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Opinion Consent decrees have a mixed record of success, but Sessions’s plan to end them is still worrisome

Attorney General Jeff Sessions. (Shawn Thew/European Pressphoto Agency)

Attorney General Jeff Sessions announced this week that he’s ordering a review of all “consent decrees,” the reform agreements the Justice Department has forged with police agencies that federal investigators found to have engaged in a pattern of constitutional violations. From The Post:

Attorney General Jeff Sessions ordered Justice Department officials to review reform agreements with troubled police forces nationwide, saying it was necessary to ensure that these pacts do not work against the Trump administration’s goals of promoting officer safety and morale while fighting violent crime.
In a two-page memo released Monday, Sessions said agreements reached previously between the department’s civil rights division and local police departments — a key legacy of the Obama administration — will be subject to review by his two top deputies, throwing into question whether all of the agreements will stay in place.
The memo was released not long before the department’s civil rights lawyers asked a federal judge to postpone until at least the end of June a hearing on a sweeping police reform agreement, known as a consent decree, with the Baltimore Police Department that was announced just days before President Trump took office.

As I understand it, once one of these decrees is under the authority of a federal judge, it would be difficult for Sessions to dismantle it. If that’s the case, this would really only apply to agreements yet to be made or currently under negotiation — most notably in Chicago and Baltimore. (Presumably, Sessions will find the time to actually read the DOJ reports on those departments.) Tellingly, Sessions’s announcement came on the same day as a big Buzzfeed investigation into a single Chicago cop who is accused of framing more than 50 people for murder.

The evidence on just how well consent decrees actually work in the cities where they’re implemented is mixed. But even if Sessions’s reviews doesn’t touch the consent decrees already in place, he has already promised to end the most important policies associated with them.

Often, the most important part of a consent decree isn’t the decree itself but the investigation and report that lead to it. The Justice Department reports on police abuse in Chicago, Baltimore, Ferguson and Cleveland weren’t just damning and outrageous, they gave voice to what minority communities in those cities have been saying for years. They created a record. They legitimized the abuses of marginalized people who never had the platform to be heard. These are also official, federal government publications that local activists and public officials can cite to spur reform. The Justice Department report on Ferguson has been instrumental in informing the reforms there, not just through the consent decree but also through state legislation, local ordinances and other lawsuits brought on behalf of the people harmed by government abuse in St. Louis County.

Another important but less measurable impact of consent decrees is simply the idea of having at least one agency within the Justice Department dedicated to defending civil and constitutional rights — where government employees work full time not to put people in prison, but to monitor and oversee police officers and prosecutors. We need an agency to “watch the watchers.” That’s a healthy thing in a democracy.

In a recent piece for the Marshall Project, longtime Justice Department police investigator Christy Lopez wrote about another benefit of these programs — the idea that they can establish a model for good policing.

Consent decrees also serve as both beacons and touchstones that instigate broad positive change throughout policing. That’s crucial in a nation with more than 15,000 state and local law enforcement agencies — and only about 70 Department of Justice pattern-or-practice investigations in 20-plus years . . .
While this broader impact is difficult to quantify, one can go anywhere in this country and see it’s real. During the six years I spent investigating police departments and negotiating consent decrees for the Justice Department’s Civil Rights Division, I cannot remember attending any gathering related to policing when I wasn’t approached by someone from a place the Justice Department had never investigated and probably never would who still said consent decrees had improved policing in their city.
There was the earnest lieutenant eager to tell me of changes that his department made to training and use-of-force reporting; the community leader who told me how he and others had convinced town officials to change the way fines and fees are collected after pointing them to our Ferguson consent decree; the sergeant telling me she’d “read every one” of our consent decrees and kept her chief apprised to ensure their department had mechanisms to detect and respond to incidents of officer misconduct. Law enforcement officials sometimes sent me new policies and trainings revised after reviewing our consent decrees.
Justice Department police consent decrees, created with input from national police experts, local police officers and interested community members (and affirmed by local legislatures) inspire the creation of best practices that can be implemented to restore police legitimacy and avoid the tragic incidents that have roiled too many communities the past several years. Consider how New Orleans, required by its consent decree to provide peer-intervention training to officers, responded by creating its EPIC program to teach officers how to step in and prevent excessive force and other police misconduct before it occurs. That program is now poised to become a national model.

Ronal Serpas was police chief of New Orleans when that consent decree was implemented. He now heads up a group called Law Enforcement Leaders, which advocates ending our over-reliance on incarceration and fighting crime with smart policing and strengthening police-community relationships.  When asked for comment on the Sessions announcement, a representative for Serpas sent a statement. “I’ve seen firsthand that consent decrees have become a key tool for some departments. They can provide important guidance when change has been hard to achieve in other ways.”

Sessions has already said he intends to end investigations of local police departments. All of these ancillary benefits likely end with that decision. At best, we’ll be left with those consent decrees that are currently implemented by federal judges, which again, have a mixed record of success.

Finally, we can’t forget the glaring hypocrisy here. Last month, this same Jeff Sessions threatened to cut off funding to sanctuary cities. As we pointed out here at The Watch, this is a policy opposed by groups such as the International Association of Chiefs of Police and that police leaders in cities with large immigrant populations have repeatedly and consistently said will hamper their ability to fight crime. The hypocrisy is only compounded by the fact that immigration enforcement is clearly a power that the Constitution delegates to the federal government, not the states or municipalities. At the same time, the federal government is obligated to protect our 14th Amendment rights when states violate or refuse to do so. Sessions wants the federal government to punish cities for not doing the feds’ job — enforcing immigration law. Meanwhile, he want the federal government to shirk its constitutional obligation to protect the rights of citizens when those rights are routinely violated by local law enforcement.