Existing law requires a law enforcement agency or agency in charge of a correctional facility, if a person dies while in the custody of that law enforcement agency or agency in charge of the correctional facility, to report in writing to the Attorney General, within 10 days after the death, all the facts in the agencys possession concerning the death. Existing law provides that these writings are public records and open to public inspection, except with respect to confidential medical information, as specified.

This bill would require the law enforcement agency or agency in charge of the correctional facility, if any of the information changes or new information becomes available regarding the death, to update its written report to the Attorney General within 10 days of the date of the change or the date the new information becomes available. By imposing new duties on local government agencies, the bill would impose a state-mandated local program.

The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law requires a law enforcement agency or agency in charge of a correctional facility, if a person dies while in the custody of that law enforcement agency or agency in charge of the correctional facility, to report in writing to the Attorney General, within 10 days after the death, all the facts in the agencys possession concerning the death. Existing law provides that these writings are public records and open to public inspection, except with respect to confidential medical information, as specified.

This bill would require the law enforcement agency or agency in charge of the correctional facility, if any of the information changes or new information becomes available regarding the death, to update its written report to the Attorney General within 10 days of the date of the change or the date the new information becomes available. By imposing new duties on local government agencies, the bill would impose a state-mandated local program.

The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law requires a law enforcement agency or agency in charge of a correctional facility, if a person dies while in the custody of that law enforcement agency or agency in charge of the correctional facility, to report in writing to the Attorney General, within 10 days after the death, all the facts in the agencys possession concerning the death. Existing law provides that these writings are public records and open to public inspection, except with respect to confidential medical information, as specified.

This bill would require the law enforcement agency or agency in charge of the correctional facility, if any of the information changes or new information becomes available regarding the death, to update its written report to the Attorney General within 10 days of the date of the change or the date the new information becomes available. By imposing new duties on local government agencies, the bill would impose a state-mandated local program.

The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

 CONSENT  

Bill No: AB 3092

Author: Ortega (D)

Introduced: 2/16/24

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 4-0, 5/28/24

AYES: Wahab, Seyarto, Skinner, Wiener

NO VOTE RECORDED: Bradford

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 73-0, 5/2/24 (Consent) - See last page for vote

SUBJECT: Attorney General: law enforcement agencies: reporting requirements: deaths

SOURCE: Attorney General Rob Bonta

DIGEST:

This bill requires law enforcement agencies or state correctional facilities that report a death of a person in their custody to update its written report to the Attorney General within 10 days of when a change within the case occurs or when the new information becomes available.

ANALYSIS:

Existing law:

1. Provides the public access to meetings of public bodies and the writings of public officials and agencies. (California Constitution Art. I Sec. 3 (b)(7).)
2. Provides that if a person dies while in the custody of any law enforcement agency or while in custody in a local or state correctional facility in California, the law enforcement agency or the agency in charge of the correctional facility shall report in writing to the Department of Justice (DOJ), within 10 days after the death, all facts in the possession of the law enforcement agency or agency in charge of the correctional facility concerning the death. (Gov. Code, § 12525.)
3. Provides that such in-custody death reports are public records within the meaning of the California Public Records Act and are open to public inspection. (Gov. Code, § 12525.)
4. Defines “public records” as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Gov. Code § 7920.530)
5. Asserts that public records are open to inspection at all times during the office ours of state and local agencies and that every person has the right to inspect them, exempted as otherwise provided. (Gov. Code § 7922.525 (a).)
6. Allows public agencies to also comply with Gov. Code § 7922.525 by posting any public record on its internet website and directing public requests to its website. (Gov. Code § 7922.545.)
7. Provides that when a person in custody dies, the agency with jurisdiction over the state or local correctional facility with custodial responsibility for the person at the time of their death, shall post the following information on its website for the public to view within 10 days of the date of death:
   1. The full name of the agency with custodial responsibility at the time of death;
   2. The county in which the death occurred;
   3. The facility in which the death occurred, and the location within that facility where the death occurred;
   4. The race, gender, and age of the decedent;
   5. The date on which the death occurred;
   6. The custodial status of the decedent, including, but not limited to, whether the person was awaiting arraignment, awaiting trial, or incarcerated; and
   7. The manner and means of death. (Pen. Code, § 10008, subd. (a) & (b).)
8. Does not permit the public disclosure of confidential medical information that may be submitted to the Attorney General as part of the report detailing the death of the person in custody. (Gov. Code, § 12525 (c).)
9. Requires states receiving funds from the Edward Byrne Memorial Justice Assistant Grant Program and other specified grant programs to report to the U.S. Attorney General on a quarterly basis information regarding the death of any person who is detained, under arrest, in the process of being arrested, is en route to be incarcerated, or is incarcerated at a municipal or county jail, state prison, state-run boot camp prison, boot camp prison that is contracted out by the state, any state or local contract facility, or other local or State correctional facility (including any juvenile facility). This information must include:
   1. The name, gender, race, ethnicity, and age of the deceased;
   2. The date, time, and location of death;
   3. The law enforcement agency that detained, arrested, or was in the process of arresting the deceased; and
   4. A brief description of the circumstances surrounding the death. (34 U.S.C. § 60105, subs. (a) & (b).)

This bill:

1. Requires law enforcement agencies or agencies in charge of correctional facilities that must submit in-custody death information to the DOJ within 10 days after the death, to update their initial written report to the DOJ if any of the previously provided information changes or if new information becomes available regarding the death, such as the manner and means of the death.
2. Requires the update to be made within 10 days of the date that the in-custody death information that was previously provided changes or the date new information becomes available.
3. Asserts that making information concerning the death of a person while in custody available to the Attorney General is in the public interest and furthers the purposes of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution.

Background

California’s High Jail Death Rate .Between 2006 and 2020, 185 people died in San Diego County jails – one of the highest totals among counties in the State. In February 2022, the State Auditor’s Office released the results of an audit of the San Diego County Sheriff’s Department – which oversees the jails – to determine the reasons for in-custody deaths and identify the steps the department took to address the deaths. The 126-page audit reached two overarching conclusions: (1) The San Diego County Sheriff’s Department did not take sufficient steps to prevent the high number of deaths in its jails, and (2) neither the Sheriff’s Department no the Citizens Law Enforcement Review Board (CLERB), a citizen-governed board responsible for reviewing complaints of misconduct and investigating deaths connected to the actions the Sheriff’s Department or Probation Department, has taken adequate action in response to the deaths of incarcerated individuals ( “San Diego County Sheriff’s Department – It Has Failed to Adequately Prevent and Respond to the Deaths of Individuals in Its Custody” California State Auditor, February 3, 2022). The audit also cited issues with legislation that allowed the Sheriff’s Department to not ensure inmate safety, implying that similar problems may exist statewide. The report claimed that deficiencies within the Sherriff’s Department are a result of, “statewide corrections standards that are insufficient for maintaining the safety of incarcerated individuals” (California State Auditor’s Office, 2022). Since 2005, over 2,700 people have died while under the custody of California county jails (OpenJustice Data. OpenJustice, California Department of Justice), and despite jail populations being lower, deaths have reached record rates in the past few years.

