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Review of the Department of Justice’s Implementation of the Death in Custody Reporting Act of 2013, Office of the Inspector General, 2018

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Office of the Inspector General
U.S. Department of Justice
OVERSIGHT

INTEGRITY

GUIDANCE 

Review of the Department of
Justice’s Implementation of the
Death in Custody Reporting Act of
2013

Evaluation and Inspections Division 19-01

December 2018

Introduction

The Department Has Not Yet Collected State ArrestRelated Death Data Despite DCRA’s Requirement to Do
So by Fiscal Year 2016

Congress enacted the Death in Custody Reporting Act of
2013 (DCRA) to address the lack of reliable information
about law enforcement-related deaths and deaths in
correctional institutions. DCRA requires state and federal
law enforcement agencies to report to the Attorney
General information regarding the death of any person
who is (1) detained by law enforcement, (2) under
arrest, (3) in the process of being arrested, (4) en route
to be incarcerated or detained, or (5) incarcerated at any
correctional facility. To encourage state reporting, DCRA
authorizes the Attorney General to withhold up to
10 percent of Edward Byrne Memorial Justice Assistance
Grant Program funds from states that do not comply with
DCRA reporting requirements.

We found that, despite the DCRA requirement to collect
and report state arrest-related death data by fiscal year
(FY) 2016, the Department does not expect to begin its
collection of this data until the beginning of FY 2020.
This is largely due to the Department having considered,
and abandoned, three different data collection proposals
since 2016.
If Implemented as Planned, DOJ’s State DCRA Collection Will
Be Duplicative of Other Department Efforts and May Not
Result in Complete Data Collection
We cannot assess the effectiveness of the Department’s
state DCRA data collection because it has not begun;
however, we found that the Department’s current state
DCRA data collection plan will duplicate two other
Department efforts. As a result, we are concerned that
this collection plan may not produce high-quality data;
duplicative reporting can fatigue respondents, who in
turn may submit data of limited quality. In particular, we
found that DCRA’s scope overlaps that of the
Department’s ongoing Mortality in Correctional
Institutions Program and the Federal Bureau of
Investigation’s planned Use of Force Program.

The Office of the Inspector General (OIG) conducted this
review to evaluate the U.S. Department of Justice’s
(Department, DOJ) progress in implementing DCRA. We
assessed the Department’s management of the federal
DCRA data collection, as well as its preparations for
collecting state-level DCRA data, from the law’s
enactment in December 2014 through July 2018.

Results in Brief
We found that the Department has made progress in
collecting DCRA data from federal law enforcement
agencies; however, not all of these agencies have
submitted DCRA reports. We also found that the
Department’s state DCRA data collection has been
delayed. Further, if implemented as planned, the state
DCRA data collection will duplicate other Department
efforts, which is an inefficient use of resources, creates
confusion, and may yield incomplete data. Without
complete information about deaths in custody, the
Department will be unable to achieve DCRA’s primary
purpose—to examine how DCRA data can be used to
help reduce the number of deaths in custody.

We are also concerned that the Department’s state DCRA
implementation plan may not produce reliable data
because the DOJ Bureau of Justice Assistance (BJA) plans
to implement a data collection methodology that will not
fully leverage open sources to validate traditional data
collection methods, a promising technique that BJS
previously piloted for a similar collection. Further, at the
time of our review BJA planned to collect data from
state-level agencies, rather than from local agencies that
may have more specific knowledge about deaths in
custody.

Many, but Not All, Federal Law Enforcement Agencies
Have Been Submitting DCRA Reports

The Department Does Not Currently Have Plans to Issue a
DCRA-Required Report to Congress

We found that the DOJ Bureau of Justice Statistics (BJS)
has facilitated the submission of DCRA reports from
104 federal agencies. A senior BJS official told us that
these agencies are likely responsible for the vast
majority of DCRA reportable deaths. However, BJS does
not have a full accounting of all federal law enforcement
agencies and therefore is unable to determine whether
all agencies required to submit DCRA reports are doing
so. We also found that all DOJ law enforcement
components are submitting required DCRA reports;
however, at the time of our review, the Federal Bureau
of Prisons had not been providing the time of death for
decedents, a data element required by DCRA.

Lastly, we found that the Department does not have
plans to submit a required report that details results of a
study on DCRA data. DCRA required that such a report
be submitted to Congress no later than 2 years after
December 18, 2014.

Recommendations
We make four recommendations to ensure that the
Department is able to efficiently and effectively manage
the DCRA data collection and gather complete data
about deaths in custody.

i

TABLE OF CONTENTS
INTRODUCTION ............................................................................................ 1
The Federal Government’s Ongoing Effort to Collect Death in Custody
Data .................................................................................................. 1
Purpose, Scope, and Methodology of OIG’s Review ................................... 5
RESULTS OF THE REVIEW .............................................................................. 7
Many, but Not All, Federal Law Enforcement Agencies Have Been
Submitting Death in Custody Reporting Act Reports .................................. 7
The Department Has Not Yet Collected State Arrest-Related Death Data
Despite DCRA’s Requirement to Do So by FY 2016 ................................. 10
If Implemented as Planned, DOJ’s State DCRA Data Collection Will Be
Duplicative of Other Department Efforts and May Not Result in Complete
Data Collection .................................................................................. 13
The Department Does Not Currently Have Plans to Issue a DCRARequired Report to Congress ............................................................... 19
CONCLUSION AND RECOMMENDATIONS ........................................................ 21
Conclusion ........................................................................................ 21
Recommendations ............................................................................. 21
APPENDIX 1:

PURPOSE, SCOPE, AND METHODOLOGY ................................... 23

Standards ......................................................................................... 23
Interviews ........................................................................................ 23
Data Analysis .................................................................................... 24
Policy and Document Review ............................................................... 24
APPENDIX 2:

DEATH IN CUSTODY REPORTING ACT OF 2013, Pub. L.
No. 113-242 ......................................................................... 25

APPENDIX 3:

THE ATTORNEY GENERAL’S OCTOBER 2016 MEMORANDUM
ON THE DEATH IN CUSTODY REPORTING ACT ........................... 28

APPENDIX 4:

THE FEDERAL BUREAU OF PRISONS’ RESPONSE TO THE DRAFT
REPORT ............................................................................... 38

APPENDIX 5:

OIG ANALYSIS OF THE FEDERAL BUREAU OF PRISONS’
RESPONSE ........................................................................... 40
ii

APPENDIX 6:

THE FEDERAL BUREAU OF INVESTIGATION’S RESPONSE TO
THE DRAFT REPORT ............................................................... 41

APPENDIX 7:

OIG ANALYSIS OF THE FEDERAL BUREAU OF INVESTIGATION’S
RESPONSE ........................................................................... 43

APPENDIX 8:

THE OFFICE OF JUSTICE PROGRAMS’ RESPONSE TO THE DRAFT
REPORT ............................................................................... 44

APPENDIX 9:

OIG ANALYSIS OF THE OFFICE OF JUSTICE PROGRAMS’
RESPONSE ........................................................................... 48

iii

INTRODUCTION
In December 2014, following several high-profile police shootings, including a
shooting in Ferguson, Missouri, Congress enacted the Death in Custody Reporting
Act of 2013 (DCRA). DCRA requires states and federal law enforcement agencies to
report to the U.S. Department of Justice (Department, DOJ) deaths that occur
during arrest and required these entities to report deaths of inmates, detainees, or
arrested individuals in the custody of law enforcement or correctional institutions.
The DOJ Office of the Inspector General (OIG) identified “Building Trust and
Improving Police-Community Relationships” as among the Department’s Top
Management Challenges for 2015, noting that a major impediment to Department
initiatives for improving police-community relations was the lack of complete and
accurate data. OIG has reiterated these concerns in its discussion of DOJ
management challenges through subsequent years and has highlighted the
significant role of DCRA in addressing the need for this data. Given the importance
of collecting reliable information about deaths in custody, OIG initiated this review
to assess the Department’s progress to date in implementing DCRA.
The Federal Government’s Ongoing Effort to Collect Death in Custody Data
DCRA, which restored and expanded on the provisions of an earlier law
passed in 2000, is part of the federal government’s ongoing effort to track deaths
occurring in a variety of interactions with law enforcement and in the custody of
corrections officials throughout the United States. The agencies that have initiated
and managed data collections that include some aspect of DCRA-reportable data
are the Bureau of Justice Statistics (BJS) within the DOJ Office of Justice Programs
(OJP), the Federal Bureau of Investigation (FBI), and the Department of Health and
Human Services’ Centers for Disease Control and Prevention (CDC). In the sections
that follow, we explain the main provisions of the current law as well as the related
data collections that these agencies manage.
The Death in Custody Reporting Act of 2013
DCRA requires states and federal law enforcement agencies to report to the
Attorney General information regarding the death of any person who is:
(1) detained by law enforcement; (2) under arrest; (3) in the process of being
arrested; (4) en route to being incarcerated or detained; or (5) incarcerated at any
correctional facility, including contract facilities (which we term “deaths in a
correctional institution”). Collectively, we refer to all five of these circumstances as
“deaths in custody.” We also refer to any of the first four circumstances of death as
“arrest-related deaths.”
The Death in Custody Reporting Act of 2000, which collected similar data
from states, expired in 2006. The current DCRA, enacted in 2014, builds on the
expired law and requires that states report quarterly, and federal agencies report
annually, the name, gender, race, ethnicity, and age of the deceased person, as
well as the date and time of the death, the location of the death, and the
circumstances surrounding the death. States must also report the law enforcement
1

