Is DHS Violating the Death in Custody Reporting Act?

Initial FOIA Responses Show DHS Confusion About its DCRA Obligations

Life is Precious

Ruth Wilson Gilmore teaches us: “Where life is precious, life is precious.”

Kelly Hayes recently explained what this means to her in an episode of Truthout’s Movement Memos podcast. The gist, as I understand it: By committing individually and collectively to treating our fellow beings and all creation as sacred, rather than disposable, as precious and precarious, rather than problematic and policed, we create material spaces and conditions that honor and protect life.

“Precious” is not a word that comes to mind when it comes to thinking about how most governments treat life these days. It doesn’t accurately describe how armed state agents endeavor to protect it. It certainly doesn’t match how the state responds when lives end prematurely while under government care. The obvious and apparent corollary to RWG’s seemingly tautological insight is that where life is cheap, life is cheap.

One way of cheapening life is failing to properly acknowledge when it ends. Our collective failure to make space for grief and heartbreak we all suffered during the pandemic is but one example with far-reaching consequences for us all. Far fewer of us experience the pain of erasure of of the preciousness of individual life that happens when the state fails to acknowledge a death in custody.

At the very least, perhaps we might agree that valuing life means expecting the state will record and report deaths occurring on its watch.

How often do people pass away during encounters with law enforcement? Are certain places more likely to produce death than others? Are there interventions we could make with the answers to these questions that might reduce the numbers of people dying preventably from fatal state violence incidents in the future?

As it turns out, Congress thought these questions were sufficiently important to pass a law that requires basically every law enforcement agency in the US to answer them. Providing those answers to the DOJ and Congress enables elected officials, policymakers, and the public to examine the causes and effects of fatal state violence. Ideally, we might reduce or mitigate the harm of it. The law is the Death in Custody Reporting Act (DCRA).

“A Matter of Life and Death”

But as the Project on Government Oversight (POGO) and the Leadership Conference Education Fund found recently when they teamed up to conduct a national review of DCRA compliance, law enforcement agencies in jurisdictions across the U.S. could not be bothered to count and report their dead. The fantastic report, released in February 2023, reached staggering conclusions:

1,000 lives not precious enough to document. 1,000 people’s families and communities functionally erased, in violation of federal law, by the law enforcement agencies who last had contact with them.

Georgia Senator Jon Ossoff conducted a 10-month investigation through the Senate’sPermanent Subcommittee on Investigations about the failure of law enforcement agencies to report deaths in custody. The Department of Justice’s refusal to apply the statutorily permissible reductions in federal funds that could follow when those failures occur was less central, but lurking in the background.

Can we call life ‘precious’ if it goes un-noted and unreported US-funded custodial settings?

Probably not.

Is that something most elected officials — including those describing themselves as “pro-life” — would be willing to say out loud?

Also no.

Reporting deaths in custody is, as one speaker put it during a POGO/Leadership Conference webinar about their report, “The bare minimum of the minimum.”

Like, we’re asking you not to kill people who haven’t been duly sentenced to death. We’re also asking not to let them die preventable deaths in custody. This is a baseline. But, Government, if you can’t even meet that truly bare-minimum baseline, could you just let us know when you don’t? Can you tell us when you fall short of these basic demands, so we can see how to ask the questions differently? You’re not It’s literally a matter of life and death.

FOIA Responses Suggest DHS DCRA Non-Compliance

We were inspired following the report from POGO and the Leadership Conference to understand how DOJ is collecting data about deaths in DHS custody. As DOJ itself makes clear in its guidance for law enforcement agencies, deaths in civil immigration detention fall within DCRA’s reporting requirements and the Executive Order regarding their implementation:

Federal law enforcement agencies are likewise required under DCRA to report to the Attorney General “the death of any person who is detained, under arrest, or is in the process of being arrested by any officer of such Federal law enforcement agency (or by any State or local law enforcement officer while participating in and for purposes of a Federal law enforcement operation, task force, or any other Federal law enforcement capacity carried out by such Federal law enforcement agency); or (2) en route to be incarcerated or detained, or is incarcerated or detained at—(A) any facility (including any immigration or juvenile facility) pursuant to a contract with such Federal law enforcement agency;”

So we were surprised to hear ICE’s FOIA Office explain, in response to our FOIA request, that the DCRA forms we requested from the agency are not forms ICE uses. ICE searched its Enforcement and Removal Operations and Office of Professional Responsibility offices. Which is unfortunate, because that’s not who makes the notifications. So maybe the forms exist and ICE has been complying. Or maybe ERO and OPR’s patently incorrect understanding of the death reporting obligations of the agency under DCRA are actually the positions ICE holds. We don’t know yet. We’ve appealed, and we’ll see what happens. We’re not hopeful.

One might pause here and simply ask if the response ICE provided to this request — not even bothering to figure out who’s actually responsible for submitting death notifications to DOJ, or when such notifications are required — recognizes the preciousness of life. Without this recognition, and the reporting that would come with it (at bare minimum), it’s really hard to conclude ICE thinks life is precious.

But it is. So we’ll keep trying.