Alabama Sen. Jeff Sessions, whose confirmation hearing to become the next attorney general begins today, is no fan of federal consent decrees, one of the practices that have become the hallmark of the Justice Department’s civil rights work over the last eight years.
Following the 1991 police assault of Rodney King in Los Angeles, the DOJ started investigating law enforcement agencies, often following high-profile incidents, looking for a “pattern or practice” of excessive force and civil rights violations. Upon releasing its findings, the DOJ would often sue or threaten to sue the agency in question, pushing it to adopt reforms through settlements or court-enforced agreements.
Since then, dozens of police departments, as well as jails and prisons, have come under DOJ investigation, some more than once, but it wasn’t until the Obama administration that the department began to pursue reform more aggressively and substantially involve local communities in the process. In recent years, the DOJ’s Civil Rights division issued one scathing report after another, forcing cities like Ferguson, Missouri, and Baltimore to acknowledge widespread and systemic bias and abuse by their police departments. Increasingly, cities and police departments themselves have been preempting investigations and asking for DOJ intervention through “voluntary reviews” — a less litigious alternative to consent decrees carried out under the department’s Office of Community Oriented Policing Services (COPS).
During the Obama administration, the Civil Rights division — which Attorney General Eric Holder repeatedly referred to as the DOJ’s “crown jewel” — opened 25 investigations of law enforcement agencies, resulting in 19 agreements and 14 consent decrees. But President-elect Donald Trump has called the push for greater police accountability a “war on police,” and Sessions, who if confirmed would be in charge of overseeing such investigations, has said they are an intrusion on local authority and an overreach by the DOJ.
“One of the most dangerous, and rarely discussed, exercises of raw power is the issuance of expansive court decrees,” he wrote in the introduction to a 2008 policy paper on the practice. “Consent decrees have a profound effect on our legal system as they constitute an end run around the democratic process.”
With less than two weeks to go until it takes over, the next administration’s hostility towards the civil rights work of the DOJ, and criminal justice reform more broadly, has advocates and communities dealing with police abuse worried they will lose federal support in their fight for more accountable law enforcement. That’s especially true in cities like Chicago and Baltimore, where DOJ investigations or consent decrees are pending, as well as in places where residents and elected officials have asked the department to intervene.
“The Obama administration can begin investigations and require the new administration to follow up, but there’s nothing they can do about the way the new administration will conduct those investigations,” said Jeffery Robinson, an ACLU deputy legal director working on criminal justice and racial justice issues. “There are investigators that if the police say, ‘There’s nothing here,’ they’ll just say, ‘Fine, we don’t need to look any further.’”
“If Jeff Sessions is the attorney general, it is up to him to determine whether to start an investigation of a local police department that could lead to a consent decree, and his view is that the federal government shouldn’t do that,” he added. “The real concern is that the DOJ will simply walk away from its responsibility to police the police.”
Running Out of Time
The prospect of a DOJ that will leave them alone is welcome news to some in law enforcement.
Milwaukee County Sheriff David Clarke — a boisterous Trump supporter and rumored pick for a spot in his administration — put that plainly in a Facebook statement in response to a local congresswoman’s call for the DOJ to investigate the Milwaukee County jail he oversees, where four people, including a newborn, have died since April.
“After January 20, 2017, Sen. Jeff Sessions will become the new attorney general of the U.S. Department of Justice,” Clarke said in the statement. “He will take the partisan politics out of decision making at DOJ.”
In December, Rep. Gwen Moore shared a letter in which the DOJ said it was “considering” whether an investigation of the jail might be necessary. But Clarke, who blamed the victims and threatened the county’s medical examiner over the jail deaths, called the possibility of a DOJ investigation “fake news” and said Rep. Moore “spends too much time embracing criminals.”
“Sheriff Clarke has indicated publicly that he’s not concerned about any legal liability because he’s going to have Jeff Sessions for attorney general,” Moore told The Intercept. “He thinks he can get away with it.”