agency that detained, arrested, or was in the process of arresting the deceased.
DCRA required that state and federal agencies begin reporting in fiscal year (FY)
2016.1
Two additional provisions of DCRA are relevant to our review. First, to
encourage states to report deaths in custody, DCRA also authorizes the Attorney
General to withhold up to 10 percent of Edward Byrne Memorial Justice Assistance
Grant (JAG) Program funds from states that do not comply with DCRA reporting
requirements. Second, DCRA required the Attorney General to conduct a study and
issue a report within 2 years of the law’s enactment examining how DCRA data can
be used to help reduce the number of deaths in custody and the relationship
between management actions and the number of deaths.
BJS Data Collections
BJS is one of the federal government’s 13 official statistical agencies, and its
mission is to collect, analyze, publish, and disseminate information about criminal
justice issues on behalf of the Department. In response to the Death in Custody
Reporting Act of 2000, which required states to submit information on deaths in
correctional institutions and deaths related to arrests, BJS established two data
collections: the Mortality in Correctional Institutions (MCI) Program and the ArrestRelated Death (ARD) Program.2 Through the MCI Program, which BJS continued
even after the Death in Custody Reporting Act of 2000 expired in 2006, BJS has
collected data on persons who died in the physical custody of the approximately
2,800 local adult jail jurisdictions nationwide since 2000, and the 50 state
departments of corrections since 2001.3 BJS uses this data to track national trends
in the number and causes of deaths occurring in correctional institutions, and it has
published annual reports on mortality in jails and state prisons.4
In 2003, through its ARD Program, BJS began collecting data on persons who
died either during the process of arrest or while in the custody of a state or local
law enforcement agency. Eligible deaths included those caused by law
enforcement’s use of force and those not directly related to the actions of law
While the statute did not require it, the Department required states and federal law
enforcement agencies to submit a DCRA report, even if they had zero deaths in a fiscal year, to assist
in ensuring the completeness of the data.
1

These two data collections were previously part of BJS’s now-defunct Death in Custody
Reporting Program.
2

In 2015 the Federal Bureau of Prisons (BOP) also began providing to BJS detailed data
about each inmate death. BOP policy requires institution staff to report to BOP headquarters an
inmate death and its apparent cause within 24 hours regardless of whether the death was a result of
suicide, homicide, or natural causes.
3

4 See, for example, DOJ BJS, Mortality in Local Jails, 2000–2014 Statistical Tables,
NCJ 250169 (December 2016), and DOJ BJS, Mortality in State Prisons, 2001–2014 Statistical Tables,
NCJ 250150 (December 2016). In these two reports, which are the most recent reports on deaths in
prisons and jails that BJS has issued, BJS found that in 2014 there were 444 deaths in federal prisons;
1,053 deaths in local jails; and 3,483 deaths in state prisons.

2

enforcement, such as deaths occurring at the time of arrest or while in custody that
were attributed to suicide, accident, or natural causes. BJS generally relied on
state criminal justice agencies to report data voluntarily on behalf of all law
enforcement agencies within a state. In 2014 BJS suspended the ARD Program due
to concerns about data quality for FYs 2012 and 2013. Contract statistical experts
later assessed the historical data quality of the ARD Program for the years in which
it had reliable data, 2003–2009 and 2011, and discovered that the program
captured only about 50 percent of the estimated law enforcement homicides during
this time frame.5
In 2015 BJS launched a two-phase pilot study that sought to test how a
review of open sources could help BJS identify the full scope of arrest-related
deaths identified in DCRA. During the first phase of the ARD Program Redesign
Study, BJS identified potential arrest-related deaths through a review of open
sources, including news outlets, official agency documents, and other publicly
available information. During the second phase, BJS surveyed state and local law
enforcement agencies, as well as Medical Examiner’s and Coroner’s offices, with
jurisdiction over the potential arrest-related deaths identified during the first phase.
Each survey respondent was asked to validate each potential arrest-related death
identified through the open-source review and identify any other deaths that met
the ARD Program’s scope.6 Based on information collected during these two
phases, BJS issued a report, which estimated that approximately 1,900 arrestrelated deaths occurred in the United States from June 2015 through May 2016. By
contrast, BJS’s prior counts of annual arrest-related deaths from 2003 through
2009, based solely on information voluntarily reported by police agencies, had
ranged from 627 to 745 each year. BJS officials and contract statistical experts told
us that by implementing the pilot methodology, which validates open-source data
using traditional data collection methods, the ARD Program could produce a more
complete accounting of arrest-related deaths than it had previously.7
FBI Data Collections
FBI has long collected data on homicides and is currently in the process of
partnering with state and local law enforcement organizations to implement a
national database on police use of force. Since the 1930s, FBI has collected major
BJS did not receive enough data for deaths occurring in FY 2010 and FY 2012–FY 2014 to
include these deaths in its analysis. According to BJS officials and BJS contract statistical experts, the
lack of sufficient data contributed to BJS’s decision to suspend the ARD Program. The ARD Program
data quality assessment also did not examine the coverage of other deaths the ARD Program was
designed to capture, including those due to suicides, accidents, drug overdoses, and natural causes.
Duren Banks et al., Arrest-Related Deaths Program Assessment Technical Report, NCJ 248543 (March
2015), 13.
5

6 The ARD Program Redesign Study also included a survey of law enforcement agencies and
Medical Examiner’s and Coroner’s offices that did not have potential arrest-related deaths identified
through an open source. This survey concluded in July 2016.
7 BJS, Arrest-Related Deaths Program Redesign Study 2015–16: Preliminary Findings,
NCJ 250112 (December 2016).

3

crime data from federal, state, and local law enforcement agencies as part of its
Uniform Crime Reporting Program (UCR). Agencies voluntarily submit data about
homicides to UCR, but they do not differentiate between homicides that are a result
of officer use of force and all other homicides.8 A representative of the Association
of State Criminal Investigative Agencies told us that following a series of highprofile officer use-of-force incidents, organizations representing state and local law
enforcement agencies recognized the need to provide greater transparency about
deaths and other injuries caused by officer use of force. According to this
representative, in 2015 he and representatives from other law enforcement
organizations formed a task force to improve nationwide officer use-of-force data
collection and from that effort FBI and the task force developed what would become
the Use of Force data collection.9 Use of Force seeks to collect information about
any use-of-force incident that results in the death or serious bodily injury of a
person, as well as any time a law enforcement officer discharges a firearm at or in
the direction of any person.10
According to the Use of Force data collection plan that FBI and the task force
created, agencies will provide specific information about the incident and nonpersonally identifiable information about the subject(s) and officer(s) involved.
Unlike DCRA, Use of Force does not include information about incidents in which law
enforcement involvement was a contributing factor but not the proximate cause of
a suicide, accident, or death by natural causes.11 An FBI official responsible for Use
of Force’s development told us that as of May 2018, 2,400 of what FBI estimates to
be the nation’s approximately 18,000 law enforcement agencies were prepared to
submit data when the Use of Force data collection officially begins, which the FBI
estimates will occur by the end of calendar year 2018.
CDC Data Collections
CDC manages two data collections, the National Vital Statistics System
(NVSS) and the National Violent Death Reporting System, both of which maintain
data similar to that which is collected under DCRA. NVSS gathers information
recorded on state and local birth and death certificates. Death certificates describe
8 The Department requires that all shooting incidents involving its employees be reported,
documented, and investigated. DOJ Policy Statement on Reporting and Review of Shooting Incidents
(Resolution 13), September 21, 1995.
9 The task force includes, but is not limited to, representatives from the Association of State
Criminal Investigative Agencies, Hualapai Nation Police Department, International Association of
Chiefs of Police, Major Cities Chiefs Association, Major County Sheriffs’ Association, National
Organization of Black Law Enforcement Executives, National Sheriffs’ Association, and Police Executive
Research Forum.
10 The Use of Force data collection bases its definition of serious bodily injury on 18 U.S.C.
§ 2246(4), which defines serious bodily injury as “bodily injury that involves a substantial risk of
death, unconsciousness, protracted and obvious disfigurement, or protracted loss or impairment of the
function of a bodily member, organ, or mental faculty.”