Coverage surrounding jail deaths has also increased with many news outlets covering the rise of deaths and lack of sufficient action by the legislature. A recent CalMatters article, (California jails are holding thousands fewer people, but far more are dying in them. Calmatters, 2024) analyzed how despite jail populations decreasing, jail deaths continue to remain at high levels. Past reporting by McClatchy and ProPublica (California's Jails Are in a Deadly Crisis. Here’s How Experts Suggest Fixing Them. ProPublica. January 6, 2020) revealed how state inspections of jails documented many violations but faced resistance from sheriffs who disagreed with the state’s findings. This bill seeks to maintain current information for oversight purposes surrounding deaths of people under custody.

Current Reporting of Deaths While Under Custody. Federal law requires states receiving grant funding from the Edward Byrne Memorial Justice Assistant Grant (JAG) to make quarterly reports to the U.S. DOJ regarding the death of persons detained, under arrest, or incarcerated in municipal or county jails and state prisons. Beginning in Fiscal Year 2023, states were required to submit Death in Custody Reporting Act (DICRA) implementation plans demonstrating their understanding of DICRA reporting requirements and the State’s plan to collect the necessary in-custody death information that is required to be reported. (Bureau of Justice Assistance, U.S. Department of Justice, Death in Custody Reporting Act (DCRA) Data Collection. March 14, 2024) California’s August 2023 Federal DICRA Implementation Plan has been approved. (Id.)

California law requires law enforcement agencies to report in-custody deaths that occur in local or state correctional facilities to the California DOJ within 10 days after the death. Additionally, the agency with custodial responsibility for the person at the time of their death must also post information on their website related to the death within 10 days of the death. If any of the in-custody death related information that the responsible agency is required to post on their website changes, such as manner and means of the death, the agency must update the posting within 30 days of the change. Notably, while responsible agencies are required to update the in-custody death information that is posted on their website, there is no such requirement to affirmatively update the written reports provided to the California DOJ.

This can result in vague and/or inaccurate reporting to the California DOJ. This is most applicable in situations where there is a prolonged death in custody investigation or where the responsible agency does not have all the information that they need to report to the California DOJ within 10 days of the death. In their letter of support, the California DOJ notes that 15-20% of death in custody incidents data within the last five years listed the manner of deaths as ‘pending investigations’ suggesting that law enforcement agencies, in a significant portion of instances, need more than10 days to accurately collect and report the necessary in-custody death information to the California DOJ. This places California’s receipt of federal JAG funding at risk, given that such funding is conditioned on the accurate reporting of state in-custody death information, This also creates the potential for inconsistent information between state and local agencies surrounding in-custody deaths since local agencies must update their in-custody death information on their websites if new information becomes available but this is not the case for the information provided to California DOJ.

Given that responsible law enforcement agencies are already required to update the in-custody death information they post on their websites within 30 days of the date of the death, this bill would make reasonable conforming changes to also require the updating of the in-custody death information that is provided to the DOJ. Ensuring accurate reporting and maintaining receipt of federal JAG funding is critical given the significant increase in-custody deaths across the state in recent years. This bill opts to require the information provided to the DOJ to be updated within 10 days of the date that information changes or new information becomes available, while the current requirement that law enforcement agencies update their websites with newly available in-custody death information only applies within 30 days of any change in information. In order to promote uniform in-custody death updating obligations among law enforcement agencies it may be prudent to align the deadline to update information given to the DOJ with the existing 30 day requirement that applies to information posted on law enforcement agency websites. That being said, a shorter deadline to update the in-custody death information provided to the California DOJ promotes improved public transparency and greater accuracy of the in-custody death information given to the U.S. DOJ.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 6/10/24)

Attorney General Rob Bonta (source)
California Public Defenders Association
Carceral Ecologies
Ella Baker Center for Human Rights

Vera Institute of Justice

OPPOSITION: (Verified 6/10/24)

None received

ARGUMENTS IN SUPPORT:

According to the Attorney General Rob Bonta:

[…] As one of the departments with an implementation role in DICRA reporting, the Criminal Justice Statistics Center (CJSC) at DOJ collects and reports statistical data that allow for valid assessments of crime and the criminal justice process in California. To achieve its mandate, the CJSC maintains several statewide data systems containing specific criminal justice data, which are also available through the Attorney General's Open Justice website, and through annual published reports.

Under DICRA reauthorization via Public Law 113-242, California must report specified death in custody data on a quarterly basis to the U.S. Department of Justice. Additionally, state law requires that law enforcement agencies and correctional facilities report a DICRA incident to the DOJ within the first 10 days after the death (Government Code § 12525). However, Government Code section 12525 does not require DICRA reporting agencies to affirmatively update DOJ in situations where there is an ongoing death in custody investigation. This is problematic because over the last five years, DICRA data on average reflects 15 to 20 percent of the manner of deaths listed as “pending investigation.” While this is not the only data field that is incomplete, it is the most important in understanding death in custody incidents. In some years, these incomplete data fields can represent over 150 pending investigation deaths. DICRA data is also generally the most requested data set at DOJ.

Last but not least, California’s multi-year, federal Edward Byrne Memorial Justice Assistance Grant (JAG) supports critical public safety operations statewide, and is contingent on timely and complete DICRA submissions. However, the State of California is currently at risk of losing its JAG grant funding due to its incomplete DICRA reporting, comprising approximately $19.3 million annually from 2020-23, on average.

This bill would update Government Code section 12525 to require that reporting agencies provide follow-up information to DOJ when it becomes available, aligning DICRA reporting requirements in the Government Code with more recent precedent for reporting agencies enacted in the Penal Code. Making this change will improve the quality of death in custody data for both state and federal reporting requirements, and ensure the state continues to receive federal JAG funding. […]

ASSEMBLY FLOOR: 73-0, 5/2/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Davies, Dixon, Essayli, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Wicks, Wilson, Wood, Zbur

NO VOTE RECORDED: Calderon, Megan Dahle, Flora, Low, Mathis, Weber, Robert Rivas

Prepared by: John Duncan / PUB. S. /

6/11/24 10:01:25

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: AB 3092 Hearing Date: May 28, 2024

Subject: Attorney General: law enforcement agencies: reporting requirements: deaths

HISTORY

Source: Attorney General Rob Bonta

Prior Legislation: AB 2761 (McCarty), Chapter 802, Statutes of 2022

SB 519 (Atkins), Chapter 306, Statutes of 2023

AB 439 (Bauer-Kahan), Chapter 53, Statutes of 2021

AB 242 (Arambula), Chapter 222, Statutes of 2017

AB 1577 (Atkins), Chapter 631, Statutes of 2014

AB 2302 (Burton), Chapter 529, Statutes of 1992

Support: California Public Defenders Association; Carceral Ecologies; Vera Institute of Justice

Opposition: None known

Assembly Floor Vote: 73 - 0

PURPOSE

The purpose of this bill is to require law enforcement agencies or agencies that report a death of a person in their custody to update its written report to the Attorney General within 10 days of when a change within the case occurs or when the new information becomes available.

