Peter Harvey was mingling with the lawyers on both sides of the aisle when I entered courtroom 4A of the Martin Luther King Building in Newark one afternoon in September 2018. Harvey, the federal monitor overseeing Newark’s court-ordered police reform, was scheduled to issue a progress report to Judge Madeline Cox Arleo. The only other people present were five attorneys with the U.S. Department of Justice, a single lawyer representing Newark, three police officers and a pair of Harvey’s associates.
Newark’s history of toxic police-community relations came to a head in 1967, when the police beating of a black taxi driver ignited five days of fatal rioting. For decades, the police had operated with a level of impunity — especially in the black community — that led the current mayor, Ras Baraka, to refer to them as an occupying army. In May 2016, near the end of the Obama administration, the city finally became subject to a consent decree, a court-ordered settlement with the Justice Department requiring reform of the police force.
According to the timetable, the changes were to have been developed and implemented within two years. The roughly 1,100 officers on the force were to have been trained on stops, searches and arrests as well as bias-free policing within 180 days. On both scores, Harvey had requested and Arleo had granted extensions. Both revised deadlines had come — and gone. Up to that September afternoon, only a handful of the dozen or so required policies had been adopted. A few more had been approved, and the rest were pending more review. Training had barely begun.
So I was amazed when Harvey’s remarks touted the “enormous amount of work” the Newark police had accomplished and noted that the department was completing its tasks in a “significantly short period of time in comparison to other cities that have undergone policy rewrites.” This wasn’t accurate. Under a consent decree entered in 2012, the Seattle Police Department, which at the time was somewhat larger than Newark’s, had trained its 1,300 officers on stops, searches and arrests in just two years. The Cleveland Police Department had trained nearly 1,500 officers on its revised use-of-force policy less than two years after monitoring began — which Newark had not managed to do.
The most striking thing about the proceeding, however, was the Justice attorneys’ silence. They didn’t challenge Harvey’s assertion about the completion of tasks. They didn’t advocate for the people of Newark, who were paying Harvey’s nearly $7.4 million fee. They didn’t express concern that the Newark Police Division wouldn’t meet the five-year deadline for “full and effective compliance.” It was as if they weren’t even in the room.
Since first instituted during the Clinton administration, police consent decrees, when enforced, have proved to be effective tools for reforming police departments riddled with racism and bias. Cities from Los Angeles to Pittsburgh to Cincinnati have transformed their policing and improved community relations as a result.
But to work, a consent decree has to be backed by the full force of the Justice Department and the U.S. attorney general. “We had an independent enforcement obligation,” says J. Michael Diaz, who was lead assistant U.S. attorney on Seattle’s Obama-era consent decree and is now a superior court judge in Seattle. The Justice attorneys’ job, he says, was to advocate for the interests of the people of the United States “as zealously as we can.” But under the Trump administration, some court watchers say, Justice lawyers are relatively silent. Georgetown University law professor Christy Lopez was part of the Justice Department unit in charge of consent decrees from 1995 to 2000 and again from 2010 to 2017. “As the attorney on [a consent decree] case for DOJ ... you’re going to have to really push people,” she says. “And right now, the attorneys know they can’t do that. ... You have to get approval ... from your own front office, who in these sorts of cases is going to the [attorney general’s] office. And we all know what the A.G. is going to say here.” The Trump Justice Department, these critics allege, has given up policing the police.
The videotaped 1991 Los Angeles Police beating of Rodney King was the first step toward the rise of police consent decrees, as the public came to recognize the racism and bias plaguing law enforcement agencies. In the aftermath, Congress passed the Violent Crime Control and Law Enforcement Act of 1994, better known as the Clinton crime bill. Though many of its elements are criticized today, it was also the act that authorized the attorney general to investigate and, if necessary, file civil litigation against law enforcement agencies demonstrating a “pattern or practice” of violating people’s constitutional rights. If a city being investigated yielded, it entered into a court-ordered reform agreement with Justice and hired a monitor to steward the process.
The Clinton Justice Department used its new tool, known as Section 14141, against Pittsburgh in 1997. Two years later, it pursued its first racial profiling claim, against the New Jersey State Police, after officers shot three unarmed black men on the New Jersey Turnpike and public attention turned to the disproportionate traffic stops of black drivers. The LAPD came next.