If, for example, an individual commits suicide during the course of a standoff with law
enforcement or dies of a heart attack immediately after arrest, the death would be reportable under
DCRA but not under Use of Force.
11

4

the decedent’s race, ethnicity, cause of death, nature of injuries, and Medical
Examiner’s or Coroner’s findings on homicides. CDC uses NVSS data to publish a
series of annual Fatal Injury Reports. The National Violent Death Reporting
System, in contrast to NVSS, collects specific information about homicides,
including information about the person who allegedly committed the homicide.
Additionally, while NVSS is a nationwide data collection, the National Violent Death
Reporting System covers only 40 states, the District of Columbia, and Puerto Rico.
Bureau of Justice Assistance and DCRA
The Bureau of Justice Assistance (BJA), within OJP, is a DOJ agency
responsible for distributing and managing criminal justice assistance grants,
including the JAG, made to state and local law enforcement agencies. DCRA gives
the Attorney General the authority to withhold up to 10 percent of JAG Program
funds from states that do not submit required data. In the fall of 2016, OJP
determined that the responsibility for collecting state DCRA data should be assigned
to BJA, which also administers the JAG Program.
Purpose, Scope, and Methodology of OIG’s Review
OIG assessed the Department’s progress in implementing DCRA, including its
management of related federal data collection efforts and preparations for collecting
state-level data. We also assessed whether the Department’s law enforcement
components—the Bureau of Alcohol, Tobacco, Firearms and Explosives; Drug
Enforcement Administration; FBI; Federal Bureau of Prisons; and U.S. Marshals
Service—internally collected and submitted data as required by DCRA.12
During the course of the review we interviewed Department, state, and nongovernmental managers and staff; reviewed relevant laws, guidelines, reports,
memoranda, and policies; and reviewed DCRA data submitted by the DOJ law
enforcement components. Additionally, following a June 2018 briefing of our
preliminary findings to Office of the Deputy Attorney General (ODAG), BJA, and BJS
officials, we requested that ODAG provide a written response to a series of
questions pertaining to the topics discussed during the briefing. OJP responded to
these questions on behalf of ODAG on August 2, 2018, and we incorporated the
responses into this report. OIG’s review covered the period from the law’s
enactment in December 2014 through July 2018. We include a detailed description
of our methodology in Appendix 1 and the text of the Death in Custody Reporting
Act of 2013 in Appendix 2.
As an additional methodological note, although we had access to and
reviewed BJS federal DCRA reports during our review, in this report we do not
provide information about the number of deaths federal agencies reported to BJS or
the circumstances surrounding those deaths. This is because BJS has not yet
12 For the purposes of this review, we consider BOP a law enforcement agency since it is
required to submit DCRA reports. DOJ OIG also has law enforcement authority but did not have any
DCRA reportable deaths in either FY 2016 or FY 2017. OIG submitted to BJS the required zero-deaths
reports for both fiscal years.

5

finalized the results of the FY 2016 and FY 2017 federal DCRA data collections and
because the primary purpose of this report is to assess the process by which the
Department is collecting or plans to collect DCRA data from state and federal law
enforcement agencies.

6

RESULTS OF THE REVIEW
Many, but Not All, Federal Law Enforcement Agencies Have Been
Submitting Death in Custody Reporting Act Reports
Although the Bureau of Justice Statistics (BJS) has facilitated the submission
of Death in Custody Reporting Act of 2013 (DCRA) reports from 104 federal law
enforcement agencies, we found that not all federal law enforcement agencies have
submitted these reports.13 In addition, we found that BJS and the Department do
not have a full accounting of the number of federal agencies that have law
enforcement authority, making it impossible for the Department or its OIG to fully
assess DCRA compliance for the whole of the federal government. While the BJS
Principal Deputy Director said that she believed that those federal agencies that
have been submitting reports are likely accountable for the majority of DCRAreportable deaths, until BJS collects complete reports from all federal agencies, the
Department will be unable to determine the total number of individuals who died in
federal custody and which agency had custodial responsibility at the time of death.
We also found that, while all of the Department’s law enforcement components
submitted FY 2016 and FY 2017 DCRA reports, the Federal Bureau of Prisons (BOP)
has not included time of death, a statutorily required data element that can help
BJS assess the factors that contributed to deaths in correctional institutions.14
BJS Believes that the Majority of Federal Law Enforcement Agencies Have
Submitted DCRA Reports, but BJS Has Not Identified the Entire Universe of Federal
Law Enforcement Agencies
DCRA requires reporting for the purpose of better understanding deaths in
custody so that they may occur less often. We found that while BJS believes that the
majority of federal agencies required to submit DCRA reports are doing so, and that
these agencies account for most deaths in custody, not all federal law enforcement
agencies have been submitting DCRA reports. Further, BJS has not identified the
entire universe of agencies that are required to submit DCRA reports. Unless the
Department and BJS take additional steps to (1) identify the universe of agencies
that have law enforcement authority, which are therefore required to report DCRA
data, and (2) collect DCRA reports from these agencies, the Department will be
unable to provide complete and accurate data about deaths in custody.
Based on our review of BJS records, we found that 104 unique agencies
submitted DCRA reports for at least 1 year of the data collection. The agencies that
have reported include all of the DOJ law enforcement components and major U.S.
Department of Homeland Security law enforcement agencies such as Customs and
Border Protection and Immigration and Customs Enforcement. A senior BJS official
This number represents the total number of agencies that have submitted DCRA reports,
not the total number of agencies that have had DCRA-reportable deaths.
13

By DOJ law enforcement components, we mean specifically the Bureau of Alcohol, Tobacco,
Firearms and Explosives; BOP; the Drug Enforcement Administration; the Federal Bureau of
Investigation (FBI); and the U.S. Marshals Service (USMS).
14

7

told us that she believes that the 104 agencies that have submitted DCRA reports are
likely the agencies that are accountable for the vast majority of deaths in custody.
However, not all agencies that BJS believes to have law enforcement authority
have submitted the required reports. To date, a BJS official responsible for the
federal data collection said that he can affirmatively identify 107 federal agencies
with law enforcement authority and that he believes that another 10 agencies that
have not yet responded to BJS inquiries may also have law enforcement authority.
Additionally, and perhaps more concerning, we found that BJS and the Department
do not know whether there are additional federal agencies with law enforcement
authority.15 Given that BJS has collected DCRA reports from 104 agencies, this could
mean that at least 3 to 13 agencies have not yet submitted DCRA reports. According
to the BJS Principal Deputy Director, it is difficult for BJS to determine whether a
small federal agency has law enforcement authority because such authority can be
granted or rescinded in any piece of legislation at any time.
Since DCRA was enacted, the Department and BJS have taken several steps
to inform federal agencies of their reporting responsibilities and to identify the
universe of agencies required to report. On October 5, 2016, former Attorney
General Loretta Lynch sent a memorandum (Attorney General Memorandum) to the
heads of federal agencies outlining DCRA reporting procedures and explaining that
agencies were to retroactively report each death in custody since FY 2016 to BJS
through a web portal, and then continue to submit reports for deaths occurring in
future fiscal years.16 The Attorney General Memorandum also included a list of
agencies that the Department believed to have law enforcement authority,
requested that each agency provide a point of contact for reporting DCRA data, and
requested assistance from recipients to inform BJS of any federal law enforcement
agencies with law enforcement authority that did not appear on the list.17
BJS officials responsible for the data collection told us that since the Attorney
General Memorandum was issued they have also sought to increase awareness of
According to a BJS official, when a new data collection begins, it can take a few years for all
respondents to provide data. As a result, BJS is still collecting FY 2016 and FY 2017 DCRA reports
from agencies that have yet to provide data for either one or both years and is continuing to reach out
to additional agencies to identify the full universe of federal law enforcement agencies.
15

16 In addition to the heads of executive departments and agencies, the former Attorney
General also addressed the memorandum to judicial and legislative branch entities with law
enforcement authority. Agencies that do not have any deaths to report still must submit a summary
form certifying that there were zero deaths during the fiscal year. Agencies have the option either to
submit records of deaths as deaths occur throughout the fiscal year or submit all records at the end of
the fiscal year. Loretta Lynch, Attorney General, U.S. Department of Justice, memorandum for Heads
[of] Executive Departments and Agencies; the Marshals of the United States Supreme Court; Chief of
Police, U.S. Capitol Police; the Public Printer of the United States; Chair, Executive Committee, Judicial
Conference of the United States, Death in Custody Reporting Act, October 5, 2016. See Appendix 3
for the full memorandum.
17 The Attorney General Memorandum included a list of 124 federal agencies that the
Department believed to have law enforcement authority. Although BJS officials told us that they could
not definitively state the number of federal law enforcement agencies, they were able to determine
that 23 of the 124 on the list did not have law enforcement authority.

