The DOJ has no clue who lives or dies in government custody

Never underestimate the ability of the government to muck something up. 

That’s the subtext of a recent report from the U.S. Department of Justice (DOJ) detailing its failures to comply with the Death in Custody Reporting Act (DCRA). For those unwilling to sift through the laundry list of excuses, the short summary is that the DOJ doesn’t know how many Americans die in government custody each year and doesn’t have much of a plan to get this legally required information. 

The history recited by the DOJ of how it reached this point would likely confirm most government skeptics’ worst suspicions of the limits of government competence. After all, for almost two decades DOJ managed to collect information on deaths in custody with relatively few issues. This run of success only ended after DOJ decided in December 2016 that its own tortured reading of a 2014 update to the DCRA prevented it from taking the common sense, effective path in almost every instance. Data shortfalls and missed opportunities in the years following predictably ensued. 

Sprinkled throughout the account and DOJ’s requests to Congress is a helplessness that is, frankly, stunning considering the DOJ’s aggressive initiative and willingness to push the bounds of statutory interpretation in so many other critical areas. It appears the product of a government agency more interested in finding reasons not to do something than one truly interested in executing the law. 

One of the Biden administration’s own allies, Sen. Jon Ossoff (D-Ga.), recently called DOJ to task for these problems. Working with the Government Accountability Office, his Senate subcommittee conducted a review of deaths in custody in the fiscal year 2021 that highlighted a DOJ undercount of at least 990 deaths. Their report went on to note that 70 percent of DOJ’s data was incomplete and that “DOJ’s failures were preventable.” 

So, what’s included in DOJ’s Swiss cheese-style data collection? According to its own estimates of its errors, the DOJ captures no more than 82 percent of deaths in state prisons, 61 percent of deaths in local jails and as few as 29 percent of arrest-related deaths.

But, more importantly, those uncounted deaths represent mothers and fathers, daughters and sons, neighbors and friends. Human beings over whom the government has asserted the ultimate form of control. If absolutely nothing else, the government should not get to claim ignorance around who lived or died under its watch or the circumstances of any deaths. This is hardly asking too much of our government. In fact, it would be irresponsible not to ask. 

Furthermore, prisons and jails are critical tools for incapacitation and rehabilitation while arrests serve as one of the primary means by which law enforcement maintains order and safety in our communities. If the authorities involved cannot be bothered to adequately track matters of literal life and death, what confidence can Americans have that they’re doing all they can to protect both the public and their rights? How are we to identify bad practices or promote positive ones? 

DOJ has clearly laid out its position that without further congressional action it will valiantly try and likely fail to close the reporting gap. While DOJ should be subject to public scrutiny for its willful, unnecessary defeat on this issue, Congress must work with the DOJ that it has, not the one it might want. Relatively brief legislation could quickly clear up issues surrounding how DOJ can collect information as well as provide greater and more effective incentives for states and localities to provide it. 

In the meantime, as DOJ considers its data collection options, it should try acting more like the reasonable public servants that Americans deserve, especially where the deaths of human beings in their custody are concerned, and less like lawyers dealing in bureaucratic non-answers. 

Lars Trautman is the national director of Right on Crime.