The ACLU of Wisconsin sent the below comments to Attorney General Lynch, Deputy Attorney General Yates, and Assistant Attorney General Mason regarding the Proposed Implementation of Deaths In Custody Reporting Act (DICRA):
Dear Attorney General Lynch, Deputy Attorney General Yates, and Assistant Attorney General Mason:
The ACLU of Wisconsin is writing to express concerns with the proposed implementation of the Deaths In Custody Reporting Act (DICRA).
DICRA was enacted almost two years ago, so guidance on the law’s data collection and reporting process is welcomed. However, we have significant concerns with the proposed process published in the Federal Register.
First, the proposal is a departure from DICRA provisions that require states receiving federal funding to report deaths in custody to the federal government. The Department of Justice is attempting to shift the data collection and reporting requirements from the states to the Bureau of Justice Statistics (BJS) by having BJS collect data on deaths in custody through its Arrest-Related Deaths (ARD) program instead of states. States and law enforcement agencies, the entities closest to the data being sought, should be responsible for collecting and reporting deaths in custody to the federal government as mandated by law. It will be difficult for DOJ to get an accurate picture of trends in custodial deaths if state and local law enforcement agencies are not held accountable for collecting data after a death occurs.
Second, with BJS assuming responsibility for states’ data collection and reporting, the proposal indicates that BJS will rely primarily upon publicly available information (“open-source review”) for its ARD program. This means that should The Guardian and the Washington Post decide to continue to invest in this research, those news outlets will continue to be the best national sources for data on deaths in police custody. Certain media outlets have been critical to understanding police-community encounters over the past year, but it is unlikely that national media attention and resources can remain on policing indefinitely. Thus, relying on media accounts and statistics is an inadequate method of collecting data to determine the circumstances under which people die while in law enforcement custody.
Moreover, the proposal does not indicate how federal law enforcement agencies will comply with DICRA. The law is clear in its application to federal law enforcement including immigration officials, so the guidance must detail how federal agencies, including Customs and Border Protection (CBP), will comply with DICRA. Also, the proposal does not provide a clear definition for the term “custody,” particularly instances where a fatal police shooting has occurred without an arrest.
Additionally, the proposal does not discuss penalties for noncompliance. DICRA gives the Attorney General the discretion to subject states that do not report deaths in custody to a ten percent reduction of Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG) funds. The financial penalty is critical to successful implementation of DICRA as voluntary reporting programs on police-community encounters have failed. Reportedly, only 224 of the more than 18,000 law enforcement agencies reported approximately 444 fatal police- shootings to the Federal Bureau of Investigation (FBI) in 2014, though we have reason to believe that annual numbers of people killed by police exceeds 1,000.
Finally, we would like to ask that the Office of Justice Programs require state and local law enforcement agencies that benefit from Department of Justice federal grants and programs to collect and report data on incidents of police use of force and other police-community encounters, such as pedestrian and traffic stops. The federal government awards close to $4 billion in such grants annually, and any discretionary grant should be conditioned upon providing data.
Any statutory or formula grant, including the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG), should require data reporting as part of its existing performance metrics. To achieve complete and uniform data collection and reporting, the federal government must solicit disaggregated data that is reflective of all police community encounters, including those encounters with people of color, women, youth, and people with disabilities. Data concerning sexual assault and misconduct by law enforcement agents should also be collected and reported.
Thank you for your attention to this matter. If you have any questions or comments, please feel free to contact me at 414-272-4032 x213 or firstname.lastname@example.org
ACLU of Wisconsin
cc: Roy Austin, Deputy Assistant, Domestic Policy Council
Vanita Gupta, Principal Deputy Assistant Attorney General, Civil Rights Division Sarah Saldaña, Director, U.S. Immigration and Customs Enforcement
R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection Denise E. O’Donnell, Director, Bureau of Justice Assistance
William J. Sabol, Director, Bureau of Justice Statistics
 Federal Register, Vol. 81, No. 150, DOJ, Agency Information Collection Activities; Proposed Collection Comments Requested; New Collection: Arrest-Related Deaths Program, Aug. 4, 2016, available at https://www.gpo.gov/fdsys/pkg/FR-2016-08-04/pdf/2016-18484.pdf (hereinafter Proposed Collection Comments).
 Pub.L. 113-242.
 Proposed Collection Comments, supra note 2 at 51490 (stating that the BJS “redesigned methodology includes a standardized mixed method, hybrid approach relying on open sources to identify eligible cases, followed by data requests from law enforcement and medical examiner/coroner offices for incident-specific information about the decedent and circumstances surrounding the event.”).
 See, e.g., The Guardian, The Counted: People killed by police in the U.S., available at https://www.theguardian.com/us-news/series/counted-us-police-killings.
 See Federal Bureau of Investigation: Uniform Crime Reporting, 2014 Crime in the United States, available at https://ucr.fbi.gov/crime-in- the-u.s/2014/crime-in-the-u.s.-2014/tables/expanded-homicide- data/expanded_homicide_data_table_14_justifiable_homicide_by_weapon_law_enforcement_2010-2014.xls.
 See John Swaine & Oliver Laughland, Eric Garner and Tamir Rice among those missing from FBI record of police killings, The Guardian, Oct. 1, 2015, available at http://www.theguardian.com/us-news/2015/oct/15/fbi-record-police-killings-tamir-rice-eric-garner. See also Kimberly Kindy, Marc Fisher, Julie Tate & Jennifer Jenkins, A Year of Reckoning: Police Fatally Shoot Nearly 1,000, WASH. POST, Dec. 26, 2015, available at http://www.washingtonpost.com/sf/investigative/2015/12/26/a-year-of-reckoning-police-fatally-shoot-nearly-1000/.
 Brennan Center for Justice, Success-Oriented Funding: Reforming Federal Criminal Justice Grants (2014), available at