8

DCRA’s reporting requirements and identify the universe of agencies required to
report by emailing and calling federal agencies believed to have law enforcement
authority. However, despite the Attorney General Memorandum and these
additional efforts, BJS officials told us that some agencies BJS identified as having
law enforcement authority have not submitted DCRA reports as required. For
example, one BJS official told us that he had reached out multiple times to an
Intelligence Community agency with its own police force but that the agency has
never responded. This official told us that because BJS has no formal authority
over such agencies, he believed that these outreach efforts were the most he could
do to generate more complete reporting. This official also said that in addition to
those non-reporting law enforcement agencies of which BJS is aware, there may be
additional federal agencies with law enforcement authority of which BJS is not
aware.
Given that during the period of our review BJS did not yet have a full listing
of federal agencies with law enforcement authority, we cannot determine the extent
to which the DCRA data collection from federal agencies was complete. In an
August 2, 2018, response to questions asked during OIG’s June 2018 briefing, the
Office of the Deputy Attorney General (ODAG) and the Office of Justice Programs
(OJP) reported to us that ODAG will assist BJS in identifying any remaining federal
law enforcement agencies and contact those agencies that have not responded to
BJS’s requests for data. We believe that this is a necessary step to ensure that
BJS’s data collection of all federal deaths in custody is complete and accurate.
DOJ Law Enforcement Components Have Been Generally Compliant with DCRA, but
BOP Has Not Been Providing a Statutorily Required Data Element
We reviewed BJS and DOJ law enforcement component records and
determined that all DOJ law enforcement components submitted FY 2016 and
FY 2017 DCRA reports. However, we found that BOP did not provide time of death,
a required data element, in its DCRA reports.18 According to the BJS Principal
Deputy Director, it is important that agencies complete every required field because
complete data allows BJS to analyze a greater number of variables that may
provide insight into the causes of deaths in custody.19 She stated that, for
example, time of death data could allow BJS to test the hypothesis that there are
more deaths at night, when a correctional institution may have fewer correctional
or medical staff on duty.
In a written response to OIG, BOP headquarters officials stated that BOP has
not consistently collected time of death data because, unless an inmate died under
a doctor’s observation, BOP could report only the time a BOP official discovered an
inmate death, not the exact time of the inmate’s death. Because BOP believed that
18 The data elements on the reports differ slightly if the death is reported by an arresting
agency, such as FBI, or a detention/corrections agency such as USMS or BOP. Refer to the
Introduction of this report for the full list of required DCRA data fields.

The BJS Principal Deputy Director added that not all variables reveal a correlation to the
number of deaths in custody; however, BJS collected data fields beyond those required by DCRA
because these fields may provide additional explanatory value about deaths in custody.
19

9

time of discovery of death would be an ambiguous data element, BOP did not
record it in any of its databases. Following OIG’s issuance of a working draft of this
report to BOP in October 2018, BOP came to an agreement with BJS to submit data
on inmate time of death moving forward.
The Department Has Not Yet Collected State Arrest-Related Death Data
Despite DCRA’s Requirement to Do So by FY 2016
We found that despite DCRA’s requirement to begin collecting state arrestrelated death data by FY 2016, the Department has not done so, and it does not
anticipate implementing its proposed data collection until the beginning of FY 2020
at the earliest. Through interviews and review of documents, we compiled a
timeline of the Department’s efforts, to date, to implement the state DCRA
collection, which we found entailed a series of strategies and approaches
collectively spanning several years. In this section, we describe these efforts and
how they have evolved into the Department’s current state DCRA collection plan.
From the time that DCRA was passed in December 2014 until the fall of
2016, BJS worked on several initiatives to implement the state DCRA collection.
First, BJS began to design a new methodology to improve reporting of arrestrelated deaths after an assessment of its historical Arrest-Related Death (ARD)
Program indicated that BJS had been collecting only about 50 percent of all law
enforcement homicides for its 2003–2009 and 2011 collections. After completing
the assessment, BJS spent 11 months (June 2015 through May 2016) conducting
its ARD Program Redesign Study, which piloted an alternative arrest-related death
data collection methodology.
In January 2016, while finishing the ARD Program Redesign Study, BJS
participated in an effort, initiated by a task force composed of state and local law
enforcement organizations, to develop and implement a program to collect data
about police use of force incidents in the United States. The task force members
asked the Federal Bureau of Investigation (FBI) to assist in the development of and
to subsequently manage what would become the Use of Force Program. BJS
officials told us that given the similarities and overlap in the information and types
of incidents that would be reported in the Use of Force and DCRA data collections,
BJS proposed that FBI manage a combined data collection. However, after
6 months of discussions and consideration, in August 2016 state and local law
enforcement representatives rejected BJS’s proposal. An FBI official and a task
force representative both told us that task force members rejected the proposal, in
part because they were unfamiliar with DCRA and BJS had not clearly
communicated DCRA’s requirements. The task force representative also told us
that, because state and local law enforcement believed that the Department may
use DCRA data to punish law enforcement agencies, the task force decided that it
should limit data collection to only those specific elements needed for researchers
to better understand events and behaviors that led to officer use of force. As a
result of this decision, the task force and FBI continued to develop a Use of Force
implementation plan while separately BJS continued to develop a state DCRA
implementation plan.

10

In August 2016, BJS announced a new proposal to collect state DCRA data
using what the BJS Principal Deputy Director described as a “promising”
methodology piloted during BJS’s ARD Program Redesign Study.20 This
methodology would use both open-source and local agency-reported data in an
effort to increase the capture of reportable deaths. According to BJS contract
statistical experts, this approach, when used during the pilot study, increased BJS
coverage of the nation’s deaths in custody.21
BJS officials did not implement this methodology to collect DCRA data,
however, because a few months after BJS announced this proposal OJP determined
that BJS would not be assigned to serve as the state DCRA data collection agent.
The OJP Counsel told us that OJP made this determination because U.S. Office of
Management and Budget guidance requires statistical agencies to operate
separately from policy-making activities. According to OJP Counsel, OJP considers
the administration of DCRA to be a policy-making activity because DCRA gives the
Attorney General the authority to withhold up to 10 percent of Edward Byrne
Memorial Justice Assistance Grant (JAG) Program funds from states that do not
submit required data. The BJS Principal Deputy Director corroborated the OJP
Counsel’s assessment that BJS is not the appropriate agency to implement and
manage DCRA. She further stated that it would be inadvisable for BJS to collect
state DCRA data on behalf of another entity that would perform the compliance
assessment because even such limited involvement could undermine BJS’s position
as an objective statistical collection agency and could cause survey respondents to
withhold future data. Further, OJP stated in its written response to questions asked
during OIG’s June 2018 briefing that assigning to BJS the responsibility of
implementing DCRA would trigger data use restrictions and potentially limit the
Department’s ability to use DCRA information for law enforcement purposes.
In the fall of 2016, with BJS unable to serve as the state DCRA data
collection agent, OJP transferred responsibility for collecting information about state
arrest-related deaths and deaths in correctional institutions to another agency
within OJP, the Bureau of Justice Assistance (BJA). OJP officials explained that
because BJA manages the JAG Program, and because DCRA is tied to the
administration of that program, it was logical for BJA to serve as the state DCRA
data collection agent.

