We now know some of their names and how they died. Oscar Grant. Eric Garner. Michael Brown. Laquan McDonald. Tamir Rice. Walter Scott. Freddie Gray. Sandra Bland. Alton Sterling. Philando Castile. Stephon Clark. Atatiana Jefferson. Breonna Taylor. Daniel Prude. Antwon Rose II. Rayshard Brooks. Andre Hill. Daunte Wright.
By Roger A. Mitchell Jr. and Jay D. Aronson
The following is adapted from Death in Custody: How America Ignores the Truth and What We Can Do about It by Roger A. Mitchell Jr., MD, and Jay D. Aronson, PhD. Copyright 2023. Published with permission of Johns Hopkins University Press.
The United States of America is experiencing a public health crisis, the scale of which is intentionally obscured by government inaction and outright obfuscation. Even in the era of #BlackLives-Matter and cameras everywhere—when police shootings dominate national social media; when the deaths of children in immigration detention camps are front-page news; when highly paid professional athletes risk their careers to protest police violence; when people incarcerated in the nations’ prisons and jails beg for the tools they need to protect themselves from a pandemic—we significantly underestimate the number of people who die in law enforcement custody each year. We know that interaction with the criminal legal system is a significant risk factor for death in this country and that this risk is compounded by race, yet we do little to address this problem. Black people are killed by police at more than twice the rate of whites and Hispanics, and in the vast majority of cases involving Black victims, the police officers involved are white.
The scale of these deaths has been obscured by willful ignorance of the very government officials who are charged with preserving the life and liberty of all Americans. Through historical analysis, we demonstrate that this deliberate ignorance began in the lynching era and continues to the present day. Complicity in this crisis starts in local law enforcement agencies and often involves coroners’ and medical examiners’ offices, as well as prosecutors. But the ignorance does not stop there. It extends all the way to the halls of Congress and the White House. Those in power in this country are reluctant to accurately record deaths in custody, because it would pull back the veil on a system that disregards the fundamental rights of far too many people. We know how many Americans die as a result of tobacco use or exposure, how many people are killed by cancer, heart disease, and diabetes, how many people die in work-related accidents, and how many people die as a result of pregnancy or birth. Ignorance about deaths in custody is not accidental. It is intentional, officially sanctioned, and officially produced.
Increasingly, the American public is demanding change in the way the criminal legal system operates and accountability when law enforcement officials cause harm. The protests that took place in the wake of the murder of George Floyd in May 2020 represent one of the largest social movements in the history of the United States. There is an obvious reason for this shift in public perception and opinion. Deaths in custody were once highly localized events that few people witnessed, but now they are often filmed thanks to the ubiquity of smartphones and police cameras.
Once these videos circulate nationally or even internationally via social media into mainstream media sources, victims’ representatives and the affected community have the capacity, as never before, to challenge the governmental narrative surrounding why and how lethal force was used. Crucially, the public can see for itself the circumstances that led to death at the hands of law enforcement and that the narratives offered by police officers and their departments often do not match what has been filmed. Not all people who die in police custody remain unknown to the wider world.
We now know some of their names and how they died. Oscar Grant. Eric Garner. Michael Brown. Laquan McDonald. Tamir Rice. Walter Scott. Freddie Gray. Sandra Bland. Alton Sterling.Philando Castile. Stephon Clark. Atatiana Jefferson. Breonna Taylor. Daniel Prude. Antwon Rose II. Rayshard Brooks. Andre Hill. Daunte Wright.
With all of the viral social media attention and public protest, Americans could be forgiven for thinking they understand the scope of the problem, but they would be wrong. For every name we know, there are many we do not. Whether it is because many killings aren’t caught on video or seen by witnesses, or a story doesn’t gain traction on social media, or there is no local journalist around to report on it, our knowledge of police killings is haphazard at best. The number of people killed by police in twenty-first-century America is “a statistical and public policy mystery.” We know little about whether civilians get killed by police unnecessarily and, if they do, at what rate. And if there are a significant number of unnecessary killings, we lack the data we need to reduce them.
In a country that has one of the most comprehensive vital statistics programs in the world, the only explanation for why we do not have accurate death in custody numbers is that powerful interest groups do not want the public to have access to this information or that the people with political power in this country simply do not care. The problem is even worse inside the nation’s jails and prisons, where citizen cameras aren’t available to record conditions for the world to see and where death often comes from long-term neglect rather than a sensational moment of violence.
In the midst of the controversy generated by the killings of Eric Garner and Michael Brown, President Barack Obama signed into law the Death in Custody Reporting Act (DCRA) of 2013, a reauthorization of the original 2000 legislation, which required law enforcement agencies, prisons, jails, and detention centers to report all deaths that occur in custody. The 2013 act defines custody as beginning the moment of first contact with law enforcement officials all the way through incarceration.
Despite the aspirational nature of this law, many jurisdictions in the United States have yet to comply, and the federal government has done little to procure this data. The DCRA established one of several government programs that have been set up to gather information about deaths in custody but that have fundamental flaws relating to responsibilities for reporting, oversight of the reporting process, and who gets to describe the circumstances surrounding the death in custody.
