Sep 06, 2023

Photo via RawPixel

Unlocking the Black Box of In-Custody Deaths

by Chris Blackwell

Arrest and incarceration are uniquely dangerous experiences, regardless of where they take place. People die every day in law enforcement custody. In jails, prisons, and immigration detention centers. On sidewalks, city streets, and in their homes. From violence, neglect, and suicide. Despite the frequency of in-custody deaths, their exact scope remains unknown and data is often intentionally obfuscated by the refusal of states to comply with federally mandated reporting requirements.

More than two decades ago, Congress passed the Death in Custody Reporting Act (DCRA), requiring states to report the number of people who die in custody or during arrest. But authorities have resisted implementing the DCRA, resulting in incomplete data that likely drastically undercounts the actual figures. Although the DCRA authorized the federal government to financially penalize states that fail to meet reporting requirements, enforcement has been lax.

In a recently released book, Death In Custody: How America Ignores The Truth and What We Can Do About It, authors Roger A. Mitchell Jr. and Jay D. Aronson argue that deaths in law enforcement custody amount to a public health emergency. Their work ties in high-profile examples and shows how journalists have long done the work of tracking in-custody deaths—from Ida B. Wells famously investigating extrajudicial lynchings in the late 19th century, to the Washington Post’s comprehensive database of police shooting deaths beginning in 2015.

Mitchell and Aronson argue that collecting accurate data is the first step toward addressing this crisis. To do this, they propose amending U.S. death certificates to begin accounting for in-custody deaths. “The government’s ultimate responsibility is to protect and preserve life, so any government system that causes death requires an immediate response—especially when those deaths are justified as serving ‘public safety,’” the authors write.

The Appeal spoke with Mitchell and Aronson about why they wrote this book and what they hope readers take away from it. The interview has been edited for space and clarity.

Donate to The Appeal

The Appeal: What is the central problem you focus on in your book?

Jay Aronson: We have no idea how many people die in law enforcement custody in the United States each year. It’s a mystery. We have some numbers based on investigative reporting and limited or incomplete data from various sources, but we have no clue how accurate any of it is. This means that it’s impossible to place individual deaths in context. Are they common or rare? Are certain facilities or agencies more prone to kill or be deadly than others? Are some much better at keeping people alive? Are certain people at greater risk for death than others?

Roger Mitchell: This is more than a mystery. It’s a public health emergency. It’s also a violation of the government’s responsibility to guarantee the civil and human rights of all people and to protect their lives and liberty. We argue in the book that being ignorant about the number of people who die in law enforcement custody each year is a choice we as a society make. We could know the true number, like we do for other kinds of deaths, if we included a check box for custodial deaths on death certificates, just like we do for tobacco use, traffic deaths, disaster-related deaths, occupational deaths, maternal deaths, and infant deaths, among many others.

TA: What do you want readers to take away from the book?

JA: The core argument we make in the book is that we need a death-in-custody checkbox on the U.S. Standard Death Certificate. The checkbox then forms the basis for all sorts of other recommendations, reviews, and policy changes, including cooperation between the Department of Justice and the Centers for Disease Control and Prevention on analyzing and reducing custodial deaths in this country. We support this demand using history in addition to all sorts of statistical evidence and medical knowledge. We show that the problem we address—official ignorance about deaths in law enforcement custody—has been known about for decades but we still haven’t solved using all sorts legal mechanisms, so it’s time to take the kind of public health approach that has worked well for the recording and analysis of many other kinds of deaths in this country.

RM: The only thing special about deaths in custody compared to other kinds of deaths is that we haven’t decided to count them using our vital statistics system yet.

TA: Jay, you are a professor of science, technology and society; Roger, you are a forensic pathologist. How did your collaboration emerge and what led you to write this book together even though you come from very different personal and professional backgrounds?

RM: We met back in 2017 at a conference in Toronto. At the end of our session on mass fatality incident response, we struck up a conversation about custodial death data that continued at the hotel bar for more than two hours. I’ve been focused on this issue for nearly 25 years, and it just seemed like fate that Jay brought it up in our conversation. At some point while we were talking, a lightbulb went off in my head and I told him we should write a book on the subject.

JA: I was honestly skeptical at first because I’d never met Roger before and it wasn’t something I was really planning to write about. But the issue was so important, and Roger’s perspective was so compelling, that I couldn’t ignore the invitation. I’m glad I didn’t just let it drop. We ended up getting to know one another pretty well while writing the book, so in addition to writing the book we also became good friends.

RM: Jay and I obviously have very different life stories, but we shared a lot in common as well. One of the first things we talked about was the role that hip hop played in our personal and intellectual development. For me, conscious rap in the 1990s expressed a lot of the things I was feeling and experiencing as a Black man in the United States, and for Jay, it really educated him about these issues—especially police brutality and the racism inherent in the criminal legal system. We listened to the same music and came to the same conclusions even despite our differences.

