Mimesis Law
27 March 2017

No More Fed Oversight? Good Riddance

November 11, 2016 (Fault Lines) – Presidents come and go, but the Marshall Project has somehow managed to remain, still telling us how to fix the criminal justice system. Maurice Chammah’s post-election write-up is a short and gloomy look at the future.

One of the Obama administration’s most aggressive civil rights tactics — the investigation and forced reform of local police departments — is poised to be upended by President-elect Donald Trump.

I don’t know about “most aggressive.” Between the Obama admin’s prosecution of whistleblowers and the journalists who published their leaks, DoE’s lawless efforts to set up due-process-free star chambers in federally-funded colleges, the President’s self-arrogated power to kill U.S. citizens without a trial, the prospect of indefinite military detentions, warrantless mass surveillance and DoJ’s penchant for confiscating innocent people’s property, it’s, you know. It’s a crowded field.

But okay, let’s say President-elect Trump stops DoJ from imposing its will on local PDs. What good have the feds been doing, anyway?

Under Obama, the investigations often took place in cities that had seen high-profile deaths of black men at the hands of law enforcement, including Cleveland, Ferguson, Baltimore and Chicago.

Consent decrees [the mechanism DoJ uses to enforce its demands] can quell tensions, unearth inequity and institute cultural change amid long-standing resistance.

“Unearth inequity?” “Inequity” is a curious choice of word, given that we’re talking about municipal governments abusing their residents. Would it really be better, as some commenters argue, if Baltimore and Chicago threw blacks and whites against walls in equal numbers? Hired a fair proportion of minority cops to do the throwing?

While DoJ’s investigations certainly do unearth misconduct, it’s fair to ask whether its reports are leading or trailing indicators of what everyone else is reporting on, often in graphic detail. And in a sense, the feds do “quell tensions,” if only by getting the New York Times to stop whining about the need to fix the backward ways of cops in Democrat-run cities. In the minds of that august newspaper’s editorial board, criminal justice reform is a simple matter of getting the feds to promise they’ll do something; whether something actually gets done, let alone something positive, is the kind of question that, sadly, far too few media types bother to ask.

Which brings us to Chammah’s last claim: consent decrees “institute cultural change.” Do they really? That might come as a surprise to the residents of Cleveland, the first city he names.

You see, Cleveland is one of five cities in the last 20 years to have had two federal investigations and two consent decrees. Back in ’04, DoJ wrapped up a brief five-year investigation into use of force by the CDP and entered into an agreement with the cops that required them, among other things, to revise their use-of-force policy and create “new procedures for reviewing officer-involved shootings.”

Fast forward to ten years later. At the very latest, the Thanksgiving ’14 shooting of 12-year-old Tamir Rice proved to America that DoJ’s intervention didn’t turn the city into a model of good policing. At that time, the feds were on the verge of completing a second investigation – unlike its predecessor, this one lasted a mere eighteen months – and in May, 2015, five months after DoJ released a scathing report on systemic Fourth Amendment violations by Cleveland cops, the city entered into another consent decree.

Here’s how the feds explained their first failure to turn CDP around:

CDP entered into an agreement with us, but that agreement was not enforced by a court and did not involve an independent monitor to assess its implementation.

So the problem was lack of oversight? Well, so what? If the consent decree didn’t provide for proper monitoring, that’s DoJ’s fault. And there’s more:

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

That’s right: instead of holding the city accountable for failing to implement DoJ’s reforms, the feds either overlooked that they were being played for fools or ignored the problem and kicked the can down the road. Federal investigators signing off on shoddy work is by no means a new subject here at Fault Lines, but it’s still rare – and remarkable – for the emperor to publicly admit he has no clothes. If this is the quality of DoJ’s work when it tries to reform rogue police departments, who on earth would conclude them going away is a bad thing?

What do local law enforcement think about the prospect of Trump taking DoJ’s boot off their necks? Chammah claims they hate the status quo:

[Consent decrees] can also rankle police who see them as heavy-handed government overstep that is largely politically motivated and expensive to implement.

“They just want to come in and take over your law-enforcement agency,” Alamance County attorney Clyde Albright told The Marshall Project last year. “They march in the door and say you are guilty of all these things. My reaction is, ‘Says who?’”

Says all the citizen reporters who get their smartphones knocked out of their hands and arrested for contempt of cop, or forced to kiss concrete on the way to school and turned into a CompStat statistic? Trailing indicator. But as for the rest of it, it’s hard to deny the cops have a point.

“Expensive to implement” is a given. And sadly, Obama’s DoJ has thrown itself wide open to accusations of being politically motivated. From the highly dubious prosecution of Virginia’s Republican governor Bob McDonnell, to Preet Bharara’s self-aggrandizing corruption witch hunts in New York, to Niketh Velamoor’s threatening Reason commenters for mouthing off about a U.S. district judge, to Loretta Lynch’s shutting down the investigation into Hillary Clinton after meeting with her husband (while continuing to prosecute sailors for the exact same alleged crimes,) there’s hardly an appearance of impropriety the feds haven’t courted.

And from a constitutional viewpoint, Obama’s DoJ has been wildly in the wrong when it sought to impose its will on certain local and state institutions. Earlier this year, the acting chief of DoJ’s Educational Opportunities Section, Shaheena Simons, ordered the University of New Mexico to adopt an unconstitutional speech code – on pain of prosecution.

Then there’s Main Justice’s miserable track record on everything from Brady and Giglio disclosure to telling the truth to judges to not flagrantly spying on defense attorneys. It’s not just that DoJ delivers poor results in places like Cleveland. The bigger problem is that they have no moral authority to tell cops how to behave.

The good news for people in cities with abusive police departments is that there’s no reason why they should need the feds who, time and time again, have proven to be failures. Misconduct on the part of municipal PDs is the quintessential local-government problem. Fight city hall. Vote out obstructive administrations. Get the new mayors to install better chiefs. Fight police unions. It won’t be easy, but unlike putting faith in the feds, it works. If Trump’s election is the wake-up call people need – so be it.

12 Comments on this post.

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  • SPM
    11 November 2016 at 11:23 am - Reply

    As this author states, I think it is a bit early to suggest that Trump will reverse progress in the criminal justice system. First, as shown in this article, it is highly debatable whether there was much progress under Obama in the first place.

    Second, there has been a serious shift in attitudes toward law enforcement. When I was in high school decades ago it was pretty simple: Republicans like cops, Democrats like criminals. Today it is not nearly that simple. Note that while Trump won Maricopa County, those same voters kicked Arpaio out of office. My conservative friends are far more scathing when it comes to things like “civil forfeiture” and 4th amendment violations than my more liberal friends. Finally, in many ways Anthony Scalia supported the rights of those facing criminal prosecution far more than the more liberal members of the Supreme Court.

    As one of my conservative friends puts it, “we like cops, we hate law enforcement.” While they may be supportive of the individual cop who is either killed or killer, that support does not necessarily apply to the “criminal justice system” as a whole.

    • David Meyer-Lindenberg
      11 November 2016 at 12:41 pm - Reply

      The author is glad you liked the article, and would like to remind his other readers that he’s far too illustrious to be addressed by name.

      • shg
        11 November 2016 at 1:12 pm - Reply

        Want me to reveal the author’s nickname (and preferred pronouns), just in case they’re needed?

        • David Meyer-Lindenberg
          11 November 2016 at 4:01 pm - Reply

          Don’t listen to xim! Xe just wandered in here off the street.

    • Greg Prickett
      11 November 2016 at 4:47 pm - Reply

      @SPM, When I was in high school decades ago it was pretty simple: Republicans like cops, Democrats like criminals., that’s about the dumbest thing I’ve ever heard. I was a cop for over 20 years, and I dealt with both Republicans and Democrats, rich and poor, young and old. No one, out of any group, liked crime or criminals. Democrats were just as adamant about criminals being arrested as a member of the GOP. The difference I saw was that the rich guys in Highland Park near Dallas, Beverly Hills, or the Westchester Country Club area of NY is that they wanted the cops to stop blacks and hispanics who were in the neighborhood, whether the officer had reasonable suspicion or not. So did the residents of the housing projects where I started in police work, they just wanted us to run the drug dealers, hookers, and thieves out of the area.

      The only real difference I saw was that Republicans would pass laws that would let the police do more, and try to expand exceptions to Constitutional rights. The Democrats took better care of the officers pay and benefits. Other than that, there’s no real difference.

  • bacchys
    13 November 2016 at 8:53 pm - Reply

    It’s not that they don’t need the Feds, who do have a constitutional duty to protect the people from abuses by the states, but that the Feds have been mostly useless.

    • David Meyer-Lindenberg
      14 November 2016 at 6:18 am - Reply

      You’re lucky I’m undercaffeinated and nicer than Scott.

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