This article appears in the Summer 2017 issue of The American Prospect magazine. Subscribe here.
On April 7, U.S. District Judge James Bredar officially approved the consent agreement between the U.S. Justice Department and Baltimore's mayor, city council, and police department to reform local law enforcement practices across the city. The judge did so over Attorney General Jeff Sessions's pleas to the judge to refrain from signing the agreement until he had a chance to review it. Bredar dismissed Sessions's request, saying that there was no legal justification for holding up a process that already had the full endorsement of all involved parties, including, apparently, Sessions's own team.
Last August, when Barack Obama was still president, the Justice Department concluded, after a year-long probe, that Baltimore police's “disproportionate enforcement against African Americans is suggestive of intentional discrimination.” Investigators came to this conclusion after realizing that the racial disparities they found were most extensive in those enforcement practices where officers had the most personal discretion, particularly with searches and arrests. Which meant police were choosing to discriminate against African Americans. They clearly needed to be reined in.
Baltimore was still reeling from the death of the young African American Freddie Gray, which happened while he was in police custody, and for which no police officer has been convicted of a crime. A consent decree is the instrument the Justice Department uses to correct structural and systemic problems found in recalcitrant police organizations—in this flagrant case, Baltimore. Under the consent agreement, the police department must, among other things, establish a new civilian oversight task force, to make the department more responsive to the public.
Such agreements, authorized by the 1994 Violent Crime Control and Law Enforcement Act, are sought by the Justice Department only in extreme cases. Since the law's passage, only about 70 investigations and 40 agreements have resulted, out of several thousand police departments in the United States.
Sessions was indignant about the judge's decision to move forward with the Baltimore agreement, saying in a public statement:
Today, a federal court entered a consent decree that will require the court and a highly-paid monitor to govern every detail of how the Baltimore Police Department functions for the foreseeable future. This decree was negotiated during a rushed process by the previous administration and signed only days before they left office. While the Department of Justice continues to fully support police reform in Baltimore, I have grave concerns that some provisions of this decree will reduce the lawful powers of the police department and result in a less safe city.
AP Photo/Jose Luis Magana
In fact, the time that elapsed between the Justice Department announcement of its investigation's findings and the parties' agreement on reforms—the consent decree—was roughly five months. This was hardly a rushed process. Maryland state lawmakers complained in November that the Obama administration was dragging its feet on getting the agreement signed. The fact that such agreements aren't simply consummated in a matter of days or even weeks reflects a rigorous negotiation process that often involves multiple stakeholders, sometimes including police unions and community activists. In Ferguson, Missouri, where a police officer's killing of the young African American Michael Brown invited a Justice Department investigation into the city's police practices, it took ten months to settle a consent decree. In other cases, such agreements have taken years to finalize.
Sessions's other contention, that the Baltimore consent decree would make the city less safe, is the standard response from people who believe that local police officers are over-regulated. According to research by criminal law professor Stephen Rushin, there is some truth to the idea that crime initially rises in cities where consent decree–imposed police reforms are issued. In examining 31 consent decree agreements made in various cities between 1994 and 2016, Rushin found a “statistically significant uptick in crime rates,” particularly property crimes, in the immediate years after reforms were installed. However, those upticks were temporary. Rushin's research also shows those crime rates diminish “to statistical insignificance over time.”
Meaning, cities go through some rough crime-related turbulence—or “growing pains,” as Rushin puts it—as police transition into the new systems of operations that come with consent-decree reform. As they get more settled in and comfortable with the new systems, they can police more effectively, and crime rates start to drop. It is a fact that crime has dropped precipitously in most cities since the first consent decree was signed for Pittsburgh's police department in 1997. Criminologists and Giuliani-ists have argued for years about whether the crime drop had more to do with the larger tough-on-crime provisions of the 1994 crime bill, or if it were other factors such as the burnout of the crack epidemic. But what can't be disputed is that consent decrees did not lead to any permanent rise in crime in the bulk of cities where such federally enforced police reforms took hold.
The real problem Sessions seems to have with these instruments—which he has admitted publicly he hasn't even read—is that they force police departments to be accountable to the public. It is true that consent decrees haven't necessarily solved police brutality, or dealt a decisive blow to discriminatory policing in general. A Washington Post study of consent-decree implementation found “mixed results,” in that many police departments under federal oversight actually experienced increased incidents of police using violent force against civilians. Noted police reform expert David Harris, who runs the “Criminal Injustice” podcast, stated in a recent New York Times article that some reforms from the 1997 Pittsburgh police consent decree “did not stick.”
Where consent decrees have been effective, though, is in forcing police departments to actually respond to and investigate citizen complaints.
Before this tool was available, police notoriously ignored anyone who even attempted to file a grievance against an officer who mistreated them. The failure to record complaints registered against police made it impossible to track which officers were most problematic. This continues to be a problem among police departments that are not subject to federal supervision, as often is revealed once a police department becomes the target of a Justice Department investigation.