The decision whether to enforce a consent decree, however, was left up to the attorney general, and under the administration of George W. Bush, the instrument fell out of favor. “The Bush administration just walked away from this program,” says University of Nebraska at Omaha criminologist Samuel Walker, an expert on police accountability who has studied consent decrees for years. The pendulum swung back as Barack Obama took office. The returns from the first generation of consent decrees were coming in — and they were dramatic. A 2005 Vera Institute of Justice study called Pittsburgh “a success story,” noting that use of force and improper searches and seizures declined in the year after its decree ended. (The report did note some shortcomings.) A 2009 Harvard Kennedy School study found that serious-force incidents involving the LAPD had fallen five years in a row.
Such results spurred Obama’s Justice Department to go all out, negotiating 23 agreements, more than 58 percent of the total since the program’s start. Vigorous enforcement of consent decrees yielded results nationwide. In Seattle, police approval ratings rose from 60 percent in 2013 to 74 percent in early 2019, according to a city-contracted survey. Since 2015, approval ratings within the city’s African American community have risen from 49 percent to 72 percent. Notably, officer-involved shootings decreased from 15 in 2015 to just three in 2018. A similar story has unfolded in New Orleans, which entered its decree in 2013: By 2017, civilian complaints had dropped 29.7 percent and the percentage of people describing their interactions with police as positive rose from 53 percent in 2009 to 87 percent in 2018, according to one annual community survey. Meanwhile, officer-involved shootings declined from 20 in 2012 to four in 2018 (three were deemed accidental and one was of an animal), and use of deadly force (force likely to result in death or serious injury) incidents fell from 14 in 2016 to zero in 2018.
The impetus for Newark’s decree came in 2010, when the New Jersey ACLU handed the Justice Department a petition documenting more than 400 cases of misconduct by Newark police and almost $4.8 million in settlements paid out between January 2008 and mid-2010. The petition included stories of grisly police beatings, shocking theft and retaliation against officers who complained about misconduct. Much of the community’s outrage was directed at then-mayor Cory Booker’s police director, Garry McCarthy, who had risen through the New York Police Department during Rudy Giuliani’s “broken windows” heyday and had brought similar tactics to Newark.
Around the time Justice sent Booker a letter announcing an investigation in 2011, McCarthy left for Chicago. Booker, for his part, called the federal probe a “win-win” and asserted his faith that it would “dispel” the most extreme allegations in the ACLU petition. Then, in rapid succession, his department rolled out vehicle dash cams and anonymous online incident reporting and transparency data portals on its website. Booker opened a new police headquarters in the city’s most underserved and crime-ridden ward. But none of this helped his reputation — he’d already lost the city’s trust. Ultimately, the 2013 death of New Jersey’s longtime U.S. senator Frank Lautenberg, which triggered a special election, saved Booker’s political future. By the time the Justice Department released its findings in July 2014, Mayor Booker had become Sen. Booker.
The findings weren’t pretty: Supervisors weren’t holding officers accountable. Training was woefully inadequate. The police department’s early-warning system, which can be used to identify problem officers before they get out of control, was outdated and virtually unused. Officers engaged in excessive use of force in more than 20 percent of force incidents, yet the internal affairs unit upheld only one of 82 civilian complaints of excessive force it investigated between January 2010 and June 2011.
Newark and Justice entered a consent decree in May 2016, but soon the national political pendulum would swing again. President-elect Trump, who had vowed to end “the war on our police,” nominated Sen. Jeff Sessions of Alabama as attorney general. Sessions had previously written that consent decrees “constitute an end run around the democratic process,” and at his confirmation hearing, he opined that lawsuits that lead to decrees “undermine the respect for police officers.” In office, Sessions unsuccessfully sought to block Baltimore from entering a consent decree following the death of Freddie Gray, called for a review of every existing decree and made sure the Justice Department didn’t negotiate a single new agreement. He argued publicly that the spate of Obama-era decrees had hamstrung officers, leading to a spike in murders across dozens of major cities. In one of his last acts as attorney general, he signed a memorandum virtually ending the department’s use of consent decrees for the foreseeable future.
Given the change in the Justice Department attitude, I decided to conduct my own review of progress under Newark’s consent decree. In 2017 and 2018, the police department’s internal affairs unit, the Office of Professional Standards, received a total of 43 excessive force complaints. In two years, the office upheld six of those complaints, five more than the Justice Department found it had upheld between January 2010 and June 2011 — suggesting that the NPD was at a minimum taking complaints more seriously.