20 Arrest-Related Deaths Program, Notice for Collection Comments Requested, 81 Fed.
Reg. 150, 51489 (Aug. 4, 2016). When federal agencies intend to collect data from state or local
governments, they must publish a notice in the Federal Register. Within 60 days of the notice’s
publication, interested parties may submit comments to the agency either in support of or in
opposition to all or part of the notice. Based on these comments, the federal agency will submit a
final collection plan to the Office of Management and Budget’s Office of Information and Regulatory
Affairs, which determines whether the collection complies with the Paperwork Reduction Act of 1995
and is therefore not overly burdensome on respondents. Only after that office’s approval can the
agency begin to implement the collection. To date, the Department has not submitted any state DCRA
data collection plans to the Office of Information and Regulatory Affairs for review.
21

The ARD Program Redesign Study’s methodology is described in the Introduction of this

report.

11

In December 2016, BJA announced its first proposal to collect state DCRA
This initial proposal was similar to BJS’s previous proposal, with the main
data.
difference being that the BJA proposal would require state-level agencies to report
data instead of local law enforcement agencies. During an interview with senior
OJP officials, the BJA Deputy Director said that incoming OJP leadership considered
this proposal but did not approve it because they were concerned that the proposal
might overly burden states and they believed that it would require states to submit
information beyond what DCRA explicitly requires. For example, this proposal
asked state officials to develop, for every year of the collection, a data collection
plan that would require BJA approval, which DCRA does not require. The BJA
Deputy Director also told us that incoming OJP leadership were delayed in
approving any new state DCRA collection proposal as it took them some time to
understand the requirements of DCRA and the related resources necessary to fulfill
those requirements.
22

BJA posted a 60-day notice in the Federal Register on June 11, 2018, with a
revised collection plan.23 A significant difference between this proposal and prior
proposals is that its described methodology would not require BJA to routinely
validate open-source data with state-reported data. As a result, during our review
period BJA’s plans relied primarily on state agencies to report DCRA data. Further,
the June 11, 2018, plan substantially decreased the amount of information that
state agencies must submit, which, according to OJP, would also minimize the
DCRA data collection’s burden on state agencies. If, following a public comment
period, the proposal receives final approval from the Department and the Office of
Management and Budget, BJA anticipated that the DCRA data collection would
begin on October 1, 2019, and it expected to receive quarterly reports beginning in
January 2020. The figure below shows how these ongoing deliberations have
delayed DCRA’s implementation.

Agency Information Collection Activities; Proposed Collection Comments Request; New
Collection: Death in Custody Reporting Act Collection, 81 Fed. Reg. 243, 91949 (Dec. 19, 2016).
22

Death in Custody Reporting Act Collection, Notice for Proposed eCollection and eComments,
83 Fed. Reg. 102, 27023 (Jun. 11, 2018).
23

12

Figure
Timeline of State DCRA Data Collection Events and Decisions

Sources: BJS, BJA, and FBI

In the following sections, we expand on the Department’s decision-making
process and further describe our concerns that the Department’s current proposal
may result in a duplicative and incomplete DCRA data collection.
If Implemented as Planned, DOJ’s State DCRA Data Collection Will Be
Duplicative of Other Department Efforts and May Not Result in Complete
Data Collection
We found that the Department’s state DCRA data collection plan that BJA
proposed in June 2018 may not produce the quality of data about deaths in custody
necessary to achieve the intent of the law for two reasons. First, the plan would
duplicate other data collections because it would require respondents to submit
similar information about deaths in custody to multiple DOJ entities. This is
concerning because BJS, BJA, and FBI officials told us that duplication in data
collection efforts can confuse and fatigue data respondents, who in turn may submit
low-quality data. Second, in the past when the Department used a methodology
that, similar to its current proposal, did not fully leverage open sources to establish
an initial population of law enforcement homicides, the Department captured only
about 50 percent of these incidents.24 Consequently, we are concerned that the
Department will not be able to achieve DCRA’s primary purpose—to collect

Duren Banks et al., Arrest-Related Deaths Program Assessment Technical Report,
NCJ 248543 (March 2015), 13.
24

13

complete and accurate death in custody data to examine how DCRA data can be
used to help reduce the number of deaths in custody.
The Planned DCRA Data Collection Is Duplicative of Two Other Data Collections
We found that the planned scope of the DCRA collection overlaps with the
scope of BJS’s Mortality in Correctional Institutions (MCI) collection and FBI’s Use of
Force collection. This is concerning because when multiple agencies manage similar
collections, it results in an inefficient use of resources. Further, duplicative
reporting requirements can confuse respondents and increase the risk of
respondent fatigue, which can diminish data quality.
If DCRA is implemented in October 2019 as planned, BJA will begin collecting
data about deaths in state and local correctional institutions even though BJS will
continue collecting a limited amount of data about these deaths through its ongoing
MCI collection. BJS officials told us that BJS will continue the MCI collection
because it complements BJS’s overall correctional research, which includes a
broader analysis of the nationwide prison population. This broader analysis
includes supplementing the MCI collection with Centers for Disease Control and
Prevention data compiled from death certificates. In its August 2, 2018, written
response to questions asked during OIG’s June 2018 briefing, OJP stated that it
believed that BJS’s MCI collection should continue as planned. In addition to
supporting BJS’s general statistical research, the inclusion of the additional data
from death certificates would provide richer details on deaths in custody than past
MCI collections have done or the planned DCRA collection would do.
We identified a second area of duplication related to the Department’s
collection of data about state arrest-related deaths. To comply with DCRA, BJA will
begin to collect specific information about state arrest-related deaths at the same
time as FBI’s planned Use of Force data collection will also collect information about
many of the same deaths. FBI’s planned Use of Force collection is broader in some
respects than DCRA because it also collects data about officer non-lethal use of
force. In other respects, FBI’s plan is more restricted since it does not collect data
about arrest-related deaths resulting from suicide, accidental death, or natural
causes. However, the two planned collections overlap with respect to arrest-related
deaths caused by officer use of force and the data to be collected by Use of Force in
this category will also satisfy most DCRA requirements. For example, DCRA and
Use of Force will both collect data to determine the gender, race, ethnicity, and age
of the deceased person, as well as the date and time of death, location of death,
and circumstances surrounding the death. The main difference is that the Use of
Force collection does not request the decedent’s name, whereas this will be a
required data element under DCRA.25 See the table for a comparison of the types
of death that each of the three collections described in this section will capture.
25 In its August 2, 2018, written response to questions asked during OIG’s June 2018 briefing,
OJP stated that the Department does not view the DCRA and Use of Force collections as duplicative
because the two collections have different underlying purposes. For example, the DCRA collection
would be structured to accommodate mandatory reporting, while the Use of Force collection would

14

Table
Types of Death Captured by FBI, BJA, and BJS Data Collections
Collection

Primary
Reporting
Agencies

Use of Force

Federal, state,
and local law
enforcement

State DCRA

State JAG
Program
administering
agencies

Death
During
Arresta

Non-Fatal
Officer Use
of Force

Death Result of
Suicide,
Accident, or
Natural Causes

Death in
Detention/
Correctional
Facility

FBI Collection



BJA Collection







BJS Collection
State and local


MCI
correctional
facilities
a We consider deaths during arrest to include those that occurred when an individual was detained by
law enforcement, in the process of being arrested, under arrest, or in the custody of the arresting
agency while en route to be incarcerated or detained.
Source: OIG analysis

We found that competing perspectives of federal and non-federal
stakeholders involved in the development of the Use of Force and DCRA collections
prevented the Department from consolidating the collections. Beginning in early
2016, at the behest of a task force composed of representatives of state and local
law enforcement organizations, FBI’s Criminal Justice Information Services Division
hosted a series of meetings to determine how best to develop and implement a
data collection of use-of-force incidents in the United States. Initially, BJS
proposed that FBI manage a collection that would satisfy DCRA’s requirements
while also collecting additional Use of Force data elements. The FBI official
responsible for implementing the Use of Force collection told us that FBI was open
to this approach; however, she further explained that because the state and local
law enforcement task force representatives initiated this effort, with FBI’s role being
to facilitate development of the collection, FBI deferred major decisions, such as
whether the collections should be consolidated and managed by FBI, to the task
force members.26
facilitate voluntary reporting. OJP conceded that there might be some overlap between the two
collections, but OJP anticipated that fewer events would be reportable under both collections than
would be reportable under only one collection. As we discuss later in the report, we believe the
sooner BJA begins its state DCRA collection the sooner it will be able to assess data quality and work
with FBI to minimize duplicative data collection.
The Criminal Justice Information Services Division’s Advisory Policy Board is responsible for
reviewing appropriate policy, technical, and operational issues related to Criminal Justice Information
Services Division programs. Subsequent to its review, the Advisory Policy Board makes
recommendations to the FBI Director. According to the minutes of the task force meetings, the
recommendations from the task force were not to be submitted to the Advisory Policy Board for a
vote; they would instead be sent directly to the Director for consideration.
26

