In the last several years, a string of high-profile police shootings of unarmed civilians — primarily black men — has attracted national attention, including in the 2016 presidential campaign.
But the federal government continues to have problems collecting complete and accurate data on these shootings, mainly because many police departments do not comply with a federal law requiring the reporting of such shootings, and the law’s enforcement mechanisms go unused.
In response, the Justice Department’s Bureau of Justice Statistics recently proposed a rule to govern the way information regarding officer-shootings is reported and collected throughout the country. Although media reports make this sound like an entirely new approach by the federal government, in fact the DOJ has been grappling with this issue for many years.
In 2000, Congress enacted the Death in Custody Reporting Act (DICRA) to require states to report to the federal government on arrest-related and custody-related deaths. Congress believed that obtaining data on officer-involved deaths would help address problems of transparency and accountability. DICRA lacked any enforcement mechanism then, but was reenacted in 2014 with a new provision granting the AG authority to penalize non-compliant states by reducing their federal criminal justice funding.
The Attorney General has not utilized this discretionary enforcement authority, and states routinely failed to report this vital information to the federal government. As a result, the national data collected under DICRA has been incomplete, and thus, any analysis of such data is inaccurate. Shortly after the shooting of Michael Brown and subsequent unrest in Ferguson, Missouri, in 2014, James Comey, the Director of the F.B.I., asked his staff how many African-Americans in the country had been shot by police. “They couldn’t give it to me, and it wasn’t their fault,” Comey explained. “Because reporting is voluntary, our data is incomplete and therefore in the aggregate, unreliable.”
Since 2003, the BJS has attempted to assist the collection of officer-involved death reporting through its Arrest-Related Deaths (ARD) Program. The ARD Program, which the Department of Justice pursued in order to comply with Congress’s mandate in DICRA, involved sending arrest-related death forms to law enforcement agencies around the country, and requesting that those agencies send back completed forms to the BJS.
But the ARD Program also is voluntary, and the BJS estimates that it receives reports on only 49% of arrest-related deaths that occur. Some states have not submitted a single report of an arrest-related death to the federal government.
In August 2016, BJS announced a new “hybrid” approach to collecting data under the ARD Program. In addition to voluntary reporting by law enforcement agencies, BJS would rely on publicly-available materials — like searching Google and various news outlets — to find instances of officer-involved deaths. BJS then would send additional forms to the involved law enforcement agencies to confirm what it had learned online.
The Policing Project submitted comments to the DOJ in response to the proposed new hybrid approach. First, the Policing Project suggested that the AG use her power under DICRA to reduce federal funding by up to 10 percent in states that do not comply with reporting requirements.
Second, the Policing Project suggested that BJS carefully monitor whether its new hybrid approach actually increases the rates at which states report information on arrest-related deaths. Additionally, BJS should make the collected information available to the public online.
Without knowing how many individuals are killed by police officers, or the circumstances under which these deaths occur, it is impossible to address these issues on a national level. Our hope is that BJS will consider our comments when implementing the ARD Program so that arrest-related deaths are reported in a way that is complete, accurate, and unbiased.