On his last day as U.S. attorney general, Jeff Sessions issued a memo making it more difficult for Justice Department officials to obtain court-enforced agreements to stop civil rights abuses by local police departments. At least, that’s how his missive has been framed. It’s actually worse than that.
Stymieing future consent decrees is bad enough, but Sessions’ memo will make it challenging to negotiate any effective police reform agreement going forward. It also makes it more difficult for the Justice Department’s civil rights lawyers to enforce agreements already in place.
Consent decrees are legally binding agreements with local police departments found to have engaged in practices that routinely violate the civil rights of those within their jurisdictions. The Justice Department has negotiated such agreements in places like Ferguson, Baltimore, New Orleans, Cleveland and Los Angeles. Work remains to be done. Just last week, another possible candidate has emerged in Elkhart, Indiana, where ProPublica reports that out of 34 police supervisors, 28 have been disciplined, 15 suspended, seven involved in fatal shootings and three convicted of criminal charges.
A report on the use of force in police departments across the country released last week by the U.S. Commission on Civil Rights further underscores the broad need for this work. That report discusses a generally high rate of use of force, racial disparities in how force is used and the rift such tactics drives between police and communities most in need of police protection. The report calls for the Justice Department to return to “the use of consent decrees where necessary to ensure that constitutional policing standards are upheld.”
The DOJ’s own police misconduct statute explicitly requires that the attorney general seek relief that will eliminate the pattern or practice of misconduct, and case law requires that consent decrees do more than simply prohibit unlawful conduct. But Sessions’ memo ignores those requirements, directing any relief to be “narrowly tailored” to the injury caused by the misconduct, and that a consent decree not be used to achieve a “general policy goal.” These directives make it easy for those hostile to federal enforcement to line-item veto the most critical portions of a consent decree, rendering the entire order ineffective.
For example, Baltimore and Ferguson both have consent decree requirements mandating training in force de-escalation and implicit bias. These are corrective actions necessary to remedy patterns of excessive force used against persons in mental health crisis and black men. Will political appointees in this administration understand this—will they care? Is requiring greater community engagement, as many consent decrees do, a “general policy goal” prohibited by the memo? Or is it an essential element to overcoming the bias and stereotypes that fuel unlawful racial and ethnic discrimination by police? Police experts know it is the latter, but there is a good chance that this Justice Department would categorize it as the former.
The memo also discourages new consent decrees that are more than three years long, or requirements that a decree remain in place until the remedy has been fully implemented. This takes another unique consent decree strength—its staying power—and turns it on its head.
The Sessions memo, contrary to some news reports, also has implications for consent decrees that are already in place. For one thing, it states explicitly that any significant change to a consent decree must be approved in the same manner as a new consent decree, thus making them subject to all the same roadblocks above. (cont)