TA: Why do you start the book with an extended discussion of lynching and the role that Ida B. Wells and others played in enumerating them?

RM: Ida B. Wells is legendary for her efforts to count and document lynchings in the late 19th and early 20th centuries in the United States at a time when most Americans simply didn’t want to know about those things. I was curious who was doing the same kind of thing for people who die in custody and thought that Jay, as a historian, would be able answer that question. We tell the stories of many people like Wells in our book.

JA: If it wasn’t already clear, we couldn’t talk about the disciples of Ida B. Wells without first introducing her to our readers and you can’t do that without delving pretty deep into the horrific history of lynching in the United States.

TA: What are the links between what happened nearly a century ago with these extrajudicial murders and deaths that occur in the context of interactions with law enforcement and the criminal legal system today?

RM: There are so many parallels even though lynchings were, by definition, extrajudicial killings. The biggest parallel is that the government has responded to deaths in custody the same way they did with lynching: official ignorance. We only know how many people died or are dying because of the work of dedicated journalists, human rights advocates, lawyers, and family members. By not keeping accurate statistics about both kinds of death, government officials didn’t have to do anything about the problem even though everyone knows it’s taking place. The coroner system was also complicit in both situations and it’s something that’s only slowly changing today. But the biggest thing is both lynchings and deaths in custody are traumatizing not just to families, but to entire communities and that this trauma lasts for years if not generations.

TA: When most people think of deaths in custody, they probably think of police killings. How do you define this term, and why is it so important to understand the totality of mortality risks associated with the criminal legal system, not just the ones that people are most likely to hear about on the news or see on social media?

RM: Because of cell phone footage, most Americans are now pretty familiar with the kinds of police brutality and police killings that Black people have been complaining about for decades. What they don’t see is people dying preventable deaths during jail intakes from things like lack of mental health care or treatment for acute drug withdrawal symptoms, deaths in prisons from diseases that are easily treatable, or deaths of children in immigration detention due to challenges associated with getting them timely medical care. That’s why we are very clear that death in custody occurs on a continuum from first contact with law enforcement through release from custody. Though death in public spaces may be more visible and dramatic, lives lost through neglect, negligence, or poor care behind bars are no less important to capture, investigate, and prevent.

JA: The likelihood that a death in custody is actually counted shouldn’t depend on happenstance or its chances of going viral on social media. That’s not how we measure human dignity or the sanctity of life.

TA: Why is this data necessary—what are we not able to do in the absence of good data, and what could we do if we had better data?

JA: Without good data, we have no idea how big the problem is, which law enforcement agencies and institutions are better or worse in terms of mortality, and what policies and practices lead to more or fewer deaths in custody. We also have no baseline from which to measure changes over time, whether they are positive or negative.

RM: Data can also spur political will to solve a problem and generate the kind of cooperation needed to address a complex and multifaceted challenge like death in custody. Plus, Congress has already declared the importance of producing comprehensive statistics on death in custody in this country, so it’s just a matter of figuring out the best way to accomplish this task. The death-in-custody checkbox on the U.S. Standard Death Certificate is the proven way to collect accurate and reliable data on these deaths.

JA: As we both always say, though, gathering good data is the first step to solving the problem. The key is what we do with the dataset after it’s collected and made public.

ICYMI — From The Appeal

Incarcerated people are some of the most vulnerable victims of climate change. Prison officials are failing to provide them with basic protections from extreme heat, like air conditioning, ice, cold water, lighter clothes, and cool showers.

Georgia’s filing of RICO charges against 61 Stop Cop City activists marks the latest escalation in the state’s increasingly authoritarian crackdown on the protest movement.


In the news

Formerly incarcerated worker Aaron M. Kinzer writes about the connection between capitalism and captivity. While in prison, he and others assembled chairs and lounge seating—sold for as much as $3000—for pennies an hour. [Aaron M. Kinzer / The Intercept]

After a months-long investigation by El Paso Matters, two El Paso, Texas, police supervisors were charged with official oppression. They are accused of sexually harassing two women police officers. [Cindy Ramirez / El Paso Matters]

Advocates are fighting to make phone calls to and from prison free. And they’re winning. [Robin Kaiser-Schatzlein / Mother Jones]

People in prison are denied many human necessities, including touch—except, that is, on the basketball court, writes incarcerated writer A. Smith. [A. Smith / Prison Journalism Project]

Exoneree Lacino Hamilton has published In Spite of the Consequences: Prison Letters on Exoneration, Abolition, and Freedom, a collection of letters he wrote while he was incarcerated for a crime he did not commit. [Lacino Hamilton and Lisa Kloskin / Truthout]

That’s all for this week. As always, feel free to leave us some feedback, and if you want to invest in the future of The Appeal, donate here.