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What Jeff Sessions’s final act in office means for policing in America

Cutting consent decrees could cripple police reform.

Jeff Sessions at Justice Department in Washington on Oct. 26, 2018. (Bloomberg) (Andrew Harrer/Bloomberg)

On his way out the door after being fired by President Trump, Attorney General Jeff Sessions did one last thing to seal his legacy at the Justice Department: he issued a memo. His primary target? Consent decrees, which aim to bring oversight to local police departments with historical patterns of discriminatory policing and improper use of force. The memo outlined policies that would make it far more difficult for the federal government to use these decrees.

Such a move by Sessions should not be a surprise. He opposed consent decrees from the beginning of his tenure as attorney general. He has long opposed federal oversight of local law enforcement, claiming consent decrees violate local sovereignty, undermine police morale, increase crime and unfairly punish entire departments for the actions of an individual officer. Sessions found consent decrees so abhorrent that he ordered reviews of existing agreements that the Obama administration made with police departments in Baltimore, Chicago and Ferguson.

But Sessions’s action on November 7 went a step further in his battle to neuter consent decrees. It reflected his effort to insulate the police and ensure they remain accountable only to themselves.

To understand the danger of weakening the ability of the Justice Department to initiate and enforce consent decrees — which many believe to be the most effective available tool in limiting police power — we need to look at Los Angeles, the city that spurred efforts to give the federal government power to enter into consent decrees with local municipalities. Its police department was under a consent decree from 2000 until 2013. Los Angeles’s experience shows that undermining consent decrees ensures the power of the police will not only remain intact but also continue to grow with potentially deadly consequences.

Coming on the heels of the 1991 Rodney King beating, the 1992 rebellion and the exposure of the Rampart Scandal in 1997, the Los Angeles Police Department (LAPD) could no longer escape the movement for external oversight and regulation that anti-police abuse activists had been building since the 1960s. The Justice Department, using legislation passed in the wake of the King beating that permitted the Civil Rights Division to sue cities with a history of discriminatory policing, initiated an inquiry into the department in 1996 in response to continued complaints of the excessive use of force.

The investigation led the Justice Department to threaten to file a civil rights suit against Los Angeles and the LAPD. Crucially, the investigation led then acting Assistant Attorney General Bill Lan Lee to accuse Los Angeles police of “engaging in a pattern or practice of excessive force, false arrests, and unreasonable searches and seizures in violation of the Fourth and Fourteenth Amendments to the Constitution.” In response to the proposed suit, the city had two options: going to trial, which risked further exposure of the police department’s corruption, insularity and unaccountability, or agreeing to a consent decree with the Justice Department. The City Council overwhelmingly agreed to voluntarily accept federal oversight and enter into a consent decree.

The consent decree gave the federal district court jurisdiction to monitor the department’s progress in implementing reforms in nine major areas, including management oversight, use-of-force training and community outreach. Most importantly, the agreement required annual Integrity Audits to ensure compliance. It was, as some experts believed, “one of the most ambitious experiments in police reform ever attempted in an American city.”

Though flawed because it did not demand changes to the power of the police within the city’s governing structure, the consent decree led to oversight of a department that had systematically opposed any semblance of external control or regulation since the end of World War II. Newly appointed Chief of Police William Bratton, a pioneer of computer statistics (Compstat) policing and a devotee of the broken-windows philosophy, worked to implement the reforms required by the consent decree. In a departure from his predecessors, Bratton seemed willing to accept external scrutiny and to work with groups traditionally at odds with the police.

Bratton hoped to reestablish trust between the LAPD and the community through what he called “public trust policing.” He worked not only to repair the relationship between the department and the city’s elected officials, but also to transform how officers viewed their job. Bratton’s public trust policing, in theory, promoted community engagement and service, a model of policing that challenged the LAPD’s ingrained us-versus-them culture.

Federal oversight eventually led to nominal compliance. By the end of 2010, there was a growing consensus among local policymakers and law enforcement officials that the department had improved policing in the city and fulfilled the requirements of the consent decree. One 2009 study found that civilian satisfaction with the department was up by 83 percent, crime was down, management of the department had improved and the frequency of the use of excessive force had declined every year since 2004.

In light of such evidence, Gary Feess, the district court judge overseeing the LAPD’s compliance, ended the consent decree in 2009 with a transition period requiring routine check-ins with the Board of Police Commissioners and federal judges. In 2013, Feess released the LAPD from monitoring under the transition agreement, stating, “The LAPD has fully complied with the requirements and has institutionalized constitutional and community policing.”

If the story ended there, the consent decree may have proven a success. Indeed, the initial positive effect it had in Los Angeles is precisely why consent decrees are so valuable, and need to be expanded, not curtailed.

But they are only the first step. In Los Angeles, problems continued both during and after the consent decree ended because it did nothing to change the fundamental power of the police. Reform may have led to new forms of training and use-of-force policies but did not curtail the mandate given to the police to enforce order and wage a war on crime. As a result, the LAPD used order maintenance and Compstat policing alongside new methods of big data and predictive policing to maneuver within the constraints of the consent decree, not only maintaining but expanding its authority.

The number of arrests, most notably for drug crimes and public-order charges, increased under the consent decree. Expansion of police authority under the framework of community- and broken-windows policing also reinforced racially targeted police practices. A study conducted for the American Civil Liberties Union found evidence that “African Americans and Hispanics are over-stopped, over-frisked, over-searched, and over-arrested.” Notably, police killings also reached a high of 30 in 2011 for the period between 2000 and 2017.

In recent years, activists with Black Lives Matter Los Angeles, the Stop LAPD Spying Coalition and the Los Angeles Community Action Network have criticized the police department. They shed light on the ways it continued to operate in a discriminatory manner and expand its surveillance capacities after being released from the consent decree.

Research on consent decrees established under the Obama administration has also been mixed. While there is no consensus on whether consent decrees create long-term structural changes within police departments or the nature of policing, there is evidence that federal oversight has reduced police killings and the use of force. Indeed, consent decrees have been an important tool in the long movement for police reform.

Consent decrees are imperfect and incomplete reform measures, and yet absolutely vital ones. Without the consent decree, the first step toward more meaningful reform of the LAPD demanded by activists would have been stymied.

Sessions’s memo threatens to set back efforts to enact police reform. Los Angeles’s consent-decree experience demonstrates that the only way to ensure a change in American policing is to build on consent decrees as a first step toward more meaningful change, not undermine them, as the Sessions memo intends, or see them as the final step in police reform.