Moore said she can’t blame the DOJ for not being able to pursue an investigation “at this late date” — though she still hopes they will announce one, forcing the next administration to at least follow up. “This is not going to go away because we’ve had a transition,” she said. “The baby’s still dead, the man is still dead, Sheriff Clarke is still the sheriff, and I’d be terrified if my son, daughter, loved one, or any of my constituents were in jail under his authority.”
A spokesperson for the DOJ declined to comment on whether the department plans to pursue that investigation and on pending cases — including in Chicago, Baltimore, Orange County, and Louisiana. But both the civil rights division in charge of investigations and the COPS office leading voluntary reviews showed no signs of slowing down their work — in some cases even appearing to rush to complete it before the next administration takes over.
Last month, COPS announced a voluntary review of the St. Anthony, Minnesota, police department following the fatal shooting of Philando Castile during a traffic stop last summer. DOJ representatives are set to meet with community members there this week.
Meanwhile, the findings of two of the DOJ’s most anticipated reviews — a pattern and practice investigation of the Chicago police department and a voluntary review of the Milwaukee police department, launched after the killings of Laquan McDonald and Sylville Smith respectively — are also expected to be released before the next administration takes over, though the department declined to confirm whether that will happen.
In Baltimore — where the DOJ issued one of its harshest reports to date, following Freddie Gray’s death of a severed spine after officers tossed him unrestrained into a police van — Attorney General Loretta Lynch has made clear she hopes a consent decree will be agreed upon before President Obama leaves office.
“My honest opinion is that if it’s not signed before the next administration, there won’t be a consent decree,” said Baltimore City Councilman Brandon Scott, who wrote a letter to Baltimore’s mayor Catherine Pugh, warning that delaying the agreement would be “irresponsible.”
“The city is committed to police reform and folks want to see that happen, but we know that getting this part done with the DOJ is paramount to that,” he told The Intercept, adding that he expects police reform just won’t be a priority for the next administration.
“Folks have been fighting for police reform before the DOJ took up this issue, and we’ll be doing it after,” Scott said. “But it’s going to be up to us, local and state legislators, to keep that plane going and carry it ourselves.”
A Limited Tool
The next administration will inherit pending DOJ investigations and consent decrees — but that’s no guarantee that they’ll pursue those investigations aggressively and seeking the input of the community the way the DOJ has done in recent years, nor that they’ll reach meaningful agreements, with provisions in place to test compliance and ensure reform actually takes place.
In fact, before the current administration moved to strengthen the consent decree process, investigations rarely sought input beyond police departments themselves and consent decrees didn’t do much to ensure change. “Those agreements were not very effective, because they didn’t contain the basic tools of engaging the community and having robust provisions,” said Jonathan Smith, who for five years led the Special Litigation Section of the DOJ’s Civil Rights Division, in charge of pattern and practice investigations. “It’s not just about the number of investigations or even the number of agreements they reach. It’s about, what do those agreements actually say? And do they have the effect of bringing about meaningful reform?”
In several cities — like Cleveland, Miami, and New Orleans — the DOJ was back in town just a few years after an earlier consent decree failed to change anything. But this time around the agreements it entered were stronger, and the community more involved, said Smith, who thinks cities where decrees were finalized and are now in the hands of judges and independent monitors are those more likely to weather a potential withdrawal of federal support.
That’s the case for Cleveland, for instance, which first entered into an agreement with the DOJ in 2004, after an investigation into its police department’s use-of-force record. Less than a decade later, the DOJ was back with another report finding ongoing use-of-force issues, and following the police killing of 12-year-old Tamir Rice in November 2014, the city once again agreed to undertake a series of reforms.
Among those reforms was the institution of the Cleveland Community Police Commission, a body made up mostly of civilians tasked with drawing reform plans for the city. That process is slow and challenging, but it won’t be affected by a change of DOJ leadership, Mario Clopton-Zymler, the commission’s co-chair, told The Intercept.
