How does ICE define a death in custody and how has that definition changed over time?
Executive summary
ICE currently treats a “death in custody” as any death that occurs while an individual is detained under ICE authority and triggers internal notification, medical review and a public Detainee Death Report under a policy adopted in 2021 and congressional reporting rules enacted in 2018 [1]. Over time that official definition and the rules for reporting have been supplemented by reforms, inspector‑general reviews and outside challenges from advocates and researchers who say ICE’s counting and investigative practices have at times narrowed or obscured which deaths are treated as in‑custody [1] [2] [3] [4].
1. The current formal definition and reporting rules: ICE’s 2021 policy and the 2018 congressional trigger
ICE’s publicly stated procedure—Notification, Review, and Reporting Requirements for Detainee Deaths—requires facility directors to report any detainee death within 12 hours and mandates medical reviews, oversight investigations and publication of individual death reports in compliance with the DHS Appropriations Act requirement to make such reports public within 90 days beginning in FY2018 [1]. That framework ties the bureaucratic definition of an “in‑custody” death to the agency’s operational control and its internal publication timeline and review process [1].
2. How counting practices and publication choices have changed and why advocates complain
Advocates and watchdogs say changes in practice—not only policy text—have affected which deaths appear in ICE’s official lists; critics allege ICE has, in some instances, released people shortly before they died or used phrasing and headline choices that downplay custody status, which reduces the number of deaths labeled and counted as “in custody” in agency materials [5]. Independent reports from the ACLU, Physicians for Human Rights and American Oversight conclude that ICE’s oversight and investigative mechanisms have been “critically flawed,” documenting examples where evidence was lost, witnesses weren’t interviewed and reporting fell short of transparency—practices that effectively narrow accountability around in‑custody deaths [4].
3. Historical inflection points: 2009 reforms, 2018 law, and post‑pandemic scrutiny
After investigative reporting and NGO pressure in the early 2010s, ICE adopted death‑review reforms around 2009 aimed at centralized mortality reviews, but subsequent reporting showed gaps and long delays in investigations through 2012 [6]. The 2018 DHS appropriations language created a statutory obligation to publish death reports within 90 days, changing how and when deaths were made public [1] [5]. During and after the COVID‑19 era, researchers documented an uptick in deaths and renewed scrutiny of whether ICE’s definition and counting captured transfers, releases, deportation‑adjacent deaths or deaths in contractor custody—raising questions about boundaries of “custody” in practice [7] [8].
4. Oversight reviews and contested interpretations of data
DHS Office of Inspector General reviews have examined custody death reporting and medical response, sometimes finding failures in timely care while also concluding that systemic agency policies were not the single explanatory factor in certain reviews [2] [3]. At the same time, academic and NGO analyses argue most documented deaths could have been prevented with adequate medical care and that ICE’s investigative practices have obscured causal chains—illustrating a persistent tension between agency definitions and external accountability claims [4] [9].
5. The practical consequences: differing tallies and political stakes
Because ICE’s official definition and its operational practices determine whether a death is reported as “in custody,” different trackers produce different totals—ICE’s public list versus NGO or media compilations—creating disputes over whether counts are rising because more people are detained or because counting rules and practices shifted [8] [10]. Political actors use these discrepancies: lawmakers demand documents and press for reforms when official counts climb, while ICE emphasizes procedural compliance and low overall death rates in defense—each side advancing accountability or enforcement agendas depending on the framing [11] [10].