Mimesis Law
27 May 2017

Damning DoJ With Faint Praise

Feb. 3, 2017 (Fault Lines) – The Marshall Project has a treat for us. Christy Lopez, fresh off her job at Obama’s DoJ leading investigations into police departments accused of systematically violating people’s rights, has an op-ed defending what she and her former boss have been doing for the past seven years: arranging for “consent decrees,” federally imposed agreements that force cities with rogue PDs to implement DoJ-picked reforms.

Attorney General nominee Jeff Sessions, a states’-rights guy, isn’t a huge fan and has said he wants to discontinue the practice. But Lopez has been around the block. She wasn’t just a Civil Rights Division official: a federal court appointed her to monitor Oakland’s compliance with its consent decree during the Bush years. If anyone can make the case for the feds fixing local PDs, it’s her. Let’s see what she’s got.

Lopez begins with one of her own accomplishments, the investigation into Chicago PD that was recently in the news.

Earlier this month, the department’s Civil Rights Division completed a 13-month investigation that found a long-entrenched pattern of unlawful force in the Chicago Police Department. The probe found that the behavior persisted despite decades of reform efforts and may be contributing to Chicago’s spiraling murder rate.

If any of what “the probe found” strikes you as blindingly obvious, that’s because you read a paper every now and again. For the most part, DoJ’s report succeeded only in restating what an army of journalists had already written about. Worse, it did so without the context and detail that are necessary for a better understanding of police misconduct. As a source of new information, it was a disappointment.

But of course, that’s not why the report was created. It’s a means to an end: by concluding that Chicago PD engaged in a “pattern or practice” of misconduct, the report gives DoJ the leverage to threaten to sue the city under 42 U.S.C. §14141(b) and obtain a consent decree as an alternative to a lawsuit. This is the practice that Lopez defends.

To its credit, Chicago agreed to a consent decree — a court-enforced agreement with DOJ — to improve its police force. Things are at last looking up for those who support lawful and effective policing in Chicago, but only if Sessions is willing to learn from the DOJ career attorneys who can show him how crucial consent decrees are.

That’s an odd and rather condescending thing to say. Lopez worked for Democratic DoJs for twelve years, first under Clinton and then Obama, while Sessions is a fourteen-year veteran who cut his teeth as an AUSA under Carter and served as U.S. Attorney for the District of Alabama under Reagan and Bush Sr. If Sessions isn’t a “DoJ career attorney,” who is?

Lopez gives a few examples of “how crucial consent decrees are,” taken from a Civil Rights Division report released last month.

An independent study of the Los Angeles Police Department consent decree found it resulted in broad improvements, including meaningful reform of police practices and increased trust among the public. And, to allay Sessions’ concerns that consent decrees harm officer morale, it’s worth noting that LAPD officers had greater job satisfaction after the consent decree was implemented. An academic analysis of police departments in Los Angeles, Cincinnati, and Pittsburgh found that mandated reforms are likely to result in police departments with more effective accountability infrastructure, better training, and policies that reflect policing best practices.

Less formal analyses are equally compelling. Detroit for instance, found that officer-involved shootings dropped from 47 in the five-year period before its consent decree to 17 in the five-year period after.

The problem with this argument is subtle. Lopez cites studies that show some police departments complied with their consent decrees for the proposition that the consent decrees reformed their unconstitutional behavior. But whether that’s true depends on two things: did the PDs actually mend their ways and, if so, is there a connection between the change and DoJ’s requirements?

The answer to the second question’s not as obvious as it may seem. Calling a government-mandated policy change “reform” doesn’t make it so, and there’s good reason to be skeptical of the contents of consent decrees.

Baltimore’s new reform agreement-in-principle is an excellent example. It calls for sensible changes, like the one requiring BPD to educate its cops on dealing with the mentally ill and another expanding the use of de-escalation techniques. But they’re few and far between, stuck in among demands that range from the banal (be courteous to residents) to the vague (adopt a community-oriented approach to policing) to the risible (pinky-promise to respect residents’ First Amendment rights.)

Worse, even the recommendations that reformers can work with are often problematic. The mentally ill are one thing, but it’s doubtful if any amount of “better training” can give cops who arrest people who annoy them and throw schoolchildren against walls an epiphany on the value of constitutional rights.

So do PDs on the wrong end of consent decrees actually clean up their acts? Tough to say. Take the LAPD, which Lopez calls one of Main Justice’s success stories.

While a 2009 Harvard study did find broad compliance with a 2000 consent decree, increased resident satisfaction with the police and a drop in crime, the good news came at a price. Pedestrian and car stops skyrocketed, and while the proportion of stops that resulted in an arrest rose even more sharply, the percentage that led to a citation plunged. What’s more, in 2009, two-thirds of pedestrian stops still resulted in no arrest, implying less than rigorous standards for detaining people.

Use-of-force incidents continued to rise in some districts. For what it’s worth, crime’s back up. And as the Washington Post reported in 2015, LAPD’s implementation of the decree resulted in massive cost and time overruns. It was originally slated to cost $115 million and last five years; a city official estimated the final bill to taxpayers at $300 million, and the decree was only lifted in 2013.

And this is one of DoJ’s best results! As Lopez acknowledges, they’ve also had less successful cases, including five cities where they had to go back to finish the job after the first visit didn’t pan out.

In [DoJ’s first investigation of New Orleans police], as in the first investigation of Cleveland’s police department, the Justice Department did not insist upon a consent decree. Subsequent tragic deaths, including those on the Danziger Bridge in New Orleans and that of young Tamir Rice in Cleveland, delivered painful lessons. The Justice Department reinvestigated both police departments and, this time, all parties agreed to consent decrees.

This is the most misleading part of the op-ed. DoJ reform agreements come in two flavors: “court-enforceable” consent decrees that are actively overseen by a federal judge and, usually, a court-appointed independent monitor, and those that aren’t, known as “memoranda of agreement.”

Lopez doesn’t mention it, but back in ’04, DoJ absolutely did force Cleveland to take a deal. It’s just that Main Justice opted for the memorandum, something its own guidelines say should only happen when “the issues to be addressed are relatively narrow” and the department can be trusted to largely fix itself. As Tamir Rice’s killing proved, the feds were wrong on both counts.

Worse, DoJ didn’t just pick the wrong tool for the Cleveland job. It botched the execution. Memoranda of agreement are contracts between the feds and police departments, and absent court enforcement, it’s up to Main Justice to hold the cops to their word. So what happened? As the feds tersely acknowledged in a report from 2014:

In 2005, we found that Cleveland had abided by that agreement and it was terminated.

Is there anything to excuse the feds signing off on a reform that, as was made abundantly clear in recent years, never happened? Were they duped? Did they just not care? With a track record like this, ambiguously successful at best and disastrous at worst, is it any wonder that Sessions is skeptical of the value of federal intervention?

Lopez ends on a sort of uplifting note.

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.

That’s one way to look at it. The “glass half empty” view, recently put forward by Fault Lines contributor Sam Bieler, is that the feds can only ever fix a tiny chunk of America’s misbehaving PDs. One way or the other, local government is going to have to step up to the plate.

But there’s another problem here. Lopez is arguing for ongoing federal intervention, as opposed to Session’s solution of letting states and municipalities handle their own affairs. But Obama and his AGs, all historically aggressive proponents of consent decrees, have been creating “beacons and touchstones” for eight years. Not good enough? Is Lopez insecure about her own legacy?

And as Sam points out, the places with the most notoriously abusive police departments are overwhelmingly Democratic. Is it really the case that the only thing keeping the mayors of America’s blue cities from enacting reform is a lack of moral leadership from Sessions, a “racist,” and President Trump, who everyone knows is “literally Hitler”?

There’s damning with faint praise. And then there’s mounting a defense of a controversial DoJ practice that amounts to “maybe, in a handful of cases and sometimes even on the first try, DoJ produced outcomes that weren’t totally atrocious.” The sad truth is that if Sessions were to break with his predecessors’ approach to criminal-justice reform, there’s little to suggest it’d be a bad idea.

5 Comments on this post.

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  • Morgan Greene
    3 February 2017 at 9:55 am - Reply

    Yup. Lemmings over a cliff.

    • David Meyer Lindenberg
      3 February 2017 at 11:23 am - Reply

      Heh. Ain’t that the truth.

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