On March 31st, Trump Administration Attorney General Jeff Sessions issued a memo ordering an "immediate review" of Department of Justice activities involving local law enforcement, including: "collaborative investigations and prosecutions, grant making, technical assistance and training, compliance reviews, existing or contemplated consent decrees, and task force participation." There are likely several goals for this review; for example, its easy to see the "collaborative investigations and prosecutions" language in the memo might be related to the recent Department of Homeland Security decision to publish lists of local law enforcement agencies who are unwilling (or unable due to court decisions) to comply with immigration enforcement and detention. However, this post will concern the memo's focus on "contemplated consent decrees".
First of all - what is a "consent decree"? As a legal term in the United States, a consent decree is typically used in a civil proceeding, and describes an agreement reached between two contending parties that does not include an admission of liability. A consent decree is somewhat similar to the "plea agreements" that now serve as the basis for over 90% of criminal convictions in the US, in that the objective is to reach a resolution without the need for expensive litigation, however a criminal plea agreement almost always involves an admission of guilt.
Consent decrees are not used exclusively in reference to federal reform of municipal law enforcement agencies; consent decrees have been used to enforce a wide-ranging variety of regulations by federal agencies including the Environmental Protection Agency (eg via the Clean Water Act), the Equal Employment Opportunities Commission (via the Civil Rights Act) and the Justice Department targeting commercial defendants (via the Americans with Disabilities Act, et al).
Starting in the 1990's with the Los Angeles Police Department, the Clinton-Era Department of Justice began using consent decrees to compel the reform of police departments with clear, institutionalized patterns of civil rights violations. At the time the consent decree in LA was established, the LAPD had a notorious reputation for racially-charged violence and serving as a sort of occupation force in primarily African American, poorer communities throughout the city. The inevitable animus that this produced culminated in the historic 1992 LA riots after a then-rare video tape of four police officers beating Rodney King were publicized. Twenty-five years later, the Los Angeles Police Department remains deeply troubled. However, major improvements have been made in reducing the overt racism within the department as well as the rates of murder and torture by LAPD police officers.
Following the release of the Sessions memo, the Justice Department attempted to stymie a forthcoming consent decree agreement with the Baltimore Police Department that began during the Obama administration by filing a brief with the court arguing that the decree should be delayed. This created an astonishing situation in which the leaders of both the City of Baltimore and the Baltimore PD wanted the consent decree to proceed, but the DOJ did not (Baltimore PD Commissioner Kevin Davis referred to the DOJ's attempt to delay the consent decree as a "punch in the gut"). Although the DOJ's request for a delay was ultimately rejected by the judge overseeing the consent decree, the message is clear: the Trump administration is determined to prevent future consent decrees from being established and unravelling consent decrees that are already in place.
One of the arguments against the use of consent decrees is federalist. In the April 3rd memo, Jeff Sessions said:
"It is not the responsibility of the federal government to manage non-federal law enforcement agencies".
The ostensible concern here is that these consent decrees pose an over-reach by the Federal government into a responsibility that is best left to the states and municipalities. The argument is given weight by the fact that law enforcement in the United States is overwhelmingly carried out at the state and local level. But why would the City of Baltimore support the upcoming consent decree, if the consent decree represents an imposition onto local sovereignty?
Part of the answer to this question has to do with the fact that states, municipalities and even police chiefs and department administrators are often are unable to carry out reforms of police departments that are popular with the local electorate and desperately needed, because their hands have been tied by decades of concessions provided to law enforcement unions. At the local and state level, police and prison guard unions represent an extremely powerful special interest group with the ability to command a large, consistent and active voting bloc that command a substantial array of PACs and dark money. Local politicians who have refused to support the police union agenda have found themselves stalked by union-hired private detectives and even framed for crimes. Year in an year out, politicians have purchased police union support with a combination of retirement and medical benefits so exorbitant that they have left communities across the country insolvent and special privileges for police officers focused on securing permanent employment for officers and shielding officers from civil and criminal liability for even the most outrageous violations of the public trust. This has resulted in a situation where it is nearly impossible to fire or convict a police officer.