But Justice had identified another use-of-force issue: poor incident reporting. My review of every available Use of Force Report for June 2016, 2017 and 2018 showed that this remained a problem. The Justice Department had found that the NPD, in violation of its own written policy, was not fully entering use-of-force information into its data management system. The consent decree required the department to adopt a use-of-force reporting system, but an August 2018 response to an open-records request made by Type Investigations revealed that “data for Use of Force is not captured in a database.” Seattle officers started entering their force reports in a Web-based interface in the spring of 2014, less than two years after Seattle’s decree was issued. Similarly, New Orleans began making its raw use-of-force incident data available through its online public-records request system in 2016. The data is updated nightly for anyone in the world to analyze.
Justice had also criticized the department for using a report that “made it impossible for a reviewer to tell what happened, especially in situations where more than one type of force is used, or force is used against more than one person.” Though the NPD did revise its force report a few months later, the issues Justice cited remained. To see just how bad things were in Newark around the time the consent decree took effect, consider June 17, 2016. On that day, nine officers filed 15 use-of-force reports involving four suspects for the same incident. Varying reports listed a different age, race and arresting charge for the same suspect. Some officers said the incident took place in the “112” sector, while others claimed “113.” A number of reports differed on whether a given suspect was or was not charged. Six officers wrote reports about a single young man, three indicating that he had suffered injuries and been hospitalized, two saying that there were no injuries and no hospitalization, and one saying that there were no injuries but that he had been hospitalized. Fourteen of the 15 reports were approved by a supervisor.
My review of the June 2017 and 2018 force reports uncovered problems that were persisting. Nine reports had not been approved or signed by a supervisor, as required by department policy. Further, the force reports remained as vague as they had been when the Justice Department conducted its review in 2010 and 2011. In more than 20 percent of the 2018 reports, “suspicious person” — a term Justice found fault with because it failed to articulate an underlying crime — was listed as the “type of call.” Two-thirds of those calls resulted in the suspect’s arrest and a charge of resisting arrest, pointing to a pattern Justice had uncovered of what it called “contempt of cop” arrests — people being arrested and charged with resisting when they “lawfully object to police actions or behave in a way that officers perceive as disrespectful.” Such arrests are unconstitutional.
The Justice Department report also pointed out that black people bore the brunt of Newark’s unconstitutional policing. Though blacks represented just under 54 percent of the population at the time of Justice’s review, the report had determined that 81 percent of all pedestrian stops and 79 percent of all arrests were of black people. Significantly, Justice also found that “people identified by the officer as black” accounted for 85 percent of stops for which “suspicious person” was one of the explanations given. In fact, a remarkable 75 percent of all NPD stop reports with a recorded justification filed within the 3½-year review period for this issue failed to articulate reasonable suspicion.
More than two years into the consent decree, Newark was still over-policing its black residents. According to the city’s stop-and-frisk data from June 2016, 2017 and 2018, black people accounted for 73 percent of all stops, more than 81 percent of frisks and 80 percent of arrests. Those disparities have persisted in 2019. In that same month for 2019, for instance, black people were subject to 67 percent of stops, 82 percent of frisks and 77 percent of arrests.
Such disparities persist in the police department’s use of force as well. Not only did the number of force incidents increase by almost 23 percent between 2017 and 2018, but the percentage of black force victims increased from almost 74 percent to 82 percent, higher than in 2013, the first year Newark began publishing this data.
I presented my findings to both Lopez and Columbia Law School professor Jeffrey Fagan; both said the persistence of racial disparities is the hardest problem to fix. “If you’re not seeing changes in racial disparities, then the monitoring team and DOJ ... should really be probing the police department,” said Lopez. “There should be lots of meetings about this, lots of brainstorming and problem-solving and reports, ... and they should be in court.” The 2014 Justice report on Newark, which Lopez co-wrote and which covered 2007-2012, cited the NPD’s “failure to track and analyze data with respect to race.” Thereafter, the 2016 decree required the monitor to assess the department’s stop, search and arrest data to ensure constitutional policing, and said the department must “establish steps for determining the nature and scope of demographic disparities in stop and search practices, and whether any such disparities can be decreased or eliminated.” To date, none of Harvey’s monitor reports — including the most recent one, issued Oct. 25 — have mentioned the persistent racial disparities in the NPD’s transparency data.
I sent the Justice Department and Peter Harvey a set of detailed questions about my findings and the situation in Newark. Justice declined to comment on my questions, and Harvey did not respond. But Alexander Shalom, an attorney with the Newark-based ACLU of New Jersey, which filed the 2010 petition leading to the consent decree, does not believe that much has changed. “No longer can a Newark police director stand up and say, ‘My goal is to maintain the status quo,’ ” he says. “But I don’t know that we’ve succeeded in effectuating the culture change in the police department that we were hoping the feds could bring.”
