The Sudden Stop at the End
New FOIA Records Suggest CBP Failed to Report In-Custody Deaths
How many humans died in US Customs and Border Protection (CBP) custody during Fiscal Year 2022? It felt like a simple enough question when we asked it back in May.1
CBP has no problem keeping track of and publishing records about Border Patrol agents and Customs officers it says died, going back to 1919. So the process of counting and naming the dead seemed like something within the the agency’s capacity.
But as of January 2023, the agency’s answer to our simple question, so far as we could tell, was a still-incomplete “at least 47 people.” CBP’s publicly available table of Deaths in Custody Statistics from 2017-2022 is missing data from September 2022:
Source: CBP FOIA Document Library, Death in Custody (Last updated Jan. 22, 2024)
Conceptualizing a ‘Border’ ‘Crisis’
“Where life is precious, life is precious.” - Ruth Wilson Gilmore
Image: A memorial for migrants who died near Eagle Pass, Texas, taken in January 2024, by a US human rights worker prior to its removal by CBP/Texas military border forces.
Ask most people in Washington to define the so-called “Border Crisis,” and they probably won’t begin with the mounting number of deaths by people in and out of CBP custody.
They likely won’t mention CBP’s failure to notify Congress and the public of all the people — including US Citizens and migrant kids — who die in the process of capture or pursuit by US forces.
And they certainly won’t bring up the Department of Justice’s ongoing failure to implement and enforce the Death in Custody Reporting Act (DCRA)—a failure that keeps policymakers and the public from knowing how many humans die or disappear into deadly US deterrence mechanisms.
No, if you ask most people who say “border crisis”, they might tell you the border is “open.” (For a compelling and beautiful set of arguments in support of that outcome, John Washington’s new book is essential reading.)
The proposition that the US-Mexico border is “open”will come as a surprise to loved ones of the hundreds of humans who died in CBP custody over the past several years, to say nothing of the thousands more who perished on the journey from drowning, dehydration, death-by-wall, death-by-pursuit, or delayed emergency care.
And that is precisely because the border is in no way “open.”
But the “crisis”, at least according to the present bipartisan Washington consensus, is that there’s just not enough death at the militarized gates of US empire to deter the unwanted people on its periphery from seeking out a new life inside them.
Congress and DCRA Noncompliance
As the Project on Government Oversight testified at a 2022 hearing of the Senate Permanent Subcommittee on Investigations, the Department of Justice abdicated the responsibility Congress gave it under the Death in Custody Reporting Act (DCRA) to count the dead.
“Due to DOJ’s failure to implement DCRA, there is no single, comprehensive source of data on the number and circumstances of deaths in custody in the United States.”
Senator Ossoff, who chairs Senate PSI, opened that hearing by noting the previous bipartisan conclusions of his investigation relating to “findings of corruption, abuse, and misconduct in the federal prison system, and questioned the now-former Director of the Federal Bureau of Prisons.”
He continued:
“after a 10-month bipartisan investigation, we can reveal that despite a clear charge from Congress to determine who is dying in prisons and jails across the country, where they are dying, and why they are dying, the Department of Justice is failing to do so. This failure undermines efforts to address the urgent humanitarian crisis ongoing behind bars across the country.”
Ossoff observed, “Americans are needlessly dying, and are being killed, while in the custody of their own government.”
This, he said, represented an emergency:
The crisis in America’s prisons, jails, and detention centers is ongoing and unconscionable. The Department of Justice and the Congress must treat this as the emergency to Constitutional rights that it is.
Ossoff called the DOJ’s failure to obey the law requiring it to count deaths in custody a “moral disgrace.”
