Dormant Data: Why and How to Make Good Use of Deaths in Custody Reporting

By Matt Lloyd*

Volume 39.2

*  J.D. Candidate, The University of Texas School of Law, 2012; B.S. 2009, Kansas State University. I would like to thank Professor Michele Deitch for her guidance in developing this Note and the editorial staff at the American Journal of Criminal Law for all their patience and hard work. I would also like to thank my wife Kelly for her constant support and for being one of the greatest people I know.


From 2001 to 2006, roughly 3,000 individuals died each year while in the custody of state prison facilities across the United States. Another 1,000 died in locally run jails.  Many of these roughly 4,000 annual deaths are inevitable, but many are also preventable.  The latter category (i.e., preventable deaths) should never be viewed as an acceptable statistic.  The United States federal and state governments are, through their own criminal justice policies, responsible for who gets placed in custody and for how long.  They are also ultimately responsible for the conditions of such confinement.  Consequently, governments are obliged to meet the needs of individuals they place behind bars, and preventable deaths represent a categorical failure to meet that obligation.

Although courts have explicitly recognized this burden, they have promulgated a counterproductive standard for enforcing it.  By requiring a subjective showing of “deliberate indifference” to the plight of prisoners on the part of officials, courts have encouraged prison and jail officials to be ignorant of any systemic issues that have not become catastrophic.  There is no single solution to this conundrum, but significant progress can be made with a relatively simple step.  Deaths in custody (“DIC”) information can be used to encourage transparency and accountability in a system that currently lacks it.  This is information that we already have, and it can be used to assess and address major problems (on the national, state, and local scale) before they become catastrophic.  If DIC data is analyzed and findings are submitted to the relevant officials, willful ignorance becomes much less viable as a defense.  But more importantly than that, using DIC data in this way espouses a more constructive criminal justice policy—that justice officials should look towards affirmatively meeting their obligation to care for those in its custody, rather than doing just enough to avoid civil liability to inmates.

In Part II of this Note, I begin by discussing the current “deliberate indifference” standard that governs whether detainees’ conditions of confinement constitute cruel and unusual punishment.  This discussion will include the United States Supreme Court’s reasoning behind the standard, as well as the problems that having such a standard create.  Next, in Part III, I examine the current requirements governing the reporting of deaths in custody at both the federal and state levels.  In Part IV, I discuss realistic options concerning how DIC data may be used to have an immediate positive impact on our federal and state detention facilities, and how this impact may undo much of the danger associated with the United States Supreme Court’s “deliberate indifference” standard. Finally, I provide a few illustrations using currently existing DIC data in Part V. 

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