15

A Criminal Justice Information Services Division official and a state law
enforcement task force representative told us that, ultimately, the state and local
law enforcement task force members decided that the collections should be
managed separately, at least at first. They believed that many in the law
enforcement community were unfamiliar with DCRA and would be confused by a
new collection with slightly different data submission requirements. Additionally,
OJP noted in its written response to questions asked during OIG’s June 2018
briefing that, during task force meetings, law enforcement community
representatives had expressed concerns about conflating all deaths in custody with
deaths connected to police use of force. Both officials we interviewed also said that
they believed that law enforcement agencies would be less willing to participate in a
combined collection if the collection required agencies to submit data about deaths
that were not directly caused by law enforcement’s use of force, such as deaths
from suicide, accident, or natural causes that occurred during the course of arrest
or while an individual was incarcerated.
While we recognize the importance of buy-in from state and local law
enforcement agencies to ensure a successful Use of Force collection, we are
concerned that keeping these collections separate will be an inefficient use of
resources, could create confusion by requiring responses with similar information to
multiple Department entities, and could compromise the quality of the state DCRA
collection. The FBI, BJS, and BJA officials all explained that if respondents had to
submit data about the same death multiple times, or were asked to submit
information too frequently, they may experience respondent fatigue, which can
undermine the completeness and quality of submissions.27
The Department’s State DCRA Implementation Plan May Not Produce Complete
Death in Custody Data
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
Respondent fatigue occurs when survey participants become tired of the survey task and the
quality of the data they provide begins to deteriorate. It occurs when survey participants’ attention and
motivation decrease in later sections of a questionnaire. Tired or bored respondents may more often
answer “don’t know”; engage in “straight-line” responding (i.e., choosing answers from the same column
on a page); give more perfunctory answers; or give up answering the questionnaire altogether. Paul
Lavrakas, “Respondent Fatigue,” in Encyclopedia of Survey Research Methods (Thousand Oaks, Calif.:
Sage Publications, 2008), http://methods.sagepub.com/reference/encyclopedia-of-survey-researchmethods/n480.xml (accessed December 4, 2018).
27

OJP acknowledged to OIG that respondent fatigue was a cause for concern but stated that, in
its view, such concerns did not outweigh the potential risks of consolidating the collections. These
risks included further delays and lost trust among Use of Force Program partners. OJP also stated
that, once both programs had collected initial datasets, the Department would be better situated to
evaluate whether consolidation would be warranted and feasible.

16

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 statelevel agencies instead of from local agencies that may have more specific
knowledge about deaths in custody.
The Attorney General’s December 16, 2016, report to Congress on DCRA
identified as a challenge for state-level reporting that DCRA requires states to
report information they did not necessarily possess.28 This concern was reiterated
by BJS, BJA, and state statistical analysis center officials who told us that, when
BJS managed the ARD Program, relying on state reporting did not result in
complete data because (1) state-level agencies are generally less aware of and less
knowledgeable about deaths that occurred in their states than are the local
jurisdictions where the deaths occurred and (2) many state governments cannot
compel subordinate levels of government to report crime data without state laws
that require it.29 For example, one state law enforcement official explained to us
that he expected his state’s involvement in DCRA to be minimal because there was
no law in his state that required any type of reporting from the state’s hundreds of
separate law enforcement agencies to a central state agency.
During our review, we learned that when BJS conducted the ARD Program
Redesign study it made several methodological changes to mitigate the effects of
incomplete state reporting. First, BJS developed and used a web-based opensource search application to generate a universe of potential deaths in custody.
Second, after generating the universe, BJS directly surveyed local law enforcement
agencies to confirm the deaths and report any additional deaths.30 BJS also
contacted a sample of agencies for which BJS’s open-source review had not
identified any deaths to verify that those agencies were not involved in any arrestrelated deaths. During interviews, the BJS Principal Deputy Director described this
data collection methodology as “promising.” BJS contract statistical experts told us
that using this new methodology BJS was able to collect more data about deaths in
custody than it had previously collected. Specifically, while BJS’s historical data
collection identified 627 to 745 arrest-related deaths throughout the United States
each year between 2003 and 2011, BJS’s pilot methodology allowed BJS to project
that there were approximately 1,900 arrest-related deaths in 2015.
The BJA Deputy Director told us that despite the potential benefits of using a
web-based open-source search application to generate leads about potential deaths
28 DOJ, Report of the Attorney General to Congress Pursuant to the Death in Custody
Reporting Act (December 2016), 8.
29 Some states, including California, Texas, Maryland, and Tennessee, have passed legislation
that required local law enforcement agencies to centrally report data similar to that required by DCRA.
For example, California law requires all facts concerning the death of a person in custody of any law
enforcement agency or correctional facility be reported to the California Attorney General within
10 days of the death. California Government Code, Section 12525 (January 1, 1993).
30 During its ARD Program Redesign Study, BJS also surveyed local Medical Examiners and
Coroners in an attempt to capture more data.

17

in custody and validating them with local agency reporting, as BJS did, BJA does
not plan to include either of these steps in its methodology. She said that BJA lacks
the financial resources to develop and manage such an open-source search
application and that BJA’s open-source review will likely be limited to staff
conducting random manual reviews of open-source information to verify
information about deaths in custody.31 The BJA Deputy Director said that she had
not yet determined how frequently these spot check reviews would occur.32
Additionally, the Deputy Director told us that BJA will collect death in custody data
from states instead of local agencies because DCRA specifically requires states to
submit data. Further, she explained that BJA did not plan to contact local agencies
directly because DCRA does not require it.
We also determined that, based on OJP’s interpretation of another DCRA
provision, BJA’s collection plan may have an unintended, negative consequence if
the plan includes use of an enforcement mechanism included in DCRA. We describe
this provision and its possible implications in the text box below.

31 BJS spent more than $4 million managing death in custody data collections between
FYs 2014 and 2017. As a part of this broader effort, BJS contract statisticians developed the opensource search application and reconciled the application’s search results with local jurisdictions. This
application, which was designed to meet the specific requirements of BJS’s pilot study, is the
intellectual property of the contractor. For BJA to employ this type of tool, it would have to separately
acquire a tool that would be developed to address the specific requirements of the DCRA data
collection. Further, BJA would also have to pay the ongoing costs associated with statisticians
reconciling the results with state DCRA reports.

One advantage that BJS staff had in managing the collection of arrest-related death data is
that they are statisticians with expertise in crime data collection. In OJP’s August 2, 2018, written
response to questions asked during OIG’s June 2018 briefing, OJP stated that there is “no reason to
believe that BJA lacks the expertise to collect the data under DCRA.” However, in a previous
interview, the BJA Deputy Director acknowledged that BJA staff are “not experts” in crime data
collection and told us that she did not know whether her staff would be able to determine whether
states are submitting complete and accurate information.
32

18

DCRA Provision That May Have an Unintended Negative Consequence
Prior to DCRA’s passage, senior Department officials said that DCRA’s enforcement
mechanism—withholding 10 percent of state JAG Program funds—would have limited effectiveness
in increasing reporting and could unfairly punish certain police agencies that do submit DCRA data.
This is because DCRA’s enforcement mechanism allows only the withholding of funds from an
entire state, rather than targeting the individual state and local agencies that fail to submit DCRA
data. In some states, only a fraction of state and local police agencies receive JAG Program funds.
For example, an official from the Missouri JAG Program state administering agency told us that
only about 155 of the state’s more than 600 law enforcement agencies receive JAG Program funds.
An official with the Alaska JAG Program state administering agency told us that only 12 of the
41 law enforcement agencies in the state receive these funds. State and local agencies that do not
receive JAG Program funds would not be affected if the state saw a reduction in funding, while
agencies that do receive JAG Program funds could have their funding reduced even if they
submitted DCRA reports as required.
However, it is unclear whether the Department will implement the penalty provision because
DCRA gives the Attorney General discretion about whether to apply it. Rather than definitively
stating that it would or would not apply the provision, the Department’s August 2, 2018, written
response to questions asked during OIG’s June 2018 briefing stated that it would “explore ways to
apply the provision to promote data reporting.”
Sources: OIG analysis of discussions with state grant administering agencies and OJP’s August 2,
2018, written response to questions asked during OIG’s June 2018 briefing