Existing law provides the public access to meetings of public bodies and the writings of public officials and agencies. (California Constitution Art. I Sec. 3 (b)(7).)

Existing law provides that if a person dies while in the custody of any law enforcement agency or while in custody in a local or state correctional facility in California, the law enforcement agency or the agency in charge of the correctional facility shall report in writing to the DOJ, within 10 days after the death, all facts in the possession of the law enforcement agency or agency in charge of the correctional facility concerning the death. (Gov. Code, § 12525.)

Existing law provides that such in-custody death reports are public records within the meaning of the California Public Records Act and are open to public inspection. (Gov. Code, § 12525.)

Existing law defines “public records” as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Gov. Code § 7920.530)

Existing law asserts that public records are open to inspection at all times during the office ours of state and local agencies and that every person has the right to inspect them, exempted as otherwise provided. (Gov. Code § 7922.525 (a).)

Existing law allows public agencies to also comply with Gov. Code § 7922.525 by posting any public record on its internet website and directing public requests to its website. (Gov. Code § 7922.545.)

Existing law provides that when a person in custody dies, the agency with jurisdiction over the state or local correctional facility with custodial responsibility for the person at the time of their death, shall post the following information on its website for the public to view within 10 days of the date of death.

• The full name of the agency with custodial responsibility at the time of death;
• The county in which the death occurred;
• The facility in which the death occurred, and the location within that facility where the death occurred;
• The race, gender, and age of the decedent;
• The date on which the death occurred;
• The custodial status of the decedent, including, but not limited to, whether the person was awaiting arraignment, awaiting trial, or incarcerated; and
• The manner and means of death. (Pen. Code, § 10008, subds. (a) & (b).)

Existing law does not permit the public disclosure of confidential medical information that may be submitted to the Attorney General as part of the report detailing the death of the person in custody. (Gov. Code, § 12525 (c).)

Existing law requires states receiving funds from the Edward Byrne Memorial Justice Assistant Grant Program and other specified grant programs to report to the U.S. Attorney General on a quarterly basis information regarding the death of any person who is detained, under arrest, in the process of being arrested, is en route to be incarcerated, or is incarcerated at a municipal or county jail, state prison, state-run boot camp prison, boot camp prison that is contracted out by the state, any state or local contract facility, or other local or State correctional facility (including any juvenile facility). This information must include:

• The name, gender, race, ethnicity, and age of the deceased;
• The date, time, and location of death;
• The law enforcement agency that detained, arrested, or was in the process of arresting the deceased; and
• A brief description of the circumstances surrounding the death. (34 U.S.C. § 60105, subs. (a) & (b).)

This bill requires law enforcement agencies or agencies in charge of correctional facilities that must submit in-custody death information to the DOJ within 10 days after the death, to update their initial written report to the DOJ if any of the previously provided information changes or if new information becomes available regarding the death, such as the manner and means of the death.

This bill requires the update to be made within 10 days of the date that the in-custody death information that was previously provided changes or the date new information becomes available.

This bill asserts that making information concerning the death of a person while in custody available to the Attorney General is in the public interest and furthers the purposes of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution.

COMMENTS

1. Need for This Bill

According to the Author:

AB 3092 seeks to update current law by requiring DICRA reporting agencies provide follow-up death in custody information to the DOJ when it becomes available. This is crucial to maintain funding from the federal Edward Byrne Memorial Justice Assistance Grant (JAG), which provides states, tribes, and local governments with critical funding necessary to support a range of program areas including law enforcement, prosecution, indigent defense, courts, crime prevention and education. The bill addresses this issue by aligning DICRA reporting requirements in the Government Code with more recent precedent for reporting agencies enacted in the Penal Code. By enacting this change, it will improve the quality of death in custody data for both state and federal reporting requirements, and ensure that California continues to receive federal JAG funding.

1. California’s High Jail Death Rate

Between 2006 and 2020, 185 people died in San Diego County jails – one of the highest totals among counties in the State. In February 2022, the State Auditor’s Office released the results of an audit of the San Diego County Sheriff’s Department – which oversees the jails – to determine the reasons for in-custody deaths and identify the steps the department took to address the deaths. The 126-page audit reached two overarching conclusions: 1) The San Diego County Sheriff’s Department did not take sufficient steps to prevent the high number of deaths in its jails, and 2) neither the Sheriff’s Department no the Citizens Law Enforcement Review Board (CLERB)^[1] has taken adequate action in response to the deaths of incarcerated individuals.^[2] The audit also cited issues with legislation that allowed the Sheriff’s Department to not ensure inmate safety, implying that similar problems may exist statewide. The report claimed that deficiencies within the Sherriff’s Department are a result of “statewide corrections standards that are insufficient for maintaining the safety of incarcerated individuals”^[3] (California State Auditor’s Office 2022). Since 2005, over 2,700 people have died while under the custody of California county jails^[4], and despite jail populations being lower, deaths have reached record rates in the past few years.

Coverage surrounding jail deaths has also increased with many news outlets covering the rise of deaths and lack of sufficient action by the legislature. A recent CalMatters article^[5] analyzed how despite jail populations decreasing, jail deaths continue to remain at high levels. Past reporting by McClatchy and ProPublica^[6] revealed how state inspections of jails documented many violations but faced resistance from sheriffs who disagreed with the state’s findings. This bill seeks to maintain current information for oversight purposes surrounding deaths of people under custody.

1. Current Reporting of Deaths While Under Custody

Federal law requires states receiving grant funding from the Edward Byrne Memorial Justice Assistant Grant (JAG) to make quarterly reports to the U.S. DOJ regarding the death of persons detained, under arrest, or incarcerated in municipal or county jails and state prisons. Beginning in Fiscal Year 2023, states were required to submit Death in Custody Reporting Act (DICRA) implementation plans demonstrating their understanding of DICRA reporting requirements and the State’s plan to collect the necessary in-custody death information that is required to be reported. (Bureau of Justice Assistance, U.S. Department of Justice, Death in Custody Reporting Act (DCRA) Data Collection. (March 14, 2024). Available at <https://bja.ojp.gov/program/dcra/state-implementation-plans> [as of March 26, 2024].) California’s August 2023 Federal DICRA Implementation Plan has been approved. (Id.)

California law requires law enforcement agencies to report in-custody deaths that occur in local or state correctional facilities to the California DOJ within 10 days after the death. Additionally, the agency with custodial responsibility for the person at the time of their death must also post information on their website related to the death within 10 days of the death. If any of the in-custody death related information that the responsible agency is required to post on their website changes, such as manner and means of the death, the agency must update the posting within 30 days of the change. Notably, while responsible agencies are required to update the in-custody death information that is posted on their website, there is no such requirement to affirmatively update the written reports provided to the California DOJ.