“[W]hat the United States is allowing to happen on our watch in prisons, jails, and detention centers nationwide is a moral disgrace.” - Senate PSI Chair Jon Ossoff (D-GA)
Ossoff’s colleague, PSI Ranking Member Ron Johnson (R-WI), confirmed that the the Biden DOJ obstructed the PSI’s efforts to find out how many people died in custody, and why DOJ failed to count these deaths:
Congress passed DCRA with significant bipartisan support in 2000 and again in 2014. The law requires DOJ to gather annual data on the demographics and circumstances surrounding deaths of inmates in state and local jails and prisons. Proper implementation of DCRA could have provided DOJ, Congress, and the families with information on how inmates died in American prisons and jails and inform potential reforms if necessary. Since 2014, however, DOJ has repeatedly failed to properly implement and carry out its responsibilities under DCRA. Transparency and accountability are necessary for effective congressional oversight. Unfortunately, as we experienced in our previous investigation of the U.S. Penitentiary Atlanta, PSI faced prolonged and continued obstruction by DOJ of its investigation into the Department’s compliance with DCRA. Throughout this Congress, DOJ has displayed a continued disdain for the Subcommittee’s investigatory work and congressional oversight generally. The Department’s lack of transparency is unacceptable.
And yet, Congress seems to have accepted it.
No one at the Department appears to have faced discipline for “continued obstruction” of Congressional oversight.
And the failure to accurately count all deaths in custody appears to continue unabated, including at CBP.
That crisis is why we cannot go online and learn the answer to the question, “How many people died in CBP custody in Fiscal Year 2022. And Congress says that crisis is an emergency.
“It’s Not the Fall That Kills You . . . ”
Lacking affirmative disclosure of CBP death data, we had to wait nearly 9 months for a FOIA response from the agency. The 14-page printout of DCRA notifications we got from the agency’s FOIA office last week is troubling for several reasons:
First, CBP failed to provide nearly all of what we requested.
We sought records of CBP DCRA notifications for at least 99 months (from February 2015 until at least May 2023).
CBP only gave us records from October 2021 through September 2022 (otherwise known as FY22).
Do the rest of the years not have DCRA notifications? Can CBP not find them? Has the agency simply determined it need not comply?
Second, the 14-page CBP FOIA record set contains records of 44 separate deaths-3 fewer than the “at least 47” answer we referenced above.
This suggests CBP’s DCRA notifications to DOJ are still incomplete and inaccurate.
Even still, the “47” number published on CBP’s website jumps to “51” if we add in the data CBP omitted from September 2022.
Third, it appears there are at least 7 in-custody deaths in the DCRA notifications spreadsheet that CBP never publicly reported.
We know this from comparing the deaths in the ACLU-TX, AILA, and SBCC lists, which all draw from CBP press releases and other public reporting, with the dates and locations of death CBP disclosed to us in FOIA.
At least 7 people’s deaths are missing from all three of these publicly maintained lists. The 8th is the Uvalde school shooter:
Fourth, when we broke those deaths down by month and compared them to the data publicly available on CBP’s website and other lists Southern Border Communities Coalition, ACLU of Texas, and the American Immigration Lawyers Association maintain, it became clear that CBP has been hiding deaths in custody from the public:
Source: Data analysis on file with author.
Finally, the 14-page DCRA death notification record paints a chilling story about how people die in CBP custody:
Douglas Adams once wrote, “It’s not the fall that kills you, it’s the sudden stop at the end.”
We’re reminded of this as we see “wall fall” listed five times in this document as the cause of a person’s death. That’s the same number of people CBP or other officers killed in custody by “homicide.” In 19 other cases, people died while being pursued, or struck by a vehicle, or in a vehicle accident under circumstances DCRA defines as placing them “in-custody”. Fully a quarter of the deaths CBP notified DOJ about have have no stated cause whatsoever.
It’s become common for people deploying “border crisis” rhetoric to talk about how deadly the migrant’s journey is. Or the wall. Or the river. Or the desert. Or even the CBP officers who hunt and chase would-be “Gotaways” and refer to their fellow humans as “tonks”—referring to the sound of a border guard’s weapon hitting a skull.
It was not the wall, or even the fall that killed at least five people. It wasn’t the river. Or the desert. Or the “pursuit.”
No, these records demonstrated it is not the journey of people on the move that kills them. It’s the sudden stop at the end.
In fact, it felt so simple that we had the temerity to ask it not just for a single fiscal year, but for the period beginning February 1, 2015, and continuing until at least May 16, 2023, when CBP got our FOIA request.