Although we are concerned that BJA’s current data collection plan may not
produce complete death in custody data, we believe that BJA should begin
collecting state DCRA data as soon as possible for two reasons. First, the collection
is already significantly delayed and even if it results in limited data in the first few
years of the collection, such data can help the Department better understand the
scope and causes of deaths in custody. Second, BJS and BJA officials told us that it
can take multiple years to educate respondents about their reporting
responsibilities and make necessary adjustments to any data collection. Further, in
its August 2, 2018, response to questions asked during OIG’s June 2018 briefing,
OJP stated that once data collection is underway the Department will be better
positioned to determine whether the concerns identified by OIG and the Attorney
General’s December 2016 report to Congress will negatively affect states’ reporting.
We believe that the sooner BJA begins the state data collection, the sooner it will be
able to assess data quality, refine its collection methodology, and work with FBI and
BJS to implement collective best practices to minimize duplicative data collection.
Until these agencies begin collecting data, the Department will be unable to
examine how DCRA data can be used to help reduce the number of deaths in
custody.
The Department Does Not Currently Have Plans to Issue a DCRA-Required
Report to Congress
We found that during the time of our review the Department did not plan to
submit a required report to Congress to detail the results of a study on DCRA data
submitted from state and federal law enforcement agencies. DCRA requires the
Attorney General to conduct a study to (1) examine how DCRA data can be used to
help reduce the number of deaths in custody and (2) examine the relationship, if
19

any, between the number of deaths and the management of correctional facilities.
Additionally, DCRA required the Attorney General to issue a report detailing the
findings of this study no later than 2 years after December 18, 2014.
With little progress in the data collection effort in the 2 years following
DCRA’s passage, on December 16, 2016, then-Attorney General Lynch submitted to
Congress a report that detailed the Department’s plan to implement DCRA. In the
report, the Department stated that because it had not yet begun the federal or
state DCRA collections it would conduct the required study once the data was
available.33 The Department further stated in the report that it would “work with
Congress to ensure that the study can be completed” and that it intended to
“conduct this study periodically and to submit subsequent reports to Congress.”34
OJP’s August 2, 2018, written response to questions asked during OIG’s June
2018 briefing referenced the December 2016 report from Lynch as fulfilling DCRA’s
requirement to complete a study and report on it to Congress. OJP stated that
there was “no plan to produce another report” and that OJP also had no plans to
report state data collected under DCRA. Instead, OJP stated that “Once data
collection has begun the Department will assess what kinds of reporting would be
appropriate based on the available data.” However, we do not believe that the
December 2016 report fulfilled DCRA’s requirement to complete and report on a
study of DCRA data because it did not contain DCRA data. Further, we believe that
not releasing DCRA data and analysis limits the utility of the data collection effort
and the Department’s ability to use the data to increase public transparency about
deaths in custody and take steps to reduce their number.

33

DOJ, Report of the Attorney General, 10.

34

DOJ, Report of the Attorney General, 11.

20

CONCLUSION AND RECOMMENDATIONS
Conclusion
Congress intended for the Death in Custody Reporting Act of 2013 (DCRA) to
help the Department better analyze death in custody data to determine how the
Department can use the data to reduce the number of individuals who die in law
enforcement custody or in correctional institutions. We found that while the
Department has facilitated reporting from a significant number of federal agencies,
additional steps are needed to accomplish complete reporting of deaths in federal
custody. We also found that the Department’s state DCRA collection has not yet
begun and that it will be delayed until at least FY 2020. Additionally, we are
concerned that, if the Department implements the state DCRA collection as
currently planned, it will be duplicative of other similar data collections and may not
result in a complete record of all reportable death in custody incidents. Lastly, we
found that the Department has no plans to complete a required study of DCRA data
and report to Congress on the study’s results.
For DCRA to achieve its primary purpose—to assist the Department and state
and local law enforcement to better understand the causes of deaths in custody and
take actions to reduce their number—we believe that the Department should
consider the issues we identified in our report as it continues to collect federal
DCRA data and finalizes its state DCRA data collection plan.
Recommendations
To improve the Department’s implementation of the federal DCRA data
collection, we recommend that the Office of Justice Programs (OJP) and the Office
of the Deputy Attorney General pursue their plan to:
1.

Maintain and regularly update a list of federal agencies with law enforcement
authority and reach out to those agencies that have not provided reports
pursuant to the Death in Custody Reporting Act of 2013.

To ensure reporting of all legislatively mandated DCRA data elements and
enhance the Department’s ability to evaluate the factors that may contribute to
deaths in custody, we recommend that the Federal Bureau of Prisons:
2.

Implement its plans to provide a time of death on all Death in Custody
Reporting Act of 2013 reports.

To ensure that when implemented the Department’s state DCRA data
collection is successful, we recommend that the Federal Bureau of Investigation and
OJP:
3.

Work together to identify and implement death in custody data collection
best practices and reduce duplicative data collection efforts.

To ensure that the Department fulfills DCRA’s requirements, we recommend
that the Department:
21

4.

Conduct a study on data collected under the Death in Custody Reporting Act
of 2013 as described in the statute and submit a report on the study to
Congress as soon as practicable.

22

APPENDIX 1
PURPOSE, SCOPE, AND METHODOLOGY
For this review, OIG assessed the Department of Justice’s (Department, DOJ)
progress in implementing the Death in Custody Reporting Act of 2013 (DCRA),
including its preparations to collect state-level data and its management of federal
data collection efforts. We also assessed whether the Department’s law
enforcement agencies internally collected and submitted data as required under
DCRA. The review covered the period from DCRA’s enactment in December 2014
through July 2018.
Standards
OIG conducted this review in accordance with the Council of the Inspectors
General on Integrity and Efficiency’s Quality Standards for Inspections and
Evaluation (January 2012).
Interviews
We conducted 29 in-person and telephonic interviews with more than
50 subject matter experts representing federal and non-federal agencies and
organizations. Specifically, we interviewed current and former DOJ officials
responsible for implementing DCRA from the Office of Justice Programs (OJP) and
its Bureau of Justice Assistance (BJA) and Bureau of Justice Statistics (BJS); the
Office of Legal Policy; the Office of Legislative Affairs; and the Office of the Deputy
Attorney General (ODAG). Additionally, we spoke with representatives from RTI
International, a consulting firm that provides data collection support to OJP.
We also interviewed DOJ law enforcement component officials responsible for
collecting and reporting DCRA data from the Bureau of Alcohol, Tobacco, Firearms
and Explosives; the Drug Enforcement Administration; the Federal Bureau of
Investigation (FBI); the Federal Bureau of Prisons (BOP); and the U.S. Marshals
Service (USMS). In addition, we interviewed an official from FBI’s Criminal Justice
Information Services Division, as well as a Use of Force task force member
representing the Association of State Criminal Investigative Agencies. Finally, we
interviewed Edward Byrne Justice Assistance Grant (JAG) Program grant
administrators and state criminal justice statistical agency officials from Alaska,
California, Missouri, North Dakota, Texas, and Puerto Rico. We chose to contact
officials from these five states and one U.S. territory based on a series of factors,
including state JAG award amount, state violent crime rate, and involvement in
previous BJS Arrest-Related Death data collections.
Additionally, following a June 2018 briefing of our preliminary findings to
ODAG, BJA, and BJS officials, we requested that ODAG provide a written response
to a series of questions pertaining to the topics discussed during the briefing. OJP
responded to these questions on behalf of ODAG on August 2, 2018, and we
incorporated the responses into this report.

