so.

Congressional action on deaths in custody traces to passage of the Death in Custody Reporting Act (DCRA) of 2000. That law required DOJ to collect in-custody death data including gender, race, age, location and circumstances. States were compelled to comply if they wanted Violent Offender or Truth in Sentencing grant funding, which all states did. DOJ assigned the collection and compilation duties to its Bureau of Justice Statistics (BJS), and within a year, the first DCRA reports were issued. Even after the act expired in 2006, BJS continued this work.

In 2014, Congress reauthorized DCRA and expanded its mandates to include more detailed reports and the ability of the U.S. Attorney General to withhold Justice Assistance Grants from states that did not fully comply with data collection efforts. This last aspect of the revised law ran afoul of the BJS mandate to operate outside any other aspect of DOJ operations, so in 2016 data collection was reassigned to the Bureau of Justice Assistance (BJA).

Once the DCRA project was moved to BJA, effective implementation essentially stopped. Failed government bureaucracies often evade public notice for years, and it was not until 2022 that the DCRA debacle came to the attention of interested, and frustrated, members of Congress. The Senate Homeland Security and Governmental Affairs Committee held hearings on the failed implementation of DCRA on September 22, 2022. There, in a rare show of bipartisanship, both Democrats and Republicans vented their fury.

The committee found that DOJ was six years late in publishing the reports mandated by DCRA. Moreover, BJA had undercounted deaths in custody by at least 990 for 2020, and what data the agency had collected was tarnished by the fact that roughly 70% of the recorded deaths were missing at least one statutorily required piece of information.

Sen. Jon Ossoff (D-GA) was deeply critical of DOJ’s lapses. “This failure undermines efforts to address the urgent humanitarian crisis ongoing behind bars across the country,” he said. Wisconsin Republican Sen. Ron Johnson was equally frustrated, telling DOJ: “You’ve utterly failed. This isn’t that hard.” He added that in only a few months the Government Accounting Office “got us better statistics than the DOJ did over a period of years.”

The committee issued a detailed report outlining the flawed implementation of DCRA and connected these failures to DOJ’s continued inability to successfully assist local police agencies in lowering rates of deaths in custody. The report did not contain specific recommendations on how DOJ could get in compliance. See: Uncounted Deaths in America’s Prisons and Jails: How The Department of Justice Failed to Implement the Death in Custody Reporting Act, U.S. Senate Homeland Security Committee, Permanent Subcommittee on Investigations (2022).

Additional sources: Washington Post