Police Still Not Reporting Deaths in Custody and New DOJ Rule Won't Help: Groups

The question of “How many Americans are actually killed in police custody?” is one that, unfortunately, does not have a readily available answer.

With increased attention on police killings in recent years, it has become clear that such fatalities are often not tracked and misreported, forcing news organizations and advocacy groups to piece together information about the untold number of lives lost at the hands of law enforcement.

Seeking to change that, on Monday, 67 leading rights and civil liberties organizations sent an open letter to the Department of Justice (DOJ) demanding that the federal bureau hold local law enforcement agencies accountable by giving teeth to the recently reauthorized Death In Custody Reporting Act (DICRA) and threatening to withhold grant money if they do not comply.

To give an idea of just how under-reported these statistics are, of the more than 18,000 law enforcement agencies nationwide, only 224 reported an approximate 444 police shootings to the Federal Bureau of Investigation (FBI) in 2014. However, citing Guardian and Washington Post reporting on these fatalities, the groups note, “we have reason to believe that annual numbers of people killed by police exceeds 1,000.”

The groups—which include the American Civil Liberties Union (ACLU), the Leadership Conference on Civil and Human Rights, NAACP, and the Government Accountability Project, among many others—are specifically raising concern over the implementation of DICRA, the details of which were made public earlier this month.

“The loopholes in these regulations are cavernous,” said Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights. “You can’t fix what you can’t measure. Police departments should report deaths in custody when they happen; it should be that simple. But these regulations make it clear that DOJ would rather bend over backwards to accommodate police departments’ dysfunction or reluctance. There should be simple procedures so that police can provide complete and accurate data or face clear consequences for non-compliance.”

The groups are particularly worried about the new implementation proposal that shifts responsibility for data collection and reporting from the states to the federal Bureau of Justice Statistics (BJS) through its Arrest-Related Deaths (ARD) program.

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“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,” the letter states.

To guarantee a complete and uniform reporting on these statistics, the groups further state that the federal government must demand “data that is reflective of all police-civilian encounters, including those encounters with people of color, women, youth, and people with disabilities,” as well as “data concerning sexual assault and misconduct by law enforcement agents.”       

And that mandate, they say, should be enforced with financial penalties for non-compliance, in the form of withholding some of the $4bn awarded to police departments annually in federal grant money.

“DICRA gives the Attorney General the discretion to subject states that do not report deaths in custody to a ten percent reduction of Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG) funds,” the letter states. “The financial penalty is critical to successful implementation of DICRA as voluntary reporting programs on police-community encounters have failed.”

Moreover, the coalition notes that under the current rule, the ARD program relies primarily on publicly available information, which largely means that investigative projects undertaken by the Guardian and the Washington Post are currently serving as the “national sources for data on deaths in police custody.”

“Relying on news coverage for the data reporting work of departments is especially problematic,” Henderson continued. “Newsrooms are shrinking across the country and—now more than ever—it’s the government that should be providing journalists with transparent data, not the other way around.”

The letter expresses a number of additional concerns about DICRA, notably its failure to “provide a clear definition for the term ‘custody,’ particularly instances where a fatal police shooting has occurred without an arrest.”

The letter comes ahead of a October 3 deadline for public comment on the DICRA implementation proposal.

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