67 Organizations Urge Justice Dept. to Improve Data Collection Mandate on Deaths in Police Custody

67 national and local criminal justice, civil rights, human rights, faith-based, immigrants' rights, LGBTQ, and open government organizations urged the Department of Justice (DOJ) to strengthen its proposed rule outlining the process for police departments to collect and report data about people who die while in police custody.

In a letter sent yesterday, the organizations responded to DOJ's proposal for implementing the Deaths in Custody Reporting Act (DICRA), which requires police departments across the country to disclose details to the federal government about custodial deaths. DICRA was signed into law in 2014 in response to a troubling lack of reliable data on these deaths and DOJ is currently collecting comments on its implementation proposal that was published August 4, 2016. The comment period will close on October 3, 2016. Signers include The Leadership Conference on Civil and Human Rights, the ACLU, the NAACP Legal Defense and Educational Fund, the United Methodist Church, the National Immigration Law Center, the National LGBTQ Task Force, the Southern Poverty Law Center, among many others.

In their letter, the organizations list a number of deficiencies in the proposal that are a "departure" from DICRA, including a lack of accountability to ensure state and local police are actually reporting the data; a failure to condition federal funding on adequate reporting; a disturbing reliance on media reports instead of police departments for data; a lack of clarity on how DICRA applies to federal agencies; and the absence of a clear definition of the word "custody."

The groups are especially concerned about the lack of consequences for not reporting accurate data because "voluntary reporting programs on police-community encounters have failed. Only 224 of the more than 18,000 law enforcement agencies reported about 444 fatal police shootings to the Federal Bureau of Investigation (FBI) in 2014, though we have reason to believe that annual numbers of people killed by police exceeds 1,000."

"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."

"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 groups also want the regulations to include a broader range of potential areas of police misconduct. "To achieve complete and uniform data collection and reporting, the federal government must solicit disaggregated data that is reflective of all police-civilian encounters, including those encounters with people of color, women, and people with disabilities. Data concerning sexual assault and misconduct by law enforcement agents should also be collected and reported," they said.

August 29, 2016

The Honorable Loretta Lynch The Honorable Sallie Yates The Honorable Karol Mason

Attorney General Deputy Attorney General Assistant Attorney General

U.S. Department of Justice U.S. Department of Justice U.S. Department of Justice, OJP

950 Pennsylvania Avenue, NW 950 Pennsylvania Avenue, NW 810 Seventh Street, NW

Washington, DC 20530 Washington, DC 20530 Washington, DC 20531

Re: Proposed Implementation of Deaths In Custody Reporting Act (DICRA)

Dear Attorney General Lynch, Deputy Attorney General Yates, and Assistant Attorney General Mason:

The 67 undersigned national, state, and local criminal justice, civil rights, human rights, faith-based, immigrants' rights, LGBTQ, and open government organizations are writing to express concerns with the proposed implementation of the Deaths In Custody Reporting Act (DICRA). We are also writing to strongly reiterate our request that the Office of Justice Programs (OJP) condition federal criminal justice grants on data collection and reporting on police-civilian encounters.

DICRA was enacted almost two years ago, so guidance on the law's data collection and reporting process is welcomed. However, we have significant concerns with the proposed process published in the Federal Register.[1] Some of the undersigned organizations will submit specific comments by the October 3, 2016 deadline. In the meantime, please consider and address the issues raised below.

First, the proposal is a departure from DICRA provisions that require states receiving federal funding to report deaths in custody to the federal government. The Department of Justice is attempting to shift the data collection and reporting requirements from the states to the Bureau of Justice Statistics (BJS) by having BJS collect data on deaths in custody through its Arrest-Related Deaths (ARD) program instead of states. 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.[2] 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.

Second, with BJS assuming responsibility for states' data collection and reporting, the proposal indicates that BJS will rely primarily upon publicly available information ("open-source review") for its ARD program.[3] This means that should The Guardian and the Washington Post decide to continue to invest in this research,[4] those news outlets will continue to be the best national sources for data on deaths in police custody. Certain media outlets have been critical to understanding police-civilian encounters over the past year, but it is unlikely that national media attention and resources can remain on policing indefinitely. Thus, relying on media accounts and statistics is an inadequate method of collecting data to determine the circumstances under which people die while in law enforcement custody.