For the Baltimore police investigation, the Justice Department wrote:
For years, the [Baltimore Police] Department's process of investigating and adjudicating complaints has been plagued by systemic failures, including: discouraging individuals from filing complaints; poor investigative techniques; unnecessary delays; minimal review and supervision; and a persistent failure to discipline officers for misconduct, even in cases of repeated or egregious violations. BPD likewise fails to provide information about officer misconduct in a transparent manner or receive input on the accountability process from the community it serves. As a result, a cultural resistance to accountability has developed and been reinforced within the Department. This culture further undermines accountability by discouraging officers from reporting misconduct and discouraging supervisors from sustaining allegations of it.
The Justice Department found similar failures to track or investigate complaints in their recent probes of Chicago, Ferguson, Cleveland, New Orleans, Miami, and Newark. In many of these same cities, African Americans were stopped, searched, frisked, questioned, and arrested at far higher rates than white civilians, even as police turned up less evidence of drugs, weapons, and criminal activity among their black targets. Reporting for The New Yorker and a PBS Frontline documentary on the Newark consent decree, Jelani Cobb wrote, “In place of reasonable suspicion, the police have adopted a standard in which all suspicion is reasonable.” But not apparently when suspicion is found within the Newark police department, where 99 percent of officer complaints were dismissed by the internal affairs office.
Shane T. McCoy/U.S. Marshals/Public Domain
The largest section in Baltimore's 227-page consent decree agreement focuses on misconduct investigations and police discipline. The department is now compelled to respond to all civilian complaints and investigate them to completion in a timely manner. They are required to organize collected data around the complaints in order to better identify which officers are getting flagged the most and for what reasons. In its execution, Baltimore has the advantage of learning what has and hasn't worked in the reform systems put in place in dozens of other consent-decree police departments that came before it.
WHEN THE JUSTICE Department inked its first consent decree deal in 1997 with Pittsburgh’s police department, one of that agreement’s main functions was developing a working complaint-intake system and a protocol system for investigating complaints. At the time, there was scant precedent out there from which to model remedies.
The one major case of department-wide reform was the Los Angeles Police Department, which underwent policy transformations after the Rodney King beating, and the ensuing riots after King's police attackers were acquitted. The Christopher Commission, which investigated the police, found that despite more than 3,000 allegations from the public of police using excessive force between 1986 and 1990, only 3 percent were actually sustained by the department. Most major-city police departments had been around for at least 100 years by this point, but it wasn't until this Christopher Commission took off—prompted by the savage beating of an African American—that departments were made to finally get serious about acting like responsible and accountable organizations.
Before Pittsburgh entered into its consent decree in 1997, it was already under intense scrutiny from the local NAACP and ACLU chapters
, which were engaged in a massive probe into rampant and unpunished police misconduct throughout the department. The civil rights organizations were gathering testimonies from hundreds of people across the city, mostly African Americans, which they used to file a lawsuit against the police department in 1996.
“What we saw was an environment where police officers felt like they could do anything they wanted, and it was often demonstrated in basic rudeness and unprofessionalism,” says Witold “Vic” Walczak, legal director for ACLU of Pennsylvania, who helped lead the lawsuit effort against the Pittsburgh police.
Walczak explained to me how his lawyers were granted a court order to look through the police department's internal affairs files for discovery, but were dismayed to find that those files weren't archived or catalogued in any kind of organized format. In going through them, Walczak's investigators turned up numerous cases of police officers with dozens of complaints attached to their names, most of them dismissed or denied for trivial reasons. The ACLU ended up halting its lawsuit when the Justice Department took over in 1996, and as a result of the consent decree, the police department was forced to get its affairs in order.
“It forced Pittsburgh [police] to adopt good management practices, and that's all these consent decrees are: good management practices, which unfortunately most police departments don't have,” says Walczak.
Loavesofbread/Creative Commons
In Ferguson, Missouri, where a police officer’s killing of the young African American Michael Brown invited a Justice Department investigation into the city’s police practices, it took ten months to settle a consent decree. Here, protesters clog the streets of Ferguson in August 2014.
According to a 2005 report, “Federal Intervention in Local Policing: Pittsburgh's Experience with a Consent Decree,” issued by the Justice Department's Office of Community Oriented Policing Services, there were three main reasons the city signed on. The first was that the city hired a reform-minded police chief, Robert McNeilly, who was actually and finally serious about making changes to police culture. The other reasons:
[C]ity officials realized that police record-keeping was so poor that they couldn't adequately defend the police against the allegations. Finally, the changes the federal government was demanding would include a new database system that, among other benefits, would allow the city to produce statistics that could refute future critics of police conduct and show that police were not targeting minorities disproportionately.
The Pittsburgh Bureau of Police dates to 1857, but it took 140 years for its leaders to figure out that keeping a record of police conduct and complaints might actually protect them. However, police unions have historically only really been concerned with protecting police officers from having to answer to the public. Additional research from Stephen Rushin shows that Pittsburgh was among a small group of federal consent-decree cases where reform efforts were considerably hampered by the collective-bargaining agreements cities signed with police unions.