Newark Mayor Ras Baraka grew up in the shadow of the city’s policing crisis. His father, the poet Amiri Baraka, was arrested during the 1967 riots and remained a staunch critic of the police until he died in 2014, just a few months before his son was elected in what was seen as a referendum on Booker. Three weeks after Baraka’s swearing-in, the Justice Department report landed on his desk. “It’s almost poetic,” Baraka said when I met him at City Hall on a brittle winter morning. “We embraced [the decree], because I knew what was in the report was real. ... I experienced that in my own life growing up in the city of Newark, and my friends did and their friends did.”
I brought up the disparities still appearing in the city’s policing data. Why wasn’t the decree being used to record police data more effectively? “Newark is still in the Stone Ages as it relates to that,” Baraka acknowledged. He cited the department’s fixation on reducing crime (down 15 percent overall) and civilian complaints (down 39.6 percent since 2012) as its sole measures of success. It was not accustomed, he said, to “getting all this data. How do we review that? How do we look at all this stuff and make decisions based on all this information?”
Still, things were changing, he said, and ran down a list of new programs and initiatives: Officers were participating in trust-building training with community members, and clergy were patrolling alongside police. Ex-offenders were being trained to broker peace treaties between gangs and to run their own community patrol units. And in 2015, Baraka established an 11-member civilian review board to investigate complaints against the police and make discipline recommendations. Though initially challenged by the local Fraternal Order of Police, it is now poised to be among the strongest civilian review bodies in the country. “Is it where we wanted it to be? By no stretch of the imagination. ... But it is totally different than when I was 18 years old,” Baraka told me.
The change refrain was one I heard from NPD brass as well. I met with Capt. Brian O’Hara, commander of the consent decree police unit, an earnest man trying to walk the fine line between advancing public safety and protecting people’s rights. When I presented my racial-disparities findings to him last fall, he said the department was planning to roll out a new field inquiry report that captured all the data required under the consent decree. (Nearly a year later, that report remains forthcoming.) I asked him why the department needed a new field report before it could start investigating the disproportionate rate at which black people are stopped, searched and arrested. “The DOJ shouldn’t have to come and tell you to look at this,” I said, referring to the 2016 report demanding that Newark do just that.
O’Hara listened intently. Then he reiterated that the NPD’s job was to focus on making sure its field reports were accurate. As to the issue of racial disparity, “the monitoring team is going to have to come up with how to figure that out,” he said. In fact, however, paragraph 53 of the consent decree put the onus on the NPD to “develop a protocol for comprehensive analysis of stop, search, and arrest data.” Harvey, along with the Justice Department, would merely “review and approve” that protocol.
The one area that Harvey did harp on in his quarterly reports was training — it was the key, he believed, to solving Newark’s most intractable policing problems. O’Hara and his superiors thought the same: Things would improve once their people were trained.
In May, the consent decree unit invited me and a group of community activists to attend a training session at police headquarters. Judge Arleo had approved a flurry of consent-decree-mandated policies on Dec. 31, and the department had finally begun training its officers. But the training I was invited to was attached to the bias-free policing policy, which had been completed and approved in September 2017. It was unclear to me why that training was only now beginning.
For two days, we sat in a room and listened to a former police chief turned implicit-bias-training consultant flip through his slide deck. He delivered an overview of the distinction between explicit and implicit bias and shared contemporary research on how implicit associations are formed; he discussed policing situations where bias can influence police behavior and surveyed accountability measures that help minimize biased policing. We spent an inordinate amount of time on some pixelated videos. In one, officers walked a Hispanic youth down a block while neighbors looked on critically, drawing the worst conclusions. Then the officers delivered the boy to his parents and wished everyone a great day. In another, three people attempted to steal a bike in broad daylight. When the “thief” was a white woman, bystanders sought to help her. When it was a black man, they called the police.
For 13 hours, NPD commanders sat in the back row, arms folded and mouths set. There was no conversation about structural oppression or systemic racism; no discussion of Newark’s history or any Justice Department findings; no look at any Newark-specific data. At the end, there was no assessment of anything that participants had learned. Each of us, including the community members, was simply handed a certificate of completion and sent on our way. The rank-and-file, we were told, would receive the same training in the coming weeks.
Dax-Devlon Ross is a reporting fellow with Type Investigations, which produced this article in partnership with The Washington Post Magazine.