Is Police Reform Over With AG Sessions? Only For Cowards
January 23, 2017 (Fault Lines) – Donald Trump’s inauguration has prompted a great wailing and gnashing of teeth over the many ways the United States is about to become less great. Now, with Jeff Session’s confirmation all but inevitable, the most piercing wails have been reserved for the fate of the Civil Rights Division of the Department of Justice, which oversees everything from voting rights to police abuse litigation.
It is this latter charge that has commentators particularly worried: given Session’s hostility to federal investigations of police, pundits expect a dramatic fall-off in the number of cases DOJ will bring. Will this be a substantial roadblock to police reform? Only if state and local leaders display the lack of backbone they have to date.
The Civil Rights Division has three main tools for reforming police departments. 42 U.S.C. §2000d and 42 U.S.C. § 3789d(c)(3) prohibit agencies who receive federal funding from discriminating on the basis of race, color, religion, national origin, or sex. Violate either of these, and the Attorney General can bring a civil suit and compel reforms.
Alternatively, the feds can launch an investigation under 42 U.S.C. §14141 which makes it unlawful for law enforcement and corrections officers to violate constitutional rights, a possibility so unlikely and remote that Congress only got around to banning it in 1994. The magic phrase here is that agencies must be engaged in a “pattern or practice” of rights violations. Once again, the remedy is a civil suit.
When the feds come a-knocking, they first investigate the department. When this is complete, the department is either absolved of the charges, or a report is made, highlighting a series of issues with the department that could be learned only by trained investigators or those with an internet connection.
If the Civil Rights Division determines that a police department has discriminated or violated constitutional rights, a city will usually negotiate a set of reforms rather than take their chances with an expensive lawsuit. The resulting agreement is usually put into a consent decree, which a federal court monitors though some departments end up with a less severe memorandum of understanding or settlement agreement, which may include similar terms, but is not actively overseen by a federal court.
Since 1996, the DOJ has entered into 40 consent decrees or settlement agreements. The effectiveness of this process varies: there are success stories like the DC Metropolitan Police Department, and then there’s the Cleveland Division of Police: the department so nice, the DOJ forced them into settlements twice.
The fact that there have only been 40 agreements or decrees, and about half of those during Obama’s presidency, is the first clue about the weakness of these investigations as a reform tool. With more than 17,000 police departments in the country, there is simply no way for DOJ to investigate or monitor any but the absolute worst offenders. It might pick off a few bad eggs, but it was never going to be the tool that delivered large scale reform.
That said, a consent decree can be a valuable tool that is likely to see a lot less use, but its disappearance doesn’t have to be the death knell of police reform. Most power over police is concentrated at the state and local level. Don’t like what President Trump is saying about police shootings? Your city council can replace all the cops’ guns with feather dusters if you’ve got the votes.
Nor should getting the votes be impossible. Looking down the list of police departments that found themselves on the business end of a consent decree, one is immediately struck by how blue the list is. Baltimore, which entered into its consent decree a mere nine days ago, hasn’t had a Republican mayor since 1967 or even a Republican council seat since 1942. Portland, whose department entered a consent decree in 2012, sits in one of the few states completely controlled by Democrats. Simultaneously, most of the loudest voices for police reform are, if not Democratic, at least some flavor of left.
So, if many of the police departments in need of reform are controlled by Democrats, at the local level at least, and often at the state level as well, and if the Constitution gives these ostensible reformers the tools for the job, why such mourning for the consent decree? Cowardice.
Police reform is a messy business. Activists criticize you for not going far enough. Then, when a crime story makes headlines, police and their unions shriek that your reforms are turning the city into a warzone. Even worse, reforms tend to be expensive, which means some other cause loses out in the city budget. What mayor or governor wants that headache in their lives?
Bringing in the feds short-circuits this tedious political process. DOJ comes to town and using a potential lawsuit as a bludgeon, forces everyone to hold hands and make nice. If something goes wrong or money has to be spent, city leaders don’t take the blame, it’s those mean federal lawyers and judges, who, safely beyond the reach of elections, don’t care much about what troublesome locals think about them.
With political cover like that, why wouldn’t you bring in the feds? Indeed, some investigations actually start when a mayor drops a dime on his own department. Sure, they could take up those reforms themselves, but then they might risk doing something unpopular. Far easier to let the feds negotiate the things mayors should do themselves.
So, no – even if Sessions is confirmed and radically curtails Civil Rights Division investigations, it’s not the end of police reform. It’s just the end of state and local leaders hiding behind the feds if they want to do it.