This can result in vague and/or inaccurate reporting to the California DOJ. This is most applicable in situations where there is a prolonged death in custody investigation or where the responsible agency does not have all the information that they need to report to the California DOJ within 10 days of the death. In their letter of support, the California DOJ notes that 15-20% of death in custody incidents data within the last five years listed the manner of deaths as ‘pending investigations’ suggesting that law enforcement agencies, in a significant portion of instances, need more than10 days to accurately collect and report the necessary in-custody death information to the California DOJ. This places California’s receipt of federal JAG funding at risk, given that such funding is conditioned on the accurate reporting of state in-custody death information, This also creates the potential for inconsistent information between state and local agencies surrounding in-custody deaths since local agencies must update their in-custody death information on their websites if new information becomes available but this is not the case for the information provided to California DOJ.

Given that responsible law enforcement agencies are already required to update the in-custody death information they post on their websites within 30 days of the date of the death, this bill would make reasonable conforming changes to also require the updating of the in-custody death information that is provided to the DOJ. Ensuring accurate reporting and maintaining receipt of federal JAG funding is critical given the significant increase in-custody deaths across the state in recent years. This bill opts to require the information provided to the DOJ to be updated within 10 days of the date that information changes or new information becomes available, while the current requirement that law enforcement agencies update their websites with newly available in-custody death information only applies within 30 days of any change in information. In order to promote uniform in-custody death updating obligations among law enforcement agencies it may be prudent to align the deadline to update information given to the DOJ with the existing 30 day requirement that applies to information posted on law enforcement agency websites. That being said, a shorter deadline to update the in-custody death information provided to the California DOJ promotes improved public transparency and greater accuracy of the in-custody death information given to the U.S. DOJ.

1. Argument in Support

According to the Attorney General Rob Bonta:

[…] As one of the departments with an implementation role in DICRA reporting, the Criminal Justice Statistics Center (CJSC) at DOJ collects and reports statistical data that allow for valid assessments of crime and the criminal justice process in California. To achieve its mandate, the CJSC maintains several statewide data systems containing specific criminal justice data, which are also available through the Attorney General's Open Justice website, and through annual published reports.

Under DICRA reauthorization via Public Law 113-242, California must report specified death in custody data on a quarterly basis to the U.S. Department of Justice. Additionally, state law requires that law enforcement agencies and correctional facilities report a DICRA incident to the DOJ within the first 10 days after the death (Government Code § 12525). However, Government Code section 12525 does not require DICRA reporting agencies to affirmatively update DOJ in situations where there is an ongoing death in custody investigation. This is problematic because over the last five years, DICRA data on average reflects 15 to 20 percent of the manner of deaths listed as “pending investigation.” While this is not the only data field that is incomplete, it is the most important in understanding death in custody incidents. In some years, these incomplete data fields can represent over 150 pending investigation deaths. DICRA data is also generally the most requested data set at DOJ.

Last but not least, California’s multi-year, federal Edward Byrne Memorial Justice Assistance Grant (JAG) supports critical public safety operations statewide, and is contingent on timely and complete DICRA submissions. However, the State of California is currently at risk of losing its JAG grant funding due to its incomplete DICRA reporting, comprising approximately $19.3 million annually from 2020-23, on average.

AB 3092 would update Government Code section 12525 to require that reporting agencies provide follow-up information to DOJ when it becomes available, aligning DICRA reporting requirements in the Government Code with more recent precedent for reporting agencies enacted in the Penal Code. Making this change will improve the quality of death in custody data for both state and federal reporting requirements, and ensure the state continues to receive federal JAG funding. […]

-- END –

1. CLERB is a citizen-governed board approved by San Diego County voters in 1990 which is responsible for reviewing complaints of misconduct and investigating deaths arising in connection with the actions of officers employed by the Sheriff’s Department or Probation Department. ↑

2. “San Diego County Sheriff’s Department – It Has Failed to Adequately Prevent and Respond to the Deaths of Individuals in Its Custody.” California State Auditor, Report 2021-109. 3 February 2022. http://www.auditor.ca.gov/reports/2021-109/index.html ↑

3. "Report on the California State Auditor Website." California State Auditor, https://information.auditor.ca.gov/reports/2021-109/index.html. ↑

4. "OpenJustice Data." OpenJustice, California Department of Justice, openjustice.doj.ca.gov/data. ↑

5. "California jails are holding thousands fewer people, but far more are dying in them." Calmatters, 2024, calmatters.org/justice/2024/03/death-in-california-jails/?utm_medium=email&utm_source=ActiveCampaign&utm_medium=email&utm_content=Did%20Tulare%20County%20find%20a%20way%20to%20reduce%20California%20jail%20deaths%3F&utm_campaign=WhatMatters. ↑

6. "California's Jails Are in a Deadly Crisis. Here’s How Experts Suggest Fixing Them." ProPublica, https://www.propublica.org/article/californias-jails-are-in-a-deadly-crisis-heres-how-experts-suggest-fixing-them. ↑

Date of Hearing: April 24, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 3092

Author:(Ortega) – As Introduced Ver:February 16, 2024

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill requires a law enforcement agency or agency in charge of a correctional facility (“applicable agency”) to update the information the agency initially provided to the Department of Justice (DOJ) about a person who dies in the agency’s custody, if updated information becomes available.

FISCAL EFFECT:

1. Likely minor costs (General Fund) to the California Department of Corrections and Rehabilitation (CDCR) to provide updated death-in-custody information to DOJ.
2. Likely non-reimbursable costs to local law enforcement agencies to provide updated death-in-custody information to DOJ. Proposition 42 (2014) requires all local governments to comply with the Public Records Act (PRA) and eliminated state reimbursement to local agencies for costs of complying with the PRA. The bill specifies that no reimbursement is required because the duties imposed are in furtherance of the PRA.

COMMENTS:

1. Purpose. According to the author:

AB 3092 seeks to update current law by requiring DICRA [Death in Custody Reporting Act] reporting agencies provide follow-up death in custody information to the DOJ when it becomes available. This is crucial to maintain funding from the federal Edward Byrne Memorial Justice Assistance Grant (JAG), which provides states, tribes, and local governments with critical funding necessary to support a range of program areas including law enforcement, prosecution, indigent defense, courts, crime prevention and education The bill addresses this issue by aligning DICRA reporting requirements in the Government Code with more recent precedent for reporting agencies enacted in the Penal Code. By enacting this change, it will improve the quality of death in custody data for both state and federal reporting requirements, and ensure that California continues to receive federal JAG funding.