“In Pittsburgh, the union contract has prevented investigators from considering all complaints because of a clause that establishes a ninety-day statute of limitations on civilian-complaint investigations,” wrote Rushin in his study of police union contracts published in the Duke Law Journal in March 2017. The clash with the union in Pittsburgh perhaps could have been avoided, though. As the “Federal Intervention in Local Policing” report lays out, Justice Department investigators did not interview union officials in their probe, and perhaps because of that, the union sat out consent-decree negotiations. Getting at least some union buy-in—to the extent that was possible—might have helped make consent-decree operations run a little smoother.
With the Baltimore consent decree, Justice Department officials told the local public radio station that it solicited and included police union input for the final agreement (though union leadership denies this). Still, the Baltimore police union continues to undermine the consent-decree process, and supported Sessions's attempt to delay its implementation. Meanwhile, the Justice Department's findings regarding police misconduct complaints were, as in the Pittsburgh case 20 years ago, as much about improving the department's management practices as they were about accountability.
IN THE BALTIMORE case, the Justice Department found that the BPD failed to record vital information regarding officers’ stops and searches of pedestrians and drivers, and that there was no integrated data system to track officers’ use of force against civilians. Investigators learned that the BPD maintains “232 separate databases to store information, most of which cannot link to each other.” On top of that, the police supervisors had no way of tracking things like how frequently police officers searched the people they stopped, or how often their arrests led to dismissed charges. So there’s been no way to account for whether a civilian’s complaint against an officer might have some additional merit based on that officer’s track record.
AP Photo/Patrick Semansky, File
“Indeed, our review did not identify a single stop, search, or arrest that a front line supervisor found to violate constitutional standards—even though numerous incident reports for these activities describe facially unlawful police action,” reads the Justice Department's investigation report. “The Department sustained only one excessive force complaint that came from internal channels between 2010 and 2015, despite the over 2,800 uses of force that BPD recorded during that time period.”
If there's no way to analyze and cross-check data, then there's no way to ascertain which police officers are regularly flouting the law with impunity. Under the new consent decree, the police department has agreed to maintain a centralized electronic tracking system for all misconduct complaints and police activity in the streets. Also, the public will be allowed to access and track the status of misconduct investigations.
Such measures might allow community members to muster some level of confidence that police are actually following up on civilian grievances, which might actually start to establish some trust in the police department, particularly within black communities. As it stands, that kind of confidence is woefully low. In a recent Urban Institute survey of people living in communities with the highest levels of violence and police presence, only 28.3 percent said police were responsive to their concerns. Less than 25 percent said that their police department holds officers accountable for misconduct.
Consent decrees are among the few instruments out there that force police departments to confront those perceptions, and to do something about it.
One could argue that consent decrees are even influencing police departments that aren't subject to federal interventions.
There are several cases in recent years where police officers, caught on camera killing or otherwise exercising violence on civilians, are being suspended without pay or fired, sometimes before they've even been convicted of anything—almost as an acknowledgment that police officers likely won't be held accountable in courts even if there's evidence of wrongdoing. In Cleveland, the police officer who killed 12-year-old Tamir Rice was fired despite a grand jury declining to bring charges against him. A police officer who recently killed an unarmed black teenager in Austin was also fired. Police leaders seem to be terminating violent officers perhaps as a way to avoid triggering a federal review of their departments' practices, and not to show black communities that they are serious about accountability.
“The importance of the consent decree is that you're dealing with a closed system—law enforcement is by and large not a transparent agency,” says Walczak. “And given what the Supreme Court has done to hamstring civil rights and private-party litigation over the last 50 years, there are a lot of constraints on groups like the ACLU being able to use the courts to fix this problem. … Section 14141 [of the 1994 Violent Crime law] gives DOJ the tools to do this work, and they are the only ones who can do it effectively.”
SESSIONS, FOR HIS PART, has been more inclined to cater to police forces than to improve policing practices. After Sessions met with leaders of the National Association of Police Organizations, which represents rank-and-file officers, on May 4, NAPO’s newsletter criticized the Obama administration’s championing of accountability measures:
Under the previous administration, the Civil Rights Division has made the demonization and prosecution of law enforcement officers who have used force one of its top priorities, which has alienated the law enforcement community and seriously eroded any trust between law enforcement and the DOJ. The Civil Rights Division must view law enforcement as its ally in protecting the civil rights of our nation's citizens. The Attorney General shared this concern and he has already made headway on this issue with his call for the review of all consent decrees and memorandums, amongst other actions. He does not feel it is the federal government's job to dictate how state and local law enforcement agencies should be run.
The Violent Crime Control and Law Enforcement Act states otherwise. Right now, it looks like Sessions is determined to undermine a law he has a duty to enforce.
