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| David Janovsky |
The U.S. Department of Justice has recently made some progress toward fully complying with the law, and both the White House and the DOJ have touted this. But behind the scenes, Justice Department lawyers have been engaged in a continuing effort in court keep whatever the government learns about deaths in custody hidden from the public.
The DCRA is more than just another government data program. Its intent is to help save lives by providing a definitive, comprehensive accounting of the number and circumstances of deaths in government custody at all levels, ranging from local police traffic stops to state and federal prison.
Crucially, the Justice Department is required by law to study the information it gathers in order to inform efforts to reduce deaths in custody.
After the law was seemingly neglected for years, recent statements by the DOJ and the administration now appear to reflect an understanding of the stakes involved in getting DCRA right.
"You now have high level attention if you didn't have it before," Attorney General Merrick Garland told Sen. Jon Ossoff, D-Ga., during a March 2023 hearing.[2]
"Preventing and reducing deaths in custody is both a legal responsibility and a solemn moral obligation," wrote Amy Solomon, head of the DOJ's Office of Justice Programs, in late May.[3]
And the White House wrote in a press release this May, marking the fourth anniversary of George Floyd's murder and the second anniversary of the administration's executive order on policing, that having access to reliable "data on deaths in custody would be of great importance to those who work in the criminal justice system, government officials, researchers, public health, and loved ones impacted by these deaths."[4]
As that last statement correctly implies, collecting data is an important first step. But for data to be a catalyst for change, the public needs to have it. And for as long as high-ranking officials have been issuing promising statements about the DCRA, Justice Department lawyers have been in court seeking to keep the data the department produces out of the public eye.
At issue are two lawsuits that media organizations have brought under the Freedom of Information Act. The lawsuits — one in the U.S. District Court for the District of Columbia, brought by Gannett Satellite Information Network LLC, which owns USA Today, and the other in the U.S. District Court for the Central District of California, brought by The Appeal Inc. — each seek the underlying data the DOJ has collected pursuant to the DCRA at various points over the last decade.[5]
Because of bureaucratic shifts within the DOJ with regard to how the DCRA is administered,[6] the two lawsuits seek slightly different information. Gannett is seeking only data collected by the Bureau of Justice Statistics under its Mortality in Correctional Institutions Program, which ended in 2019 when the DOJ shifted data collection under the DCRA to the Bureau of Justice Assistance.
The Appeal has requested much of the BJS data as well, but also seeks information collected by the BJA in 2019 and 2020. When discussing The Appeal's request, this article focuses on the BJA portion, because the BJA's collection remains in effect today.
The Justice Department has met both lawsuits with strenuous arguments against disclosure that appear at odds with officials' stated recognition of the importance of the DCRA.
Reporters have turned to FOIA requests because the DOJ has proactively released little data about deaths in custody. It has published statistical snapshots — which provide high-level summaries — of deaths in federal custody. They provide enough information to allow a reader to answer questions like, "How many people died while being arrested by the FBI?" or "How many people were killed by federal law enforcement officers?" but not, "How many people were killed by FBI agents?"[7]
The Justice Department has not published any DCRA data about deaths in states and localities, which account for the vast majority of instances in which people are considered "in custody."
In both legal cases, the Justice Department has invoked three exemptions to FOIA to argue against releasing the data: Exemption 3, based on the claim that a statute limiting the disclosure of statistical information bars release; and Exemptions 6 and 7(c), which protect against "unwarranted" breaches of personal privacy.
The DOJ has already lost once on the Exemption 3 claim. Last year, in Gannett v. DOJ, U.S. District Judge Beryl Howell rejected the argument that the confidentiality provision the DOJ cited[8] applied to DCRA data for the simple reason that the provision specifies that it only applies to information collected under Title I of the Crime Control Act, and the DCRA appears in an entirely different part of the U.S. Code.
Judge Howell also noted "the stark difference between the purpose of Title I's confidentiality provision in the Crime Control Act, to assist law enforcement, and the focus on transparency, accountability, and oversight of custodial institutions at the heart of the DCRA."[9]
The Justice Department could have recognized Judge Howell's ruling as freeing it to provide national data on who is dying in custody and why, but it has instead continued its efforts to keep this data from public view.
More than a year after that ruling, the DOJ is not only seeking reconsideration of the Exemption 3 ruling in the Gannett case, it is also advancing the claim in The Appeal v. DOJ.
The Exemption 3 claim is arguably even less plausible when applied to information collected by the BJA.
Recall that the confidentiality provision at issue in the Exemption 3 claim protects certain research and statistical information. But the DOJ itself moved data collection away from its statistical agency, the BJS, claiming that certain provisions in the DCRA statute meant that the program had to be reclassified as a policy program instead of as a statistical program.[10]
That reclassification meant that the BJS, as a statistical agency, could no longer collect the data.