“What it means for the other decrees is really going to depend a lot on what judges do, whether they modify those decrees, and it’s going to depend on whether community groups intervene to try to enforce the decrees themselves, but it certainly signals that in the future, if a police department hasn’t done what it said it was going to do under consent decree and the monitor wants to call them on that, the DOJ is probably not going to have the monitor’s back.” - Christy E. Lopez, Former Deputy Chief, Special Litigation Section of the Civil Rights Division
Consent decrees allow a way out of this toxic situation. Because Federal law supersedes local and state law, consent decrees can be used to enforce reforms that would be impossible due to prior employment contracts or local laws.
In addition to providing a form of "safety valve" for years of vote-buying at the expense of public safety, consent decrees also play a vital role to the research we perform here at the Puppycide Database Project. Modern consent decrees regularly include stipulations which require police departments to make use of force records readily available to the public. A large part of the records we have compiled come from records that departments were forced to provide to the Puppycide Database Project at no cost as the result of complying with a consent decree. In the absence of a consent decree, some (but not all) law enforcement agencies are required to provide use of force records upon request under a state transparency law. However, our research has been stymied repeatedly by exorbitant fees, long delays, censorship and regular record shredding that police departments use to technically comply with state transparency requirements while simultaneously making that compliance effectively meaningless. The consequences of this are terrifying. Setting aside animal killings by law enforcement for a moment, criminal prosecutions of police for murder while on the job are incredibly rare. This means that there are circumstances in which the only "official" documentation of an on-the-job murder by a police officer are the internal documentation of that department and perhaps a state or county investigation. These records can be destroyed after a few years, leaving those killed by police officially disappeared.
We should be clear: consent decrees are not perfect. The Puppycide Database Project has previously reported on how consent decrees are often abused by corrupt organizations like PARC. Courts have come to rely on so-called "independent monitors", including PARC, to enforce consent decrees and ensure that law enforcement departments abide by the promises agreed to in the decree. The aim was to prevent the sort of fundamental conflict of interest that governs the investigation of police abuses: cops do a bad job at policing themselves. However, the few independent monitors that exist are staffed almost entirely by current and former members of law enforcement. Our investigation of the independent monitoring of the Seattle Police Department's consent decree found indications of corruption on the part of the monitor (PARC), including billing the city for exorbitant and outrageous expenses including luxury hotel rooms, a rental home property (with HBO), tens of thousands of dollars in travel and amenities as well as hourly compensation rates for monitor staff members between $250 and $400 per hour for responsibilities including "phone calls". PARC even billed the City of Seattle for toilet paper. When the City of Seattle told PARC that their expense reports were unreasonable, PARC's owner threatened to file a brief with the court alleging that the City was in violation of its Consent Decree - a move that could result in Seattle Officials being held in contempt of court.
Although PARC's behaviour is concerning, complaints of corruption are rarely made to justify the elimination of Consent Decrees. Instead, the animus related to consent decrees appears to come from the notion that law enforcement reform itself constitutes a "War" on police. So-called "alt-right" bloggers, who following the Trump election have found a formerly-elusive legitimacy, responded to the April 3rd memo with posts including the following titles:
"Jeff Sessions Signals That Obama’s War On Cops Is At An End"
"Sessions begins the process of ending war on police"
Supporters of the Sessions memo have cast consent decrees as an invention of the Obama administration, ignoring consent decrees established during the George W. Bush years in an attempt to politicize law enforcement reform itself, despite a growing trend toward bipartisanship in reducing police violence, puppycide and prison overcrowding.
The Holder Justice Department was anything but perfect: both the Puppycide Database Project and private research efforts to research police killings of human beings like lethalencounters.org were founded during the Obama Administration. Obama could very likely have unilaterally required law enforcement agencies to report uses of force to a federal agency that could compile and publicize that data. Instead the United States remains not just the world leader in incarceration, but also a world leader in silence when it comes to killings by police. The Sessions memo dashes hopes that a change in administrations would lead to greater transparency, with a resulting improvement in understanding of the causes of police violence as well as solutions for that violence grounded in science.