“Local control and local accountability are necessary for effective local policing,” Sessions wrote in a memo, dated March 31 and made public Monday, ordering his top deputies to review the police reform agreements. “It is not the responsibility of the federal government to manage non-federal law enforcement agencies.”
But for nearly a quarter of a century, the federal government has been seeking the very orders Sessions wants reviewed. Under pacts known as “consent decrees,” the Justice Department’s Civil Rights Division — after conducting investigations of local police departments — has agreed on reforms that a federal court has enforced and an independent monitoring team has overseen. There are other agreements reached between federal and local officials aimed at spurring reforms, but the consent decrees are the most stringent and high-profile.
Consent decrees were a key component of President Obama’s Justice Department, which placed an emphasis on aggressively probing police departments for potential constitutional violations, a focus that took particular prominence in recent years as a series of protests about how and when officers use deadly force emerged across the country.
The Justice Department said it opened 25 investigations into law enforcement agencies since 2009, and has been enforcing 14 consent decrees. In a detailed report the Civil Rights Division released before Obama left office, officials provided both a history and a defense of these agreements, which criminal justice reform advocates have praised and local law enforcement leaders have welcomed while pledging to reform their departments.
Sessions has been a longtime critic of the pacts. The attorney general — a former federal prosecutor and U.S. senator — once called consent decrees “one of the most dangerous, and rarely discussed exercises of raw power” and “an end run around the democratic process.”
Consent decrees have their roots in a different era of protests over how police use force. After Los Angeles police officers beat Rodney King in 1991, leading to unrest after the officers involved were acquitted, Congress acted in 1994 to give the Justice Department the ability to investigate local police departments and force reforms.
Before any consent decrees, Justice Department officials conduct what are known as “pattern or practice” investigations, which look for systemic police misconduct and can focus on things like racial discrimination and improper uses of force.
The first such probe was opened in January 1997 in Pittsburgh, yielding a report that outlined problems there and then an agreement to reform the department, according to the Civil Rights Division. The Justice Department’s pattern-or-practice probes do not always end with consent decrees. According to the Civil Rights Division, officials launched 69 total investigations and closed 26 of them without any finding of problems with a pattern or practice.
Officials acknowledged in the Civil Rights Division’s report that they could not investigate each of the 18,000 law enforcement agencies nationwide. Instead, the division “considers whether the allegations represent an issue common to many law enforcement agencies as well as whether the allegations represent an emerging or developing issue, such that reforms could have an impact beyond the primary objective of eliminating constitutional violations in the specific law enforcement agency.”
Investigations have prompted consent decrees with major cities including Seattle, Portland, Ore., and New Orleans, which remain in effect, along with others in cities such as Washington, D.C., and Los Angeles, which have terminated.
More recently, investigations and proposed reforms have unfolded amid an acute focus on policing, such as probes that examined police in Chicago, Baltimore and Ferguson, Mo. In each case, there were intense demonstrations after a deadly encounter involving a black man or teenager and a police officer. In each case, the federal government launched a federal civil rights probe that produced a scathing report detailing unconstitutional, racially biased policing.
Officials then began negotiating toward reforms, which can often result in a consent decree. The negotiations do not always go off without a hitch. In Ferguson, the Missouri city where a white police officer shot 18-year-old Michael Brown, federal officials pilloried the local police before entering negotiations about potential reforms. When city officials hedged on a tentative agreement, the Justice Department sued the city. Ferguson city officials backed down and a judge approved the agreement last year.
The Baltimore agreement, meanwhile, was announced in January, just days before President Trump took office. A federal civil rights probe there was launched in 2015 after 25-year-old Freddie Gray died of a spinal cord injury he suffered while in police custody, an episode that prompted rioting in Baltimore. As part of a push to secure a reform deal before Obama left office, then-Attorney General Loretta E. Lynch took the unusual step of saying she would head to Baltimore during negotiations with the hope of locking down reforms before an agreement was reached.
Such agreements must be approved by a judge. And while the Baltimore pact was signed by both sides and entered into federal court, U.S. District Judge James K. Bredar has not signed off on it, and the Justice Department on Monday sought to postpone a public hearing as part of that consent decree process.
Sessions’s memo announcing a review of “existing or contemplated consent decrees” would seem to extend beyond the Baltimore pact and to the last police investigation of the Obama era: A sprawling probe of the Chicago Police Department, the country’s second-biggest local law enforcement agency. A day after the Baltimore agreement was announced, Lynch was in Chicago to release the findings of the investigation into that city’s police department and to stand alongside local officials as they pledged to negotiate toward a consent decree.
While in Chicago, Lynch said she expected an agreement with local officials to outlive Obama’s term. “Yes, the top people at the Department of Justice move on, but this agreement is not dependent on one, or two, or three people,” she said at the time.
Sessions had been noncommittal about the future of a potential agreement with Chicago. Speaking to reporters in February, he also criticized the Chicago and Ferguson reports the Justice Department produced, saying that he had not read them but had seen summaries and viewed them as “pretty anecdotal and not so scientifically based.”
In a joint statement after Sessions’s memo was made public Monday, Chicago Police Superintendent Eddie Johnson and Mayor Rahm Emanuel (D) said they could “only speak for our intentions, we can’t speak for the federal government’s,” but vowed to continue working toward reforms.
“Reform is in our self-interest and that is why Chicago has been, is, and always will be committed to reform,” they said in the statement, which did not directly address what the Justice Department’s review could mean for a potential consent decree there.
Some of the agreements are so new that it can be hard to measure their long-term impact. In 2015, The Washington Post and “Frontline” teamed up to survey four departments where consent decrees have been utilized, finding that they helped in some cases but also lagged in other ways:
The reforms have led to modernized policies, new equipment and better training, police chiefs, city leaders, activists and Justice officials agree.
But measured by incidents of use of force, one of Justice’s primary metrics, the outcomes are mixed. In five of the 10 police departments for which sufficient data was provided, use of force by officers increased during and after the agreements. In five others, it stayed the same or declined.
None of the departments completed reforms by the targeted dates, the review found. In most, the interventions have dragged years beyond original projections, driving up costs. In 13 of the police departments for which budget data was available, costs are expected to surpass $600 million, expenses largely passed on to local taxpayers.
The reform agreements put in place can also stretch on for quite some time. The Civil Rights Division report on its police investigations noted that reform pacts, including consent decrees and other agreements for reforms, do not come with specified windows. Some have ended after a few years, while other reform deals have remained in place for more than a decade. The report also noted that it was not up to the Justice Department or local law enforcement agency when court-enforceable agreements wrap up, noting that “the decision about when a consent decree ends is up to the judge.”