It is reasonable to question whether data collected by the BJA, under the auspices of a policy program, could be covered by a confidentiality provision that applies to statistical data. However, the DOJ's brief in The Appeal's case does not engage with the ramifications of this reclassification in the Exemption 3 context.
Simultaneously, the Justice Department is also advancing arguments under Exemptions 6 and 7(c). These exemptions are adjudicated by balancing individuals' privacy interests against the public interest in disclosure. The DOJ claims that the public benefit of release would be "minimal, if not zero" — an argument that deserves particular scrutiny.[11]
The DOJ's argument is twofold: First, the statistical snapshots that are published about deaths in federal custody are sufficient, and disclosing the raw data would confer no additional benefit. Second, data from the state reporting program "are not relevant to … shedding light on the operations of the federal government," the DOJ argued, emphasizing "federal" in the original.[12]
On the contrary, the public interest in the data is quite compelling.
As discussed above, the published snapshots leave far too many questions unanswered, because it is impossible to analyze multiple variables at the same time to understand, for example, how many people in a specific facility may be dying from similar causes. The claim that some aggregated data is adequate fundamentally misunderstands what level of analysis is necessary to truly comprehend, and thus work toward preventing, deaths in custody.
The claim that releasing the state data would shed no light on federal government activity also misses the full picture. The DCRA is a federal law, so the DOJ's work to collect that data is mandatory.
And the DOJ's ongoing efforts to improve DCRA collection after years of struggle to collect adequate data is highly salient: In addition to the statements by administration officials, DCRA implementation has been the subject of an inspector general report,[13] a Government Accountability Office audit,[14] an investigation and hearing by the U.S. Senate Permanent Subcommittee on Investigations,[15] and pieces by media outlets and advocates.
There is clearly public interest in knowing whether the program is working.
But the federal interest at stake doesn't end there. The federal government funds state and local law enforcement and corrections agencies. It participates in joint task forces, contracts with detention facilities, sets best practice standards for agency policies and investigates violations of constitutional rights.
It's entirely reasonable to think that the federal government's practices have an impact, for better or worse, on the well-being of people in state or local custody.
For too long, the Justice Department has dragged its feet on implementing the DCRA. This is the time to finally get it right: The department's leaders appear to understand the stakes. The White House is on board. Congress, government watchdogs, civil society and the public are paying attention.
Against this backdrop, the department's legal posture, which arguably takes a maximalist position against transparency in the courts, is counterproductive and disappointing.
The public will have to hope that judges reject the DOJ's claims, and move us one step closer to the DCRA's promise of using data to save lives.
David Janovsky is a senior policy analyst at the Project on Government Oversight.
Disclosure: The author's organization has submitted statements to the DOJ and Congress advocating for DCRA reform.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.pogo.org/reports/matter-of-life-and-death-the-importance-of-the-death-in-custody-reporting-act.
[2] https://www.ossoff.senate.gov/press-releases/watch-following-his-10-month-bipartisan-investigation-sen-ossoff-presses-attorney-general-garland-on-uncounted-deaths-in-custody.
[3] https://www.ojp.gov/safe-communities/inside-perspectives/taking-action-to-reduce-deaths-in-custody.
[4] https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/24/fact-sheet-biden-%E2%81%A0harris-administration-highlights-accomplishments-on-the-second-anniversary-of-historic-executive-order-to-advance-effective-accountable-policing-and-strengthen-public/.
[5] https://www.courtlistener.com/docket/63110129/gannett-satellite-information-network-llc-v-us-department-of-justice/; https://www.courtlistener.com/docket/66556926/the-appeal-inc-v-united-states-department-of-justices-office-of-justice/.
[6] https://www.pogo.org/analysis/doj-can-must-improve-data-on-deaths-in-custody.
[7] https://bjs.ojp.gov/document/fdcda21st.pdf.
[8] 34 U.S.C. 10231.
[9] https://storage.courtlistener.com/recap/gov.uscourts.dcd.240476/gov.uscourts.dcd.240476.21.0.pdf.
[10] https://oig.justice.gov/reports/2018/e1901.pdf, 11.
[11] https://storage.courtlistener.com/recap/gov.uscourts.cacd.869057/gov.uscourts.cacd.869057.44.1_1.pdf, 26.
[12] https://storage.courtlistener.com/recap/gov.uscourts.cacd.869057/gov.uscourts.cacd.869057.44.1_1.pdf.
[13] https://oig.justice.gov/reports/2018/e1901.pdf.
[14] https://www.gao.gov/assets/d22106033.pdf.
[15] https://www.hsgac.senate.gov/subcommittees/investigations/hearings/uncounted-deaths-in-americas-prisons-and-jails-how-the-department-of-justice-failed-to-implement-the-death-in-custody-reporting-act/.