Without My Consent: The Eradication of Protective Consent Decrees

By Rasheed Stewart
Associate Editor, Volume 23

The 1994 Violent Crime Control and Law Enforcement Act, passed following the publicly videotaped 1991 beating of African American motorist Rodney King by four LAPD officers and the catastrophic Los Angeles Riots a year later, gave the Civil Rights Division of the U.S. Department of Justice an extraordinary mandate.[1]  One of the law’s provisions empowered the government to sue police agencies anywhere in the country if they exhibited a “pattern and practice” of using excessive force and/or violating people’s civil rights, and to compel them, under a court enforced agreement known as a “consent decree,” to change those practices.[2] Communities in favor of consent decrees, like the city of New Orleans, have found that federal oversight of police practices result in a significant decrease in use of force incidents, due to a more thorough review process.[3]  However, not all are in favor of these court-enforced agreements; for example, conservative public officials have routinely criticized consent decrees as being ineffective.[4]  Conversely, studies have shown that fewer civil rights lawsuits are brought against state actors within jurisdictions enjoined under a consent decree, compared to the time period when the same jurisdiction was not under a court ordered decree.[5]

Despite supporting empirical evidence that consent decrees serve as constructive judicial tools,[6] U.S. Attorney General Jeff Sessions, presumably under the direction of President Trump, has sought to review (or eradicate) all existing consent decrees.[7]  Sessions, in a press release announcing significant changes to the Office of Community Oriented Policing Services, stated that control needed to be “returned to the public safety personnel sworn to protect the communities they police.”[8]  In absolute contrast is the community of Baltimore, and more specifically the parents of Freddy Grey,[9] who would not want to end federal oversight of a police department riddled with instances of systemic racial practices that severely, and fatally, harm people of color.[10]  Further, the people of Ferguson and parents of Michael Brown would not care to be subjected to unwarranted fines and sicced dogs, among other blatantly discriminatory practices in lieu of ‘watchdog’ federal overseers.[11]

In furtherance of justifying the review of existing consent decrees, Sessions stated that consent decrees employ “expensive wide-ranging investigative assessments that go beyond the scope of technical assistance and support.”[12]  His characterization of court monitored consent decrees, which have been found to promote widespread reform throughout police departments, as “going beyond the scope of technical assistance and support” is tone deaf and highly erroneous.  Assuredly, community members across the country who have experienced racial profiling and unmitigated acts of violence by law enforcement, would tend to label federal oversight of discriminatory police practices as within the ‘scope’ of the U.S. Department of Justice.

Giving more control to local law enforcement departments marred with histories of widespread constitutional violations is, in fact, not what the communities most affected by these harsh realities want.  Of course, what matters to this Administration is not what marginalized black and brown communities want to see in their own neighborhoods, but rather what Attorney General Sessions wants to see in their neighborhoods.  According to Sessions, cities under consent decrees have “seen too often big crime increases.”[13] Moreover, Sessions states that consent decrees “push back against officers being on the street in a proactive way,” because they “reduce morale.”[14]  Instead of asserting facts that pertain to the root of why consent decrees were created in the first place, such as the widespread patterns of biased policing, Sessions feels for the “morale” of local law enforcement and laments that consent decrees “push back” against officers being on the street in a proactive way.[15]

While black and brown communities continue to be harassed, profiled, and discriminated against by local police departments all over this country, the U.S. Attorney General, a man who has been labeled a ‘staunch racist,’[16] would rather “respect local control and accountability” of law enforcement, instead of serving the very people in need of protection.  Although consent decrees are not bastions of equal and just police practices, they do promote a feeling of trust, something that has long been forgotten within communities under consent decrees.  Trust that police officers who do wrong will be held accountable.  Trust that public officials see the humanity in communities of color.  Currently, there is no trust in an administration that attacks court monitored protective orders.  Nevertheless, under this administration, the needs and feelings of local law enforcement undoubtedly ‘trump’ the livelihoods of local communities.

[1] Joe Domanick, Police Reform’s Best Tool: A Federal Consent Decree, The Crime Report (July 15, 2014), https://thecrimereport.org/2014/07/15/2014-07-police-reforms-best-tool-a-federal-consent-decree/.

[2] Id.

[3] Times-Picayune Editorial Board, NOPD is under federal consent decree for good reasons: Editorial, (April 9, 2017), http://www.nola.com/opinions/index.ssf/2017/04/nopd_consent_decree.html.

[4] Benjamin Mannes, Jeff Sessions is right to roll back Justice Department consent decrees, The Hill (April 5, 2017), http://thehill.com/blogs/pundits-blog/crime/327457-jeff-sessions-is-right-to-roll-back-justice-department-consent.

[5] Tom Jackman, Do federal consent decrees improve local police departments? This study says they might, The Washington Post (May 24, 2017), https://www.washingtonpost.com/news/true-crime/wp/2017/05/24/__trashed/?utm_term=.64e3a0579e56.

[6] Id.

[7] Masood Farivar, How US Attorney General Jeff Sessions Has Rolled Back Obama-era Policies, VOA (December 30, 2017), https://www.voanews.com/a/us-attorney-general-jeff-sessions-roll-back-obama-policies/4185452.html.

[8] Office of Public Affairs, Department of Justice Announces Changes to the Collaborative Reform Initiative, DOJ (September 15, 2017), https://www.justice.gov/opa/pr/department-justice-announces-changes-collaborative-reform-initiative.

[9] David A. Graham, The Mysterious Death of Freddie Gray, The Atlantic (April 22, 2015), https://www.theatlantic.com/politics/archive/2015/04/the-mysterious-death-of-freddie-gray/391119/.

[10] Richard A. Oppel Jr., Sheryl Gay Stolberg, & Matt Apuzzo, Justice Department to Release Blistering Report of Racial Bias by Baltimore Police, The New York Times (August 9, 2016), https://www.nytimes.com/2016/08/10/us/justice-department-to-release-blistering-report-of-racial-bias-by-baltimore-police.html?mcubz=1.

[11] Matt Pearce, In a reversal, Ferguson City Council agrees to reforms and federal oversight, The LA Times (March 15, 2016), http://www.latimes.com/nation/la-na-ferguson-consent-decree-20160315-story.html.

[12] supra, note 6

[13] Merrick J. Bobb, Jeff Sessions thinks consent decrees increase crime. He’s just plain wrong, The LA Times (April 25, 2017), http://www.latimes.com/opinion/op-ed/la-oe-bobb-consent-decrees-work-20170425-story.html.

[14] Id.

[15] Eric Levenson, Here’s why police consent decrees were made in the first place, CNN (April 6, 2017), https://www.cnn.com/2017/04/04/politics/jeff-sessions-consent-decree-roundup/index.html.

[16] David M. Shapiro, No denying: Sessions’ moves revive allegations of racism, Chicago Tribune (May 15, 2017), http://www.chicagotribune.com/news/opinion/commentary/ct-perspec-sessions-0516-20170515-story.html.