Moreover, the proposal does not indicate how federal law enforcement agencies will comply with DICRA. The law is clear in its application to federal law enforcement including immigration officials, so the guidance must detail how federal agencies, including Customs and Border Protection (CBP), will comply with DICRA. Also, the proposal does not provide a clear definition for the term "custody," particularly instances where a fatal police shooting has occurred without an arrest.

Additionally, the proposal does not discuss penalties for noncompliance. 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 financial penalty is critical to successful implementation of DICRA as voluntary reporting programs on police-community encounters have failed. Reportedly, only 224 of the more than 18,000 law enforcement agencies reported approximately 444 fatal police-shootings to the Federal Bureau of Investigation (FBI) in 2014[5], though we have reason to believe that annual numbers of people killed by police exceeds 1,000.[6]

Finally, we would like to reiterate our ask that the Office of Justice Programs require state and local law enforcement agencies that benefit from Department of Justice federal grants and programs to collect and report data on incidents of police use of force on civilians and other police-civilian encounters, such as pedestrian and traffic stops. The federal government awards close to $4 billion in such grants annually, and any discretionary grant should be conditioned upon providing data.[7]

Any statutory or formula grant, including the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG), should require data reporting as part of its existing performance metrics. To achieve complete and uniform data collection and reporting, the federal government must solicit disaggregated data that is reflective of all police-civilian encounters, including those encounters with people of color, women, youth, and people with disabilities. Data concerning sexual assault and misconduct by law enforcement agents should also be collected and reported.

Thank you for your attention to this matter. We also respectfully request a meeting with you to discuss this matter further.

Sincerely,

AFL-CIO

African American Ministers in Action (AAMIA)

American-Arab Anti-Discrimination Committee

American Civil Liberties Union

Amnesty International USA

Asian Pacific American Labor Alliance, AFL-CIO (APALA)

Bend the Arc: A Jewish Partnership for Justice

Bill of Rights Defense Committee/Defending Dissent Foundation

Californians Aware

Call to Do Justice

Catholics in Alliance for the Common Good

Church of Scientology National Affairs Office

Coalition for Humane Immigrant Rights of Los Angeles

Council on American-Islamic Relations

DC Reentry Task Force

Dignity and Power Now

Disciples Justice Action Network

Equity Matters, Inc.

Equality New Mexico

Fitting the Description

Florida Legal Services

Friends Committee on National Legislation

Georgia Latino Alliance for Human Rights

Government Accountability Project

Human Rights Defense Center

Human Rights Watch

Illinois Coalition for Immigrant and Refugee Rights

Immigrant Legal Advocacy Project

Immigrant Legal Resource Center

Jewish Council For Public Affairs (JCPA)

Justice Strategies

Kino Border Initiative

Lambda Legal

LatinoJustice PRLDEF

Lawyers' Committee for Civil Rights Under Law

The Leadership Conference on Civil and Human Rights

Metropolitan Community Churches

NAACP

NAACP Legal Defense and Educational Fund, Inc.

National African American Drug Policy Coalition

National Association of Criminal Defense Lawyers (NACDL)

National Association of Social Workers (NASW)

National Council of Jewish Women (NCJW)

National Disability Rights Network (NDRN)

National Immigrant Justice Center

National Immigration Law Center

National Immigration Project of the National Lawyers Guild

National LGBTQ Task Force

No More Deaths/No Mas Muertes

OCA - Asian Pacific American Advocates

OneAmerica

OpenTheGovernment.org

Pangea Legal Services

Prison Policy Initiative

Project South

Reformed Church of Highland Park

Refugee and Immigrant Center for Education and Legal Services (RAICES)

San Diego Immigrant Rights Consortium

Society of Professional Journalists

South Asian Americans Leading Together (SAALT)

Southern Border Communities Coalition

Southern Poverty Law Center

StoptheDrugWar.org

Sunlight Foundation

T'ruah: The Rabbinic Call for Human Rights

The United Methodist Church - General Board of Church and Society

Wilco Justice Alliance

cc: Roy Austin, Deputy Assistant, Domestic Policy Council

Vanita Gupta, Principal Deputy Assistant Attorney General, Civil Rights Division

Sarah Saldana, Director, U.S. Immigration and Customs Enforcement

R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection

Denise E. O'Donnell, Director, Bureau of Justice Assistance

William J. Sabol, Director, Bureau of Justice Statistics