Congress Passes New Death in Custody Reporting Act

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December 20, 2014; Sacramento Bee

In President Obama’s several statements following the police killings of Michael Brown in Ferguson and Eric Garner in Staten Island and the subsequent failures of grand juries to indict the police officers involved, he somehow didn’t call for one obvious, necessary corrective action: requiring local and state law enforcement departments to report when and how many people were killed by their police officers.

While President Obama pondered the question, Congress went ahead to pass the Death in Custody Reporting Act of 2013, which the President signed on December 18th. Remarkably, this isn’t new legislation. There was a Death in Custody law on the books, but it somehow was allowed to expire in 2006. Why? Who knows?

The legislation addresses “deaths that occur in the process of arrest,” which might be too limited a definition given the recent tragic variety of police-related killings—for example, the killing of 12-year-old Tamir Rice in Cleveland. Still, this law will compel states to collect and report on most police killings that occur in their local jurisdictions.

However, it improves on the 2000 law by empowering the Attorney General to withhold as much as 10 percent of a state’s Edward Byrne Memorial Justice Assistance Grant funding, money from the Department of Justice used by states and localities “to support a range of program areas including law enforcement, prosecution and court programs, prevention and education programs, corrections and community corrections, drug treatment and enforcement, crime victim and witness initiatives, and planning, evaluation, and technology improvement programs.” In FY2014, the total amount of the 56 Byrne JAG awards given to states that year was $189,328,121. The Washington Post reports that the total amount of Byrne JAG funds is $500 million.

Give some credit for this to nonprofit advocacy. This legislation actually passed the Republican-dominated House of Representatives in 2013, but languished in the Democratic-controlled Senate. Its passage this month reflects the dogged advocacy work of the NAACP in keeping the issue alive. The opposition, which was strong enough to block the reauthorization of the legislation four times, seems to have been a little odd. For example, the National Association of Police Organizations opposed the bill, apparently concerned about the possibility that states’ failure to provide the required data on police killings would result in reductions of Byrne JAG funds, which benefit many local jurisdictions’ police departments.

Consider this the first of the Ferguson laws. Without the Ferguson protests, this bill sponsored by Rep. Bobby Scott (D-VA) might have failed to pass yet again. It is hardly a panacea for police killings, but it adds transparency to police activities and makes cover-ups harder to pull off. In this case, while the NAACP has been pushing for the legislation for several years, it was the unfortunate deaths of Michael Brown, Eric Garner, and others plus the street protests associated with the Ferguson Action movement that saved this bill from being deep-sixed in the latest congressional lame duck session.—Rick Cohen