“The judge said that regardless of what administration comes in, as long as the consent decree is in place he’s intent on enforcing it,” he said, referring to Solomon Oliver, chief judge of the Northern District of Ohio, who is overseeing the agreement.
“This consent decree process in Cleveland has already made a mark in how people think about policing and how community engages in the police process,” Clopton-Symler added. “Consent decrees processes for departments that have issues of unconstitutional policing should happen and should be encouraged.”
That is not to say DOJ investigations and consent decrees, even the more robust ones, are a satisfactory solution by themselves. As one strongly-worded report after the other was released in recent years, a certain degree of disillusion and cynicism gripped communities who saw the federal government validate the concerns they had long voiced yet still fail to accomplish reform.
Part of the problem is that the DOJ’s authority is limited to constitutional violations, and that establishing widespread patterns of discrimination is often easier than holding any individual officer accountable over civil rights violations. Even as it indicted their departments, the DOJ still did not bring charges against the officers who killed Michael Brown in Ferguson or Freddie Gray in Baltimore. A DOJ investigation of the officers who killed Eric Garner in New York, in July 2014, remains pending , and the department declined to say whether it will conclude before the next administration takes over.
“Our authority was to address constitutional violations and the Constitution is shockingly limited, it gives police extraordinary powers,” said Smith. “There needs to be a change in the way in which we think about policing that makes police a democratic institution that is effective and responsive and accountable. That’s something the DOJ can’t impose; the DOJ can say, you have to use force consistently with the Constitution, but there’s a lot of force that officers can use that’s consistent with the Constitution that is bad and shouldn’t be used.”
“There’s this gap between what’s lawful and what’s right,” he added. “What this next administration will do to give police greater constitutional authority and to tolerate a broader range of behavior as lawful worries me a great deal.”
Politics vs Justice
Smith worries the next DOJ administration will abandon its more “cutting edge” civil rights work — on criminal justice issues like policing and solitary confinement, but also on fair housing, LGBT rights, and religious discrimination. He predicts the DOJ will reverse some of the legal positions it adopted in recent years and withdraw to nonpartisan and uncontroversial investigations. And he anticipates a “pretty substantial exodus” of current DOJ staff, though, he added, “there’s an honor in staying and trying to purse as much of the important work as you can.”
President-elect Trump, for his part, has been vague about his plans for the DOJ, but he suggested previously that he might instruct his attorney general to investigate Black Lives Matter activists. “He has to have a law to prosecute them under, and as far as I know there’s no law against being black and there’s no law against being an activist,” Robinson, of the ACLU, said. “If he wants to try and come up with trumped up charges against Black Lives Matter activists, he should expect a vigorous response; we’re not going to put up with that.”
But the prospect of a DOJ under the helm of an attorney general whose nomination has been opposed by hundreds of law professors, lawyers, and civil rights advocates, has raised growing fears about the politicization of justice under the next administration — something Republicans have long accused President Obama of doing.
“For nearly eight years the Justice Department has twisted the Constitution and the laws passed by Congress to further the president’s liberal agenda,” Texas Senator John Cornyn said in a statement welcoming Sessions’ nomination. “It has put politics ahead of national security, and demonized those who protect us. It’s time to end the politicization of the Justice Department and start defending the rule of law.”
Smith rejected the accusation and countered the politicization of the DOJ is about to start now.
“We went into Newark when Cory Booker was the mayor, but we also went after Joe Arpaio in Phoenix. We went were the facts took us,” he said, adding that he never once felt pressured to pursue or drop a case for political reasons. “I had mayors say, ‘I’m a liberal mayor, why is the Obama administration investigating me?’ And I was able to say, politics has nothing to do with it. This administration was incredibly careful not to let politics shape its enforcement decisions.”
“I think that’s about to change.”