Local authorities like police departments or county prosecutors are often not in the best position to oversee the use of force by local law enforcement. The federal government has a constitutional obligation to provide this oversight when local government is unwilling or unable to do so. We see time and time again that punishment for unjustifiable homicides and change in use-of-force policies and practices by law enforcement officials almost always requires federal intervention. Police and correctional officers face incredible challenges on the job, but as public servants, they must be held accountable when they use force, and especially fatal force, with or without clear justification.
All uses of force must be carefully documented and investigated to ensure that they are kept to an absolute minimum. Further, we cannot rely on police departments and carceral institutions to self-report on deaths in their custody without external oversight.
Only when data are accurate, complete, and reliable can we use this information to determine whether an unusual or unexpected number of people are dying in particular jurisdictions, correctional facilities, or detention facilities. As a society, we need to have accurate records of use of force, especially fatal force, and we need to be able to compare rates of the use of force among comparable jurisdictions and institutions to know what rates of the use and severity of force we can reasonably expect.
In other words, the use of force by law enforcement is a public health issue that demands the gathering and analysis of vital records, just as we do with the environmental, social, and biological factors that influence disease and death. The provision of mental and physical health care to those in custody is equally a public health issue because we know that all too often this care is substandard, violent, or even negligent, leading to poor outcomes including death.
Reducing the frequency of deaths in custody requires comprehensive reform of reporting, categorization, and analysis of death statistics. Medical examiners and coroners—who are legally responsible for investigating suspicious, unexpected, or unexplained deaths—are an untapped resource in this domain. These public officials have the potential to play a unique role in ensuring uniformity of practice in investigating, examining, diagnosing, and reporting deaths in custody. Because of the lack of infrastructure and guidance, this uniformity does not yet exist. This problem can be solved, however, in ways that have proven practical and effective in the context of other kinds of death.
Over the past century, the United States has built up a robust system of vital records and statistics that enables the federal government to aggregate and analyze information about births and deaths both regionally and nationally. Factors deemed worthy of analysis get a checkbox on the death certificate so they can be recorded in a way that ensures standardization across the country.
It is past time for a death in custody checkbox to be included on the US Standard Death Certificate as we now have for such factors as tobacco use, pregnancy and childbirth, or vehicular accidents. A checkbox for deaths in custody on the US Standard Death Certificate would enable anyone who is certifying a death, during any phase of interaction with law enforcement, to objectively identify that this death involved interaction with the criminal legal system.
The time is right for this intervention. The National Center for Health Statistics’ contract with state and local jurisdictions is ready for renewal. (Death certificates are collected from local authorities by state and territorial agencies, which are in turn paid by the federal government to share this data with the national vital statistics system.) By custom, changes are made to the US Standard Death Certificate during this contract renewal. The effort to include this checkbox on the Standard Death Certificate will undoubtedly be controversial. Stakeholders in the vital statistics domain will worry about the additional time burden caused by yet another step in the death registration process.
Law enforcement officials will object that they may be blamed for deaths that they could not prevent or that were not their fault (for example, motor vehicle crashes while a suspect is fleeing from police; drug overdoses during arrest or jailing; heart attacks, illnesses, or other “natural,” nonviolent deaths; or unexpected suicides during incarceration). Others will suggest that while the exact number of people who die as a result of their interactions with law enforcement is unknown, it is undoubtedly small compared to other causes. Many people will argue that there are already several mechanisms for gathering this data (including the National Violent Death Registration System of the Centers for Disease Control and Prevention and the FBI Uniform Crime Report’s Justifiable Homicide measure) and, therefore, that a checkbox is unnecessary. They may also say that we have plenty of recent data from the Bureau of Justice Statistics’ recently shuttered Mortality in Correctional Institutions Program. These data were never publicly available, however, and were not analyzed using a public health framework. The fact that we have no idea how many people die in custody despite all of these flawed reporting mechanisms tells us that they are not working as intended.
Just including a checkbox on death certificates is not enough, of course. We recommend several other measures to complement this practical reform in data collection, including programs for analyzing this data through a public health lens after it is collected; reform of the medicolegal death investigation system through a national process co-organized by the
Centers for Disease Control and Prevention (CDC) and the US Department of Justice; and creation of regional and federal death in custody review panels similar to those that already exist for other sorts of fatalities, such as maternal, child, and occupational deaths.
All Americans will be better off if we understand and reduce the number of deaths in custody in this country. The resources already exist to obtain accurate counts of the number of people who die in custody each year. The real question is whether we as a society actually want to reduce these deaths.
Roger A. Mitchell Jr., MD, (WASHINGTON, DC) is a professor and chair of pathology at the Howard University College of Medicine. He is a forensic pathologist who previously served as the Chief Medical Examiner and Deputy Mayor for Public Safety and Justice of Washington, DC. He is the author of The Price of Freedom: A Son’s Journey.
Jay D. Aronson (PITTSBURGH, PA) is the founder and director of the Center for Human Rights Science at Carnegie Mellon University, where he is a professor of science, technology, and society in the Department of History. He is the author of Who Owns the Dead? The Science and Politics of Death at Ground Zero and Genetic Witness: Science, Law, and Controversy in the Making of DNA Profiling.