23

Data Analysis
To assess how many federal law enforcement agencies had submitted DCRA
reports, we obtained from BJS records of all FY 2016 and FY 2017 DCRA reports
submitted by federal agencies. To ensure that BJS records represented the full
universe of deaths that DOJ law enforcement components identified as DCRA
eligible deaths, we also separately obtained and examined FY 2016 and FY 2017
internal records of DCRA deaths from the Bureau of Alcohol, Tobacco, Firearms and
Explosives; FBI; USMS; and BOP. We also identified instances in which multiple
agencies reported the death of the same individual. For example, if a USMS
detainee were to die in a BOP facility while awaiting trial, both USMS and BOP may
submit a DCRA report. In instances in which multiple agencies submitted a DCRA
report, we found that BJS removed duplicate entries and, after additional analysis
of the records, assigned the death to a single agency.
We also identified four FBI reports of death that were included in FBI internal
records but not in BJS records. After alerting BJS about this issue, BJS reached out
to FBI and has subsequently included these deaths in its records. BJS could not
definitively determine whether FBI had initially submitted these records or, if it had,
why these records were not recorded in the BJS database. However, as this was an
isolated issue that occurred early in the collection period, we do not consider it
serious enough for us to question the integrity of BJS’s collection process.
Although we had access to and reviewed BJS federal DCRA reports, we did
not provide any information about the number of deaths federal agencies reported
to BJS or the circumstances surrounding those deaths. This is because BJS had not
yet finalized the results of the FY 2016 and FY 2017 federal DCRA data collections
and because the primary purpose of this report is to assess the process by which
the Department has collected or plans to collect DCRA data from state and federal
law enforcement agencies. Additionally, while we discussed with DOJ law
enforcement component officials the processes by which components internally
report and collect death in custody information and reviewed policies detailing these
processes, we did not test the internal controls of these processes.
Policy and Document Review
We reviewed the DCRA legislation, as well as the Department’s and OJP’s
opinions on and interpretation of the legislation. Additionally, we reviewed DOJ and
OJP documentation related to DCRA policy development and communication,
including the former Attorney General’s October 2016 memorandum, the Attorney
General’s December 2016 DCRA implementation status report to Congress,
historical Federal Register notices detailing the Department’s plans to collect state
DCRA data, reports assessing the efficacy of historical BJS arrest-related death data
collections, a DCRA data sharing memorandum of understanding between BOP and
BJS, and DCRA and FBI Use of Force data dictionaries. Finally, we reviewed
additional FBI Use of Force data collection documentation, including Use of Force
task force meeting minutes, a Use of Force pilot study report, and U.S. Office of
Management and Budget comments on the pilot study report.

24

APPENDIX 2
DEATH IN CUSTODY REPORTING ACT OF 2013, Pub. L. No. 113-242

25

26

27

APPENDIX 3
THE ATTORNEY GENERAL’S OCTOBER 2016 MEMORANDUM ON
THE DEATH IN CUSTODY REPORTING ACT

28

29

30

31

32

33

34

35

36

37

APPENDIX 4

THE FEDERAL BUREAU OF PRISONS’ RESPONSE TO THE DRAFT
REPORT

38

39

APPENDIX 5

OIG ANALYSIS OF THE FEDERAL BUREAU OF PRISONS’
RESPONSE
OIG provided a draft of this report to the Federal Bureau of Prisons (BOP) for
its comment. BOP’s response is included in Appendix 4 to this report. OIG’s
analysis of BOP’s response and the actions necessary to close the recommendation
are discussed below.
Recommendation 2: Implement its plans to provide a time of death on all
Death in Custody Reporting Act of 2013 reports.
Status: Resolved.
BOP Response: BOP concurred with the recommendation and stated that it
will implement plans to provide time of death on all Death in Custody Reporting Act
of 2013 (DCRA) reports.
OIG Analysis: BOP’s planned actions are responsive to our
recommendation. On or before June 30, 2019, please provide a sample of DCRA
report records that include time of death as a data element.

40

APPENDIX 6
THE FEDERAL BUREAU OF INVESTIGATION’S RESPONSE TO THE
DRAFT REPORT

41

42

APPENDIX 7
OIG ANALYSIS OF THE FEDERAL BUREAU OF INVESTIGATION’S
RESPONSE
OIG provided a draft of this report to the Federal Bureau of Investigation
(FBI) for its comment. FBI’s response is included in Appendix 6 to this report.
OIG’s analysis of FBI’s response and the actions necessary to close the
recommendation are discussed below.
Recommendation 3: Work together [with the Office of Justice Programs
(OJP)] to identify and implement death in custody data collection best practices and
reduce duplicative data collection efforts.
Status: Resolved (On Hold/Pending).
FBI Response: FBI concurred with the recommendation and stated that it
will coordinate with the Bureau of Justice Assistance (BJA) to share best practices
on information collection; collaborate on potential shared reporting fields; and seek
to reduce any data duplication, if applicable. FBI also stated that it has already had
initial discussions on this issue with BJA and will continue these efforts as data
reporting begins.
OIG Analysis: FBI’s planned actions are responsive to our
recommendation. However, because OJP currently does not plan to begin the
Death in Custody Reporting Act state collection until FY 2020, neither FBI nor OJP
can currently take all actions necessary to close this recommendation. As a result,
this recommendation is on hold until June 30, 2020, at which time FBI should
provide documentation that details the frequency and outcome of its collaboration
with OJP on death in custody data collections.

43

APPENDIX 8
THE OFFICE OF JUSTICE PROGRAMS’ RESPONSE TO THE DRAFT
REPORT

44

45

46

47

APPENDIX 9

OIG ANALYSIS OF THE OFFICE OF JUSTICE PROGRAMS’
RESPONSE
OIG provided a draft of this report to the Office of Justice Programs (OJP) for
its comment. OJP’s response is included in Appendix 8 to this report. OIG’s
analysis of OJP’s response and the actions necessary to close the recommendations
are discussed below.
Recommendation 1: [In collaboration with the Office of the Deputy
Attorney General (ODAG)] Maintain and regularly update a list of federal agencies
with law enforcement authority and reach out to those agencies that have not
provided reports pursuant to the Death in Custody Reporting Act of 2013.
Status: Resolved.
OJP Response: OJP concurred with this recommendation and stated that
through its annual Death in Custody Reporting Act of 2013 (DCRA) federal data
collection and Census of Federal Law Enforcement Officers, it will regularly update
both the list of of eligible agencies and points of contact within those agencies. OJP
stated that by March 31, 2019, the Bureau of Justice Statistics will provide ODAG
with a list of agencies that have not responded to the data collections and will reach
out to those agencies.
OIG Analysis: OJP’s planned actions are responsive to our
recommendation. On or before June 30, 2019, please provide the updated list of
eligible agencies and points of contact within those agencies. Additionally, please
provide the list of agencies that have not responded to the DCRA federal data
collection and a summary of actions the Department of Justice has taken to reach
out to those agencies.
Recommendation 3: Work together [with the Federal Bureau of
Investigation (FBI)] to identify and implement death in custody data collection best
practices and reduce duplicative data collection efforts.
Status: Resolved (On Hold/Pending).
OJP Response: OJP concurred with this recommendation and stated that
once its Bureau of Justice Assistance (BJA) begins receiving DCRA state collection
data in January of 2020, BJA will coordinate with FBI to share best practices on
information collection; collaborate on potential shared reporting fields; and seek to
reduce any data duplication, if applicable. OJP also stated that it has already had
initial discussions on this issue with FBI and will continue these efforts as data
reporting begins.
OIG Analysis: OJP’s planned actions are responsive to our
recommendation. However, because OJP does not plan to begin the DCRA state
collection until FY 2020, neither OJP nor FBI can currently take all actions necessary
to close this recommendation. As a result, this recommendation is on hold until
48

June 30, 2020, at which time OJP should provide documentation that details the
frequency and outcome of its collaboration with FBI on death in custody data
collections.
Recommendation 4: Conduct a study on data collected under the Death in
Custody Reporting Act of 2013 as described in the statute and submit a report on
the study to Congress as soon as practicable.
Status: Resolved (On Hold/Pending).
OJP Response: OJP concurred with the this recommendation and stated
that, once state data is collected, a study under DCRA is warranted. At that time,
OJP stated, the Department will assess what type of reporting would be appropriate
based on the available data and amount of funding available to conduct such a
study and report.
OIG Analysis: OJP’s planned actions are responsive to our
recommendation. However, because OJP does not plan to begin the DCRA state
collection until FY 2020, OJP cannot currently take all actions necessary to close this
recommendation. As a result, this recommendation is on hold until June 30, 2020,
at which time OJP should provide OIG with a status update as to its plan for
conducting a study and report that details the results of its DCRA data collections.

49

The Department of Justice Office of the Inspector General (DOJ OIG) is a
statutorily created independent entity whose mission is to detect and deter
waste, fraud, abuse, and misconduct in the Department of Justice, and to
promote economy and efficiency in the Department’s operations.
To report allegations of waste, fraud, abuse, or misconduct regarding DOJ
programs, employees, contractors, grants, or contracts please visit or call the
DOJ OIG Hotline at oig.justice.gov/hotline or (800) 869-4499.

U.S. DEPARTMENT OF JUSTICE OFFICE OF THE INSPECTOR GENERAL
950 Pennsylvania Avenue, Northwest
Suite 4760
Washington, DC 20530-0001
Website

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oig.justice.gov

@JusticeOIG

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Also at Oversight.gov

 

 

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