(Un)Counting the Dead

CBPs' FY21 In-Custody Death Numbers Depend on Who's Asking

As a follow-up to the last post about the new CBP FOIA release showing at least 7 unreported deaths in FY22, we thought it might be useful to look back a year and benchmark how that compares to the previous fiscal year.

You’ll recall that we flagged CBP’s publicly available, demonstrably incomplete death-in custody chart. It shows 55 deaths in FY21, and at least 47 in FY22. The CBP FOIA release we got when we asked for CBP’s DCRA notifications shows at least 4 deaths in custody during September of Fiscal Year 22, which brings the total up to 51.

We’ve recently been analyzing the Congressionally mandated reports on deaths in custody CBP and DHS-OIG submitted for the same period.

In CBP’s report on FY21 deaths in custody, the agency sticks to the “55 in-custody deaths” number the agency used for DCRA notifications. But it also adds “53 reportable CBP-involved deaths, and 43 additional deaths that Appropriations staff requested OPR to review.”

Grand total: 151. About a third in-custody.

Incidentally, the last time the agency bothered to update this information was the last time Congress required it. That’s where all these snazzy graphics came from. Since FY21, Congress has taken a more hands-off approach to how many people died in custody. So, too, CBP.

But in DHS-OIG’s death report, which Congress tasked Inspector General Cuffari with completing in an effort to identify any systemic problems in the DHS custody system that might contribute to or cause folks to die, things gets muddier:

Inspector General Cuffari previously faced criticism by Congress for employing unscientific forensics and shoddy investigative techniques to probe (and exonerate the US government for) the preventable deaths of indigenous children in Border Patrol custody. You’d think someone called a Bad Watchdog by oversight bodies would wanna get this one thing right, especially since he spent over a million bucks on an outside investigation calling senior staff in his office unprofessional.

So, according to DHS’s Inspector General report on Deaths in ICE and CBP Custody in FY21, how many in-custody deaths occurred in CBP custody?

It’s complicated. If n=Deaths, Cuffari begins with n=117, even though CBP-OPR’s n=151.

Cuffari also inexplicably excludes the deaths of US Citizens and permanent residents in his review. Why? He doesn’t say.

Finally, Cuffari muddies the issue beyond recognition by concluding there were only five people whose deaths occurred under circumstances warranting review:

So, Cuffari reviewed 5 out 55 deaths CBP itself called “in-custody” by using a CBP policy from 2015 that doesn’t actually address the question of what a “death in custody” is at all. Based on that review, his office concluded, rather conveniently, that no systemic problems existed contributing to these deaths.

In his book, Count the Dead: Coroners, Quants, and the Birth of Death as We Know It, University of Georgia professor Stephen Berry argues, “mortality data transformed life on Earth, proving critical to the systemization of public health, casualty reporting, and human rights.” He attributes the increase in life expectancy from 30 in 1850 to 80 at the time of publication in large part to the emerging practices of asking how people died, and then trying to apply scientific processes to prevent more people from dying that way.

Anthropologist Winifred Tate’s, Counting the Dead: The Culture and Politics of Human Rights Activism in Colombia (2007) describes how different actors in a “human rights” discourse, from human rights activists to non-governmental organizations to state-sponsored or state-situated documenters of death and abuses preceding it combine to form contested spaces where certain forms of violence produces dead bodies, and where impunity reproduces that violence.

Organizations from the International Committee of the Red Cross to No More Deaths document how systems of exclusion and removal make death in bordered areas predictable, inevitable, and, at a certain level, unquantifiable, at least with precision. This is precisely because the violence of these encounters with the state carries with it the threat/promise of death as a consequence for defying it.

Of course the Congressionally mandated systemic review of deaths in DHS custody found not issues contributing to deaths. If we understand that the Purpose of a System Is What It Does (POSIWID) — as opposed to what it says — we can easily see why the Inspector General narrowed his inquiry how he did, and why it produced the result we see.