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The Death in Custody Reporting Act:�Why It’s So Hard to Get Good Data on In-Custody Deaths

Ethan Corey�Research & Projects Editor��

ethan.corey@theappeal.org

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The year was 1994…

TLC’s “Creep” dominated the charts, and Mike Masterson, an investigative journalist at the Asbury Park Press, was digging into jail deaths… He’d already spent more than a decade covering the issue. His reporting for the Chicago Sun-Times in the 1980s, for instance, helped uncover systematic misclassifications of violent deaths in jails as suicides, often in apparent cover-ups of brutality by correctional officers. When he came to the Asbury Park-Press in 1994 to head up their national investigative unit, he wanted to know how big of an issue this was nationally. There was one problem: No one was keeping track of who was dying in America’s jails and why.��Fresh from his experience at NICAR (okay, I made that up), Masterson knew just what to do: build his own database. Masterson used press reports to estimate that more than 1,000 people had died in local jails nationwide during a four-month period, many under suspicious circumstances. He used this data as the basis for an award-winning series of stories published in early 1995, but he wasn’t ready to leave the topic behind. Tracking jail deaths nationwide shouldn’t be the responsibility of a Jersey Shore newspaper—surely someone with more money and resources should compile a comprehensive national database. Shocked by the lack of official data, he traveled to Washington, D.C. to distribute copies of his articles to members of Congress.��“Elmer Johnson, a 35-year-old black Charleston resident, had killed himself in a county jail cell on Oct. 23, local authorities had already ruled. Coroner Charles ‘Ricky’ Penrod settled into the exalted judicial chair. He had called an inquest only because the black lawyer seated before him had requested one. ��…��The official version was that Johnson had concocted an intricate clothing arrangement that knotted one black sleeve shirt around his neck and the other around a shower rod. The shirt was then purportedly held in position on the left side of the rod by one sleeve of Johnson’s checkered jacket. The other sleeve was tied to an electrical conduit yanked from the wall nine feet above the floor.��This supposedly occurred in a dark cell in 20 minutes, according to testimony.”�

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The Death in Custody Reporting Act of 2000

The Death in Custody Reporting Act of 2000 required states that receive federal prison construction funds to “report[], on a quarterly basis, information regarding the death of any person who is in the process of arrest, is en route to be incarcerated, or is incarcerated at a municipal or county jail, State prison, or other local or State correctional facility (including any juvenile facility) that, at a minimum, includes— � (A) the name, gender, race, ethnicity, and age of the deceased;� (B) the date, time, and location of death; and� (C) a brief description of the circumstances surrounding the death.”

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The Death in Custody Reporting Act of 2013 (passed in 2014)

Outrage sparked by killings of Michael Brown and Eric Garner helped prompt Congress to revive the Death in Custody Reporting Act
The 2014 version of the bill added a penalty for non-compliance: States that failed to report deaths as required could lose up to 10% of their Byrne Justice Assistance Grant funding, which provide roughly $270 million to support state and local law enforcement each year

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What happened in 2019?

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People only read the headlines, DCRA edition

Masterson’s 1995 story included a quote from a BJS official who explained exactly why BJS shouldn’t be responsible for collecting DCRA data
Twenty years later, DOJ suddenly remembers that BJS isn’t the right agency to collect DCRA data

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But the Bureau of Justice Assistance was worse…

The BJA administers grants; they have little experience managing nationwide data collection efforts like that envisioned in DCRA.
BJA relied on state governments to act as intermediaries
Byrne JAG penalties could only be applied statewide, so local jails that don’t receive Byrne JAG money lacked incentives to cooperate
2018 DOJ Inspector General report: ��“Although we cannot assess the effectiveness of the Department’s state DCRA data collection because it has not yet begun, we believe that if the Department implements its current plan it may not produce complete data about deaths in custody. This is because BJA plans to implement a data collection methodology that, similar to the historical BJS ARD Program data collection methodology, which captured only about 50 percent of law enforcement homicides, would not fully leverage open sources to establish an initial population of law enforcement homicides or other deaths in custody. Additionally, we found that like BJS’s historical ARD Program data collection, BJA is planning to collect data from state-level agencies instead of from local agencies that may have more specific knowledge about deaths in custody.”

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The DOJ’s FOIA Loophole

DCRA directs “the Attorney General” to collect in-custody death data from the states
The Attorney General delegated this responsibility to the Bureau of Justice Statistics and later the Bureau of Justice Assistance
Data collected by the BJS or the BJA is protected by 34 U.S.C. § 10231, which states “No officer or employee of the Federal Government…shall use or reveal any research or statistical information furnished under this chapter by any person and identifiable to any specific private person for any purpose other than the purpose for which it was obtained”

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The Privacy Argument

The details surrounding deaths in custody can include sensitive, graphic, or upsetting information
Medical information, mental health histories, etc.

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This would be more convincing if they applied it to their own reports…

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K-anonymity was developed by Latanya Sweeney, a public health researcher at Harvard, after she noticed that she could identify medical records belonging to then-governor of Massachusetts Bill Weld in a redacted dataset by cross-referencing publicly available information with the dataset.��The thing is, it might be possible to do this for someone like Bill Weld—a public figure for whom there is already a large amount of information available—but that doesn’t mean you can do it for any arbitrary person in a dataset. It might be easy to figure out which row in a dataset belongs to, say, Jeffrey Epstein, but that’s only because most details about his death are already publicly available.

At the end of the day, the question is whether the privacy interests of the deceased and their family members outweigh the public interest in understanding who is dying in custody and why.

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Someone should really look into what’s going on in “Redacted”...

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We won!!!!!!!!!!!!!!

“More broadly, disclosing this data serves the public interest in understanding ‘who is dying in custody, how, and why[.]’”

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Of course, getting the data is only half the battle…

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This seems fine, right?

“The deputy spoke with Coroner Hetrick. It had been agreed upon between Hetrick and Warden DeRose that an autopsy of the decedent would not be required and that the decedent’s death would be attributed to his liver cancer.”

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Where you can actually get some data…

Official & Already Public

Texas
California
Minnesota!
NYC
Phoenix

Unofficial sources

Incarceration Transparency (Louisiana & South Carolina)
PennLive / Pittsburgh Institute for Nonprofit Journalism (Pennsylvania)
The Frontier (Oklahoma)
Reuters
HuffPost

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For everywhere else…

FOIA lawsuits by USA Today and The Appeal both resulted in rulings requiring DOJ to disclose data collected under DCRA

USA Today won the release of data without redactions; deadline of Apr. 8 for government to release data or appeal the decision
The Appeal won release of data, but judge hasn’t made a ruling on redactions

Depending on the state, you might be able to send a public records request to your State Administering Agency (the entity responsible for managing JAG grants—see https://bja.ojp.gov/program/dcra/find-your-state-administering-agency)