Beginning in 2015, following the horrific death of Freddie Gray in police custody, the Department of Justice launched an investigation into police patterns and practices in Baltimore. Among other things, DOJ discovered that the police routinely conducted unconstitutional stops and searches, effectively targeted African-Americans, and used excessive force.
DOJ and Baltimore officials finalized a 227-page agreement around reforms to the police department and its practices just before President Barack Obama left office. Although the incoming administration fought proceedings, Judge James K. Bredar of the U.S. District Court for the District of Maryland made it official, issuing it as an order in April 2017.
The decree specifies how the city of Baltimore and its police department must resolve the systemic problems that led to Gray’s death, among other abuses, going forward. The consent decree—as is typical—called for the parties to agree on an independent federal monitor to assess compliance. Violations go to Judge Bredar, not DOJ. (Thank God.) Full compliance means total reform.
Outgoing Attorney General Jeff Sessions would have nixed—did try to nix—consent decrees like that DOJ entered into with Baltimore (see also Chicago). In the absence of the ability to withdraw decrees, Sessions has opposed forming new ones. Just before he left office, he issued a memo making consent decrees much, much more difficult.
Per Sessions, DOJ’s consent decrees with “state and local governments and entities” must now be approved by political appointees, rather than signed off on by career lawyers. Furthermore, there must be evidence of violations beyond unconstitutional behavior. No longer will consent decrees end when compliance begins; rather, every consent decree must have a sunset date, whether the errant party has complied or not. It’s the requirement that a political appointee sign off that’s really killed consent decrees, given how clearly this administration has repudiated their use.
Why does this matter?
Consent decrees are one of the most critical ways the federal government enforces constitutional rights generally and effects police reform in particular. “Consent decrees are a necessary, careful tool to ensure entities such as schools, employers, and law enforcement remedy patterns and practices of unconstitutional conduct,” said Vanita Gupta, president of the Leadership Conference on Civil and Human Rights. “These agreements have judicial oversight and are used only when there is clear, overwhelming, and well documented evidence.”
Ferguson, Missouri, is bound by a consent decree; so is Newark, New Jersey. Baton Rouge, Louisiana, is subject to a consent decree meant to promote diversity in its police force that’s nearly 40 years old. That consent decree originally bound surrounding cities, but almost all have been dismissed as they met the terms of the consent decree, reforming their hiring and promotion practices.
Sessions’s latest, maybe last memo is part of a suite of decisions curtailing DOJ’s role in enforcing civil rights and promoting police reform. In April 2017, Sessions announced that all consent decrees between DOJ’s civil rights division and police departments were subject to review. Come September 2017, he gutted Community Oriented Policing Services, which had previously been responsible for investigating and advising police departments.
Sessions is all for punishment—just not the type of punishment that follows from accountability. This is the man who, while abandoning any pretense of civil rights law enforcement, doubled down on criminal enforcement, instructing federal prosecutors to pursue the gravest charges (and most serious sentences) possible.
The next administration can reverse Sessions’s policy, but it’s criminal that he’s undone the work that the Obama administration began—with COPS, through consent decrees, etc. These agreements provide support as well as strictures to police departments; regular interaction builds a foundation for trust.