1. Background. Existing law requires an applicable agency to report to DOJ about anyone who dies while in the agency’s custody. For example, if a person dies in a county jail or a state prison, the agency in charge of the facility must report all facts in its possession concerning the death to DOJ within 10 days after the death. Records related to deaths that occur in custody are public records that are subject to disclosure to the public under the PRA, except for confidential medical records. In addition to reporting to DOJ, an applicable agency is required to post specified information about a death-in-custody incident on its website within 10 days of the incident. If any of the information posted on its website changes (for example, if new information about the cause of death is discovered during an investigation), the agency must update its website within 30 days of when the information changes.

This bill requires an applicable agency to update the information it initially provided to DOJ about a death-in-custody incident if new information becomes available. An applicable agency must report updated information to DOJ within 10 days of when the new information becomes available. This change will provide DOJ with more up-to-date information about deaths that occur in custody, which will help ensure California remains eligible for federal grant funding that is contingent on death in custody reporting. Since applicable agencies are already required by law to update their websites with newly discovered information about each death-in-custody incident, it is unlikely that this bill’s additional reporting requirements will add much workload to those agencies.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: April 9, 2024

ASSEMBLY COMMITTEE ON JUDICIARY

Ash Kalra, Chair

ABPCA Bill Id:AB 3092

Author:(Ortega) – As Introduced Ver:February 16, 2024

PROPOSED CONSENT

SUBJECT: Attorney General: law enforcement agencies: reporting requirements: deaths

KEY ISSUE: SHOULD A LAW ENFORCEMENT AGENCY BE REQUIRED TO NOTIFY THE CALIFORNIA DOJ WITHIN TEN DAYS ABOUT A CHANGE IN INFORMATION THEY PREVIOUSLY REPORTED TO THE DOJ ABOUT AN IN-CUSTODY DEATH, OR WHEN NEW INFORMATION BECOMES AVAILABLE; AND SHOULD THE NEW INFORMATION BE PUBLIC?

SYNOPSIS

Federal law requires states that receive grant funding from the Edward Byrne Memorial Justice Assistant Grant (JAG) to make quarterly reports to the U.S. DOJ regarding the death of persons detained, under arrest, or incarcerated in municipal or county jails and state prisons. California law requires law enforcement agencies to report in-custody deaths that occur in local or state correctional facilities to the California DOJ within 10 days after the death. But the law does not require a law enforcement agency to update the information it provides to the California DOJ. As a result of the inadequate reporting requirements of state law, the California DOJ likely does not have complete information about in-custody deaths that occur in the state. The California DOJ confirms this, noting in its letter of sponsorship that 15-20% of all in custody incidents reported within the last five years listed the manner of deaths as “pending investigations.” The fact that a significant number of investigations remain open could place California’s receipt of federal JAG funding at risk, given that such funding is conditioned on the accurate reporting of state in-custody death information to the federal government. Furthermore, policy makers, the press, and the public lack complete and accurate information about how and why in-custody deaths are occurring in the state.

This bill requires the information to be updated within 10 days of the date when that information changes or new information becomes available. This requirement to update the in-custody death information provided to the California DOJ promotes improved public transparency and greater accuracy of the in-custody death information given to the U.S. DOJ. Most relevant to the jurisdiction of this Committee, the bill clarifies that the newly reported information—like the information required to be reported under existing law—is public information that is subject to disclosure upon request.

The bill, sponsored by Attorney General Bonta, recently was unanimously approved by the Assembly Committee on Public Safety. It is supported by the California Public Defenders Association, Carceral Ecologies, and Vera Institute of Justice and has no opposition on file.

SUMMARY: Requires a law enforcement agency to notify the California DOJ within ten days any of the information regarding an in-custody death previously reported to the DOJ changes, or if new information becomes available; and clarifies that the new information is open to the public. Specifically, this bill:

1. Provides that if any of the information provided by a law enforcement agency about an in-custody death changes or if new information becomes available regarding the death, including, but not limited to, the manner and means of death, the law enforcement agency or agency in charge of the correctional facility shall update its written report to the Attorney General within 10 days of the date of change or the date the new information becomes available.
2. Clarifies that the writings provided pursuant to existing law, as well as the expansion to existing law proposed by the bill, are public records; but that disclosure of confidential medical information that may have been submitted to the Attorney General’s office in conjunction with the report except as provided in Part 2.6 (commencing with Section 56) of Division 1 of the Civil Code shall not be disclosed.

EXISTING LAW:

1. Requires, pursuant to federal law, states that receive funds from the Edward Byrne Memorial Justice Assistant Grant Program and other specified grant programs to report to the U.S. Attorney General on a quarterly basis information regarding the death of any person who is detained, under arrest, in the process of being arrested, is en route to be incarcerated, or is incarcerated at any state or local correctional facility (including any juvenile facility) the following information:
   1. The name, gender, race, ethnicity, and age of the deceased;
   2. The date, time, and location of death;
   3. The law enforcement agency that detained, arrested, or was in the process of arresting the deceased; and
   4. A brief description of the circumstances surrounding the death. (34 U.S.C. 60105 (a) - (b).)
2. Provides that the people have the right of access to information concerning the conduct of the people’s business and, therefore, the writings of public officials and agencies shall be open to public scrutiny. Specifies that any law or rule that limits the public right of access shall be adopted with findings demonstrating the interest protected by the limitation. (California Constitution, art. I, Section 3.)
3. Provides that, in enacting the California Public Records Act (CPRA), the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Government Code Section 7921.000.)
4. Defines “public records” to include any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics and those in the custody of, or maintained by, the Governor’s office means any writing prepared on or after January 6, 1975. (Government Code Section 7920.530.)
5. Provides that public records are open to inspection at all times during the office hours of a state or local agency and every person has a right to inspect any public record, exempted as otherwise provided; and that any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law. (Government Code Section 7922.525.)
6. Provides that if a person dies while in the custody of any law enforcement agency or while in custody in a local or state correctional facility in California, the law enforcement agency or the agency in charge of the correctional facility shall report in writing to the DOJ, within 10 days after the death, all facts in the possession of the law enforcement agency or agency in charge of the correctional facility concerning the death. (Government Code Section 12525.)
7. Provides that any record relating to an investigation conducted by the local detention facility involving a death incident maintained by a local detention facility shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code). (Penal Code Section 832.10 (b).)
8. Clarifies that records disclosed under 7) shall include all investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; all materials compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against a person, whether the person’s action was consistent with law and agency policy for purposes of discipline or administrative action, or what discipline to impose or corrective action to take; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the death incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action. (Id., at (c)(1).)
9. Allows an agency to redact a record disclosed pursuant to 7) only for any of the following purposes:
10. To remove personal data or information, such as a home address, telephone number, or identities of family members, other than the people’s names and work-related information.
11. To preserve the anonymity of whistleblowers, complainants, victims, and witnesses.
12. To protect confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about possible misconduct.
13. Where there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of any person.
14. Where, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information. (Id., at (c)(2), (3).)
15. Provides that when a person in custody dies, the agency with jurisdiction over the state or local correctional facility with custodial responsibility for the person at the time of their death, shall post the following information on its website for the public to view within 10 days of the date of death.
    1. The full name of the agency with custodial responsibility at the time of death.
    2. The county in which the death occurred.
    3. The facility in which the death occurred, and the location within that facility where the death occurred.
    4. The race, gender, and age of the decedent.
    5. The date on which the death occurred.
    6. The custodial status of the decedent, including, but not limited to, whether the person was awaiting arraignment, awaiting trial, or incarcerated; and
    7. The manner and means of death. (Penal Code Section 10008 (a), (b).)
16. Provides that if any of the death related information that the responsible state or local agency is required to post on their website changes, such as manner and means of the death, the agency must update the posting within 30 days of the change. (Penal Code Section 10008 (b).)
17. States that if the responsible agency seeks to notify the next of kin and is unable to notify them within 10 days of the death, the agency shall be given an additional 10 days to make good faith efforts to notify the next of kin before the information shall be posted for the public to view on the agency’s internet website. (Penal Code Section 10008 (b).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: This bill, sponsored by Attorney General Rob Bonta, modestly expands the scope of information that is required to be reported by a law enforcement agency to the California DOJ when a person dies while in the custody of any law enforcement agency or while in custody in a local or state correctional facility in California. According to the author:

AB 3092 aims to address incomplete Death in Custody Reporting Act (DICRA) data submissions by the State of California. . . . AB 3092 seeks to update current law by requiring DICRA reporting agencies [to] provide follow-up death in custody information to DOJ when it becomes available. . . . By enacting this change, it will improve the quality of death in custody data for both state and federal reporting requirements, and ensure the state continues to receive federal JAG funding.

Federal reporting requirements regarding deaths that occur in the custody of law enforcement and corrections. Federal law requires states that receive grant funding from the Edward Byrne Memorial Justice Assistant Grant (JAG) to make quarterly reports to the U.S. DOJ regarding the death of persons detained, under arrest, or incarcerated in municipal or county jails and state prisons. As of July 2023, states are required to submit Death in Custody Reporting Act (DICRA) implementation plans demonstrating their understanding of DICRA reporting requirements and the State’s plan to collect the necessary in-custody death information that is required to be reported. (Bureau of Justice Assistance, U.S. Department of Justice, Death in Custody Reporting Act (DCRA) Data Collection. (March 14, 2024). Available at <https://bja.ojp.gov/program/dcra/state-implementation-plans> [as of March 26, 2024].) California’s August 2023 Federal DICRA Implementation Plan has been approved. (Ibid.)

State reporting requirements regarding deaths that occur in the custody of law enforcement and corrections. California law requires law enforcement agencies to report in-custody deaths that occur in local or state correctional facilities to the California DOJ within 10 days after the death. Existing law, as a result of AB 2761 (McCarty), Chapter 802, Statutes of 2022, requires a state or local correctional facility to post specified information on its website within 10 days after the death of a person who died while in custody, and to update that information within 30 days of any change. But the law does not require a law enforcement agency to update the information it provides to the California DOJ. So while responsible agencies are required to update the in-custody death information posted on their website, they are not required to affirmatively update the written reports that they are required to send to the California DOJ.

As a result of the inadequate reporting requirements of state law, the California DOJ likely does not have complete information about in-custody deaths that occur in the state. Investigations of most in-custody deaths presumably are not complete within ten days of the date of the death. Therefore, if an agency reports within the ten-day period, they likely are only informing DOJ that their investigation is ongoing or open. The California DOJ confirms this, noting in its letter of sponsorship that 15-20% of all in custody incidents reported within the last five years listed the manner of deaths as “pending investigations.” The California DOJ provided the Committee with the following chart showing the numbers of investigations that have been reported to DOJ in the past seven years and the percent that are still pending:

The fact that a significant number of investigations remain open could place California’s receipt of federal JAG funding at risk, given that such funding is conditioned on the accurate reporting of state in-custody death information to the federal government. Furthermore, policy makers, the press, and the public lack complete and accurate information about how and why in-custody deaths are occurring in the state. Inconsistent reporting requirements may lead to inconsistent information between state and local agencies surrounding in-custody deaths, given that local agencies must update their in-custody death information on their websites when new information becomes available, but are not required to update the information they provided to the California DOJ.

This gap in data that is required to be reported to the California DOJ led the Public Policy Institute of California to recommend that “the state should consider mandating that all agencies update the Deaths in Custody data after an investigation is complete.” This bill indirectly seems to do so, requiring the California DOJ to be notified, “if any of the information provided by a law enforcement agency about an in-custody death changes or if new information becomes available regarding the death.” (Person, et al. “Police Use of Force and Misconduct in California.” Public Policy Institute of California, Public Policy Institute of California, 9 Jan. 2024, www.ppic.org/publication/police-use-of-force-and-misconduct-in-california/.) As the bill moves forward, the author may wish to explicitly require that a law enforcement agency notify the California DOJ when their investigation of an in-custody death is complete.

Records about deaths that occur in the custody of law enforcement and corrections, subject to the California Public Records Act. Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Government Code Section 7921.000.) Under the California Public Records Act (CPRA), public records are open to inspection at all times during the office hours of a public agency for inspection by the public, unless exempted. (Government Code Section 7922.525.) A public record is defined as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any public agency regardless of physical form or characteristics. (Government Code Section 7920.530.)

The transparency mandates of the CPRA for public records in general has been further bolstered by numerous legislative measures, mandating public disclosure of law enforcement and correctional records relating to in-custody deaths, that have become law in recent years, including the following:

• AB 2302 (Burton), Chapter 529, Statutes of 1992, establishes that records regarding in-custody deaths provided by law enforcement agencies to the California DOJ are public records under the CPRA.
• AB 2761 (McCarty), Chapter 802, Statutes of 2022, requires a state or local correctional facility to post specified information on its website within 10 days after the death of a person who died while in custody, and to update that information within 30 days of any change. (See 10) – 12) of EXISTING LAW, above.)
• Most recently, SB 519 (Atkins), Chap. 306, Statutes of 2023, specifies that records relating to an investigation conducted by a local detention facility involving a death incident maintained by a local detention facility shall not be confidential and shall be made available for public inspection pursuant to the CPRA. (See 7) – 9) of EXISTING LAW, above.)

The bill requires the information to be updated within 10 days of the date when that information changes or new information becomes available. Given that law enforcement agencies are already required to update the in-custody death information they post on their websites within 30 days of the date of the death, this bill would make reasonable conforming changes to require agencies to update the in-custody death information that they are required to send to the California DOJ. The bill’s requirement to update the in-custody death information provided to the California DOJ promotes improved public transparency and greater accuracy of the in-custody death information given to the U.S. DOJ.

Most relevant to the jurisdiction of this Committee, the bill clarifies that the newly reported information—like the information required to be reported under existing law—is public information that is subject to disclosure upon request.

ARGUMENTS IN SUPPORT: Sponsor Attorney General Rob Bonta writes the following in support of the bill:

. . .California’s multi-year, federal Edward Byrne Memorial Justice Assistance Grant (JAG) supports critical public safety operations statewide, and is contingent on timely and complete DICRA submissions. However, the State of California is currently at risk of losing its JAG grant funding due to its incomplete DICRA reporting, comprising approximately $19.3 million annually from 2020-23, on average.

AB 3092 would update Government Code section 12525 to require that reporting agencies provide follow-up information to DOJ when it becomes available, aligning DICRA reporting requirements in the Government Code with more recent precedent for reporting agencies enacted in the Penal Code. Making this change will improve the quality of death in custody data for both state and federal reporting requirements, and ensure the state continues to receive federal JAG funding.

REGISTERED SUPPORT / OPPOSITION:

Support

Attorney General Rob Bonta
California Public Defenders Association
Carceral Ecologies
Vera Institute of Justice

Opposition

None on file

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334

Date of Hearing:

Counsel: Ilan Zur

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

ABPCA Bill Id:AB 3092

Author:(Ortega) – As Introduced Ver:February 16, 2024

SUMMARY:

Provides that law enforcement agencies required to report in-custody death information to the California Attorney General (DOJ) must update that report within 10 days in certain circumstances. Specifically, this bill:

1. Requires law enforcement agencies or agencies in charge of correctional facilities that must submit in-custody death information to the DOJ within 10 days after the death, to update their initial written report to the DOJ if any of the previously provided information changes or if new information becomes available regarding the death, such as the manner and means of the death.
   
2. Requires this update to be made within 10 days of the date that the in-custody death information that was previously provided changes or the date new information becomes available.

EXISTING FEDERAL LAW:

1. Requires states receiving funds from the Edward Byrne Memorial Justice Assistant Grant Program and other specified grant programs to report to the U.S. Attorney General on a quarterly basis information regarding the death of any person who is detained, under arrest, in the process of being arrested, is en route to be incarcerated, or is incarcerated at a municipal or county jail, state prison, state-run boot camp prison, boot camp prison that is contracted out by the state, any state or local contract facility, or other local or State correctional facility (including any juvenile facility). This information must include:
   
   1. The name, gender, race, ethnicity, and age of the deceased;
      
   2. The date, time, and location of death;
      
   3. The law enforcement agency that detained, arrested, or was in the process of arresting the deceased; and
      
   4. A brief description of the circumstances surrounding the death. (34 U.S.C. § 60105, subs. (a) & (b).)

EXISTING STATE LAW

1. Provides that if a person dies while in the custody of any law enforcement agency or while in custody in a local or state correctional facility in California, the law enforcement agency or the agency in charge of the correctional facility shall report in writing to the DOJ, within 10 days after the death, all facts in the possession of the law enforcement agency or agency in charge of the correctional facility concerning the death. (Gov. Code, § 12525.)
2. Provides that such in-custody death reports are public records within the meaning of the California Public Records Act and are open to public inspection. (Gov. Code, § 12525.)
   
3. Provides that when a person in custody dies, the agency with jurisdiction over the state or local correctional facility with custodial responsibility for the person at the time of their death, shall post the following information on its website for the public to view within 10 days of the date of death.
   1. The full name of the agency with custodial responsibility at the time of death;
      
   2. The county in which the death occurred;
      
   3. The facility in which the death occurred, and the location within that facility where the death occurred;
      
   4. The race, gender, and age of the decedent;
      
   5. The date on which the death occurred;
      
   6. The custodial status of the decedent, including, but not limited to, whether the person was awaiting arraignment, awaiting trial, or incarcerated; and
   7. The manner and means of death. (Pen. Code, § 10008, subds. (a) & (b).)
4. Provides that if any of the death related information that the responsible state or local agency is required to post on their website changes, such as manner and means of the death, the agency must update the posting within 30 days of the change. (Pen. Code, § 10008, subd. (b).)
5. States that if the responsible agency seeks to notify the next of kin and is unable to notify them within 10 days of the death, the agency shall be given an additional 10 days to make good faith efforts to notify the next of kin before the information shall be posted for the public to view on the agency’s internet website. (Pen. Code, § 10008, subd. (b).)
   
6. Requires each law enforcement agency to report to the DOJ on a monthly basis all instances when a peace officer employed by that agency is involved in specified incidents, including an incident involving the shooting of a civilian by a peace officer, the shooting of a peace officer by a civilian, the use of force by a peace officer against a civilian that results in serious bodily injury or death, and use of force by a civilian against a peace officer that results in serious bodily injury or death. (Gov. Code, § 12525.2, subd. (a).)
   
7. Requires every death to be registered with the local registrar of births and deaths in the district in which the death was officially pronounced or the body was found, within 8 calendar days after death and prior to any disposition of the human remains. (Health & Saf. Code, § 102775.)
8. Requires a certificate of death to include items necessary to establish the fact of death, including:
   
   1. Personal data of the decedent;
      
   2. The decedent’s gender identity, which shall be recorded as female, male, or nonbinary;
      
   3. Date of death;
      
   4. Place of death;
      
   5. The current first and middle names, birth last names, and the birthplaces of the parents, without reference to the parent’s gendered relationship to the decedent;
      
   6. Informant;
      
   7. Information related to the disposition of body, including information regarding the embalmer, funeral director, attending physician, date and place of interment or removal, and the date accepted for registration and signature of local registrar;
      
   8. Information relating to medical and health data, including the disease or conditions leading directly to death and antecedent causes, operations and major findings, accident and injury information, and information indicating whether the decedent was pregnant at the time of death, or within a year prior to the death if known. (Health & Saf. Code, § 102875, subds. (a) & (b).)
9. Provides that a funeral director or person acting in their place shall prepare the certificate of death and register it with the local registrar, and shall obtain the required information, other than medical and health section data, from the person or source best qualified to supply this information. (Health & Saf. Code, §§ 102780, 102790.)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "AB 3092 seeks to update current law by requiring DICRA [Death in Custody Reporting Act] reporting agencies provide follow-up death in custody information to the DOJ when it becomes available. This is crucial to maintain funding from the federal Edward Byrne Memorial Justice Assistance Grant (JAG), which provides states, tribes, and local governments with critical funding necessary to support a range of program areas including law enforcement, prosecution, indigent defense, courts, crime prevention and education The bill addresses this issue by aligning DICRA reporting requirements in the Government Code with more recent precedent for reporting agencies enacted in the Penal Code. By enacting this change, it will improve the quality of death in custody data for both state and federal reporting requirements, and ensure that California continues to receive federal JAG funding.”
   
2. Background: Incarcerated persons are dying in county jails at record rates in California. According to the Department of Justice, “Since the passage of Public Safety Realignment in 2011 - which mandated that individuals sentenced for specific non-violent offenses be housed in county jails rather than state prisons - the share of deaths in custody reported from county sheriff's departments (who manage county jail systems) has grown from 17.1 percent in 2010 to 22.2 percent in 2014….” (Department of Justice, Death in Custody from 2010 to 2019. (July 5, 2023). Available at: <https://openjustice.doj.ca.gov/data-stories/2019/death-custody-2010-2019> [as of March 26, 20240.) The percentage of county jail deaths rose to 20.6 percent in 2019. (Id.) Notably, between 2006 and 2020, 185 people died in San Diego County jails – one of the highest totals among counties in the State. (California State Auditor, Report 2021-109, San Diego County Sheriff’s Department – It Has Failed to Adequately Prevent and Respond to the Deaths of Individuals in Its Custody. (Feb. 3, 2022). Available at: <https://www.auditor.ca.gov/reports/2021-109/index.html> [as of March 26, 2024].) In 2022, 215 persons died in California jails, a record high considering data going back to 2005. (Duara and Kimelman, California jails are holding thousands fewer people, but far more are dying in them. (March 25, 2024). Available at <https://calmatters.org/justice/2024/03/death-in-california-jails/> [as of March 26, 2024].)
3. Need for This Bill: Federal law requires states receiving grant funding from the Edward Byrne Memorial Justice Assistant Grant (JAG) to make quarterly reports to the U.S. DOJ regarding the death of persons detained, under arrest, or incarcerated in municipal or county jails and state prisons. Beginning in Fiscal Year 2023, states were required to submit Death in Custody Reporting Act (DICRA) implementation plans demonstrating their understanding of DICRA reporting requirements and the State’s plan to collect the necessary in-custody death information that is required to be reported. (Bureau of Justice Assistance, U.S. Department of Justice, Death in Custody Reporting Act (DCRA) Data Collection. (March 14, 2024). Available at <https://bja.ojp.gov/program/dcra/state-implementation-plans> [as of March 26, 2024].) California’s August 2023 Federal DICRA Implementation Plan has been approved. (Id.)

California law requires law enforcement agencies to report in-custody deaths that occur in local or state correctional facilities to the California DOJ within 10 days after the death. Additionally, the agency with custodial responsibility for the person at the time of their death must also post information on their website related to the death within 10 days of the death. If any of the in-custody death related information that the responsible agency is required to post on their website changes, such as manner and means of the death, the agency must update the posting within 30 days of the change. Notably, while responsible agencies are required to update the in-custody death information that is posted on their website, there is no such requirement to affirmatively update the written reports provided to the California DOJ.

This can result in vague and/or inaccurate reporting to the California DOJ. This is most applicable in situations where there is a prolonged death in custody investigation or where the responsible agency does not have all the information that they need to report to the California DOJ within 10 days of the death. In their letter of support, the California DOJ notes that 15-20% of death in custody incidents data within the last five years listed the manner of deaths as ‘pending investigations’ suggesting that law enforcement agencies, in a significant portion of instances, need more than10 days to accurately collect and report the necessary in-custody death information to the California DOJ. This places California’s receipt of federal JAG funding at risk, given that such funding is conditioned on the accurate reporting of state in-custody death information, This also creates the potential for inconsistent information between state and local agencies surrounding in-custody deaths since local agencies must update their in-custody death information on their websites if new information becomes available but this is not the case for the information provided to California DOJ.

Given that responsible law enforcement agencies are already required to update the in-custody death information they post on their websites within 30 days of the date of the death, this bill would make reasonable conforming changes to also require the updating of the in-custody death information that is provided to the DOJ. Ensuring accurate reporting and maintaining receipt of federal JAG funding is critical given the significant increase in-custody deaths across the state in recent years. This bill opts to require the information provided to the DOJ to be updated within 10 days of the date that information changes or new information becomes available, while the current requirement that law enforcement agencies update their websites with newly available in-custody death information only applies within 30 days of any change in information. In order to promote uniform in-custody death updating obligations among law enforcement agencies it may be prudent to align the deadline to update information given to the DOJ with the existing 30 day requirement that applies to information posted on law enforcement agency websites. That being said, a shorter deadline to update the in-custody death information provided to the California DOJ promotes improved public transparency and greater accuracy of the in-custody death information given to the U.S. DOJ.

1. Argument in Support: According to AB 3092’s sponsor, the California Office of the Attorney General, state law “does not require [Death in Custody Reporting Act] reporting agencies to affirmatively update DOJ in situations where there is an ongoing death in custody investigation. This is problematic because over the last five years, DICRA data on average reflects 15 to 20 percent of the manner of deaths listed as “pending investigation.” While this is not the only data field that is incomplete, it is the most important in understanding death in custody incidents… AB 3092 would update Government Code section 12525 to require that reporting agencies provide follow-up information to DOJ when it becomes available, aligning DICRA reporting requirements in the Government Code with more recent precedent for reporting agencies enacted in the Penal Code. Making this change will improve the quality of death in custody data for both state and federal reporting requirements, and ensure the state continues to receive federal [Justice Assistance Grant] funding.”
   
2. Argument in Opposition: None.
   
3. Related Legislation: AB 2531 (Bryan), would require law enforcement agencies reporting in-custody death information on their website, to include information on when a juvenile in custody dies, and to include the date of their death. AB 2531 is pending in this committee.
   
4. Prior Legislation:
   
   1. SB 519 (Atkins), Chapter 306, Statutes of 2023, makes records relating to an investigation conducted by a local detention facility into a death incident available to the public and creates the position of Director of In-Custody Death Review within the Board of State and Community Corrections to review investigations of any death incident, as defined, occurring within a local detention facility.
   2. AB 2761 (McCarty), Chapter 802, Statutes of 2022, requires a state or local correctional facility to post specified information on its website within 10 days after the death of a person who died while in custody, and to update that information within 30 days of any change.
      
   3. AB 439 (Bauer-Kahan), Chapter 53, Statutes of 2021, specifies that gender identity includes female, male, or nonbinary for purposes of completing a death certificate.
   4. AB 242 (Arambula), Chapter 222, Statutes of 2017, requires a certificate of death to indicate whether the deceased person was a member of the Armed Forces so that the Department of Public Health may compile data on veteran suicides.
      
   5. AB 1577 (Atkins), Chapter 631, Statutes of 2014, requires a person completing a death certificate to record the decedent’s sex reflecting the decedent’s gender identity as reported by the person or source best qualified to supply this information, unless presented with specified legal documents identifying the decedent's gender.
   6. AB 2302 (Burton), Chapter 529, Statutes of 1992, established records regarding in-custody deaths provided by law enforcement agencies to the California DOJ as public records under the California Public Records Act.

REGISTERED SUPPORT / OPPOSITION:

Support

Attorney General Rob Bonta (Sponsor)
California Public Defenders Association
Carceral Ecologies
Vera Institute of Justice

Opposition:

None

Analysis Prepared by:

Ilan Zur / PUB. S. / (916) 319-3744