DOJ plan for police in-custody death reporting needs teeth, civil rights activists say

For a couple of years now, a regulation requiring police departments to report deaths in custody has gone largely ignored.

Perhaps that's how the deaths of Eric Garner and Tamir Rice were absent from the Department of Justice's official record of homicides by officers in 2014. That year, just 1% of 18,000 law enforcement agencies in the United States reported whether deaths had happened at all.

As the DOJ now seeks to update next year's guidelines for the Death In Custody Reporting Act, or DICRA, dozens of civil rights groups have one major request: Give the law some teeth so that reporting is mandatory.

"You can't fix what you can't measure," Wade Henderson, president and CEO of the Washington, D.C.-based Leadership Conference on Civil and Human Rights, said in a statement Tuesday. More than 60 civil rights, LGBTQ and criminal justice organizations, including the NAACP Legal Defense and Education Fund, the Southern Poverty Law Center and the ACLU, signed a letter on Monday demanding that the DOJ get tougher about transparency in policing.

"Police departments should report deaths in custody when they happen; it should be that simple," Henderson said in the statement. "But these regulations make it clear that DOJ would rather bend over backward to accommodate police departments' dysfunction or reluctance [to report the deaths]."

On Aug. 4, the DOJ opened a 60-day public comment period, during which groups and members of the public can offer policy feedback on the DICRA implementation proposals. The federal agency's proposals include shifting some of the reporting responsibilities from state and local law enforcement agencies to the Bureau of Justice Statistics, as well as relying on publicly available data that may be found in media coverage and standardizing data collection forms.

The DOJ published its proposals in a federal registry and the civil rights groups responded by letter. Some of those proposals are as follows:

Using the Bureau of Justice Statistics' existing data-collecting program

Known as Arrest-Related Deaths, this program was created in 2003 as part of a previous incarnation of DICRA. According to the DOJ proposal, the program has been the only national data collection that attempts to catch all U.S. arrest-related deaths. The problem with leaning more on the program is that it takes the onus off of the police departments that are "closest to the data being sought."

"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," the groups state in the letter they sent to the DOJ.

Facilitating data collection with information sourced from press clippings

To help the Bureau of Justice Statistics find which police departments need to report in-custody deaths, the DOJ proposes compiling a list of potential arrest-related deaths by crawling through newspapers and media-created databases.

While the databases on police-involved deaths by the Guardian and the Washington Post have been lauded by journalism authorities for their scope, the government should not see the outlets' projects as a reliable substitute to a mandate on police data collection at the local level, civil rights groups said in their DOJ letter.

"It is unlikely that national media attention and resources can remain on policing indefinitely," the groups' letter reads. 

"Newsrooms are shrinking across the country," Henderson added in a statement. "And — now more than ever — it's the government that should be providing journalists with transparent data, not the other way around."

The DOJ's proposal does not say how it will penalize any of the approximately 19,450 state and local law enforcement agencies in the U.S., if they don't comply with DICRA.

"The financial penalty is critical to successful implementation of DICRA as voluntary reporting programs on police-community encounters have failed," the group's letter states.

The DOJ's Office of Justice Programs provides nearly $4 billion in grant awards, much of it on the condition that local and state police provide them with data. This is how the Bureau of Justice Statistics has been able to collect data on racial profiling in traffic stops and arrests since the late 1990s.

The DOJ agrees with the civil rights community that comprehensive and accurate data collection is important. In its DICRA proposal, the DOJ said the data is "critical for [police] to demonstrate responsiveness to the citizens and communities they serve ... and accountability for the actions of officers."

With the passage of DIRCA in December 2014, the government moved closer to a goal of producing reliable national data on police-involved deaths. The law's enactment came amid national attention on the deaths of African-Americans at the hands of police — at the time, neither the federal government nor media organizations could say with certainty how many people had died in police custody or during an arrest.

Henderson, the Leadership Conference president, said civil rights leaders aren't exactly calling on the DOJ to make transparency harder on police departments. "There should be simple procedures so that police can provide complete and accurate data or face clear consequences for non-compliance," he said in a statement.