The Truth About DOJ Consent Decrees
Albuquerque, Baltimore, Cincinnati, Cleveland, Detroit, Ferguson, Los Angeles, Miami, Newark, New Orleans, Portland, Seattle, and Washington, D.C. are shining examples of police reform, right? They should be. They are the products of the famed and fought for, Department of Justice (DOJ) Civil Rights Division consent decrees.
The claim is that DOJ consent decrees focus on the systemic “pattern and practice” issues of police misconduct. Gross misconduct of a police agency eventually brings enough public pressure that an investigation is launched to identify any federal law violations. Once the patterns and practices are revealed (because they always are), a report is generated. Either through voluntary agreement or a court proceeding, the agency in question will enter a decree of consent to make specified reforms. Once enough placation of the reforms are implemented in policy, everyone goes about their merry way or the city is sued and can be federally taken over. Historically, these reform measures have been significantly expensive.
Evidence or Lack Thereof
None. There is no proof that consent decrees are useful. The rhetoric surrounding them is shockingly absent of logic. Sources which we have come to rely on make weak arguments reaching for everything they can to confirm the biases that consent decrees are worth their expense and that all the hard work everyone has done to get them accomplished was not a futile effort. An example of this biases is exemplified from, traditionally reliable, The Marshall Project:
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.
The newer generation of consent decrees is just beginning to have a broad impact, but indications are these will be even more successful in bringing about constitutional policing and repairing police-community fissures.
Periodic surveys in Seattle required by its consent decree show increasing public confidence in policing.
While this broader impact is difficult to quantify, one can go anywhere in this country and see it’s real. During the six years I spent investigating police departments and negotiating consent decrees for the Justice Department’s Civil Rights Division, I cannot remember attending any gathering related to policing when I wasn’t approached by someone from a place the Justice Department had never investigated and probably never would who still said consent decrees had improved policing in their city.
Alleged professionals with scientific minds and investigation skills, blatantly relying on conjecture, perception, fabrications, projections and more to reach conclusions that could never pass scientific muster.
What does the science say?
There is not much out there with scientific rigor. Like nearly all police information, the data is either non-existent or corrupted. Here is a sample of the latest:
Section 1983 civil rights filings seem to decline in terms of risk after DOJ intervention. We do not make any claim as to the DOJ’s effect on use-of-force incidents, citizen complaints, or other potential indicators of inappropriate police behavior. And though our outcome measure is imperfect, we remain reasonably confident that Section 1983 lawsuits act as an important barometer of civil rights abuses. [1]
Seem to decline, but no claim of actual decline and that a barometer is the best it can do, are the two most important points. The science cannot say that consent decrees have any efficacy. Notably, this barometer is continually proven to be the acknowledgement of what the communities have been reporting all along. Are we going to spend a fortune because we will not believe what the residents of oppressed neighborhoods have been telling us?
Consent decrees are simply associated with a modest decrease in the risk of future civil rights filings, which may or may not be related to actual violations… Without some consideration of deeper change, we may simply be putting an expensive “band aid” on a symptom that will reappear once supervision ceases. [2]
In response to the apparent lack of evidence of efficacy, the DOJ put out some of its research, funding “studies” and cherry-picking data, called, The New Paradigm of Police Accountability: The U.S. Justice Department Pattern or Practice Suits in Context. Even here, they are grasping for any signs of confirmation:
… in the wake of the decree, “public perceptions of the LAPD are improving, the satisfaction among police officers themselves is growing, management and oversight of the police department is stronger, and the quality as well as the quantity of enforcement activity are rising.” [3]
The public perception is that these consent decrees improve justice in their towns. That is the propaganda that is proliferated, so yes, they believed the deceit. There are no indications as to how management and oversight being stronger was tied to an objective measurement and just what are quality and quantity rising in enforcement activity? Quality is getting American citizens into the prison and quantity is getting more of people there. These measurements are a continuance of the complete ignorance rampant in the policing field. For the DOJ metrics of performance to be valid, the punishment would have to be a crime deterrent, and it has been known for at least 30 years that punishment is not a deterrent. [4] Vladimir Putin knows this (in 2013):
Death penalty has been one of the most burning issues for public discussion in recent years. When it comes to cases like that, you’re tempted to drop your signature under re-introduction of the death penalty in a blink of an eye. Experts believe, however, that tougher punishment will not eradicate or cut down crime. In the Roman Empire, a pickpocket was sentenced to death. Nevertheless, the largest number of thefts occurred during these executions as they took place in crowded places. I understand that people are outraged and are demanding punishment for the culprits. But they will receive punishment. Life imprisonment is fairly effective. The conditions under which they will be kept there are far from comfortable. [5,6]
The best evidence on the DOJ’s pattern or practice initiative suggests that after implementing mandated reforms, affected departments will likely possess a stronger, more capable accountability infrastructure, more robust training and a set of policies that reflect best practices.” [3]
Note the use of the term likely. Using their own data, the best they can come up with is, likely. It is also likely that they are not thinking about what best practices are. Best practices are the friendliest version of fascism that we can muster. Best practices get Freddie Gray into the school to prison pipeline alive and well to continue to fuel the New Jim Crow. The policing which gets the outcome we want enables Freddie Gray, does not hunt him down like an animal, and stops the lead poisoning he was victim to; keeping him out of the New Jim Crow and adding to the embarrassment of America, mass incarceration.
15 years after the initiation of reforms in Washington, D.C., the monitor appointed to oversee that agreement revisited the department and found that “in large measure, the D.C. police department’s use of force policies remain consistent with best practices in policing, and the data show that there has been no surge in any type of use of force, including firearms.” [3]
More of the same fallacious ideology of, in large measure, best practices, no “surge,” just the previously acceptable levels of brutality.
Indeed, it is unlikely that a consent decree can ever make these kinds of improvements without strong and effective leadership. [3]
When something is the influencer of an action, it is the dependent variable, similar to algebra. In this case, strong and effective leadership is the dependent variable and what the evidence is correlating.
Solutions
There is every reason to believe that consent decrees will continue to be ineffective at reform and only serve as budget inflating documentation of the already known. In addition to no mention of whistle-blower protections, a newer trend seeks to make the effort even more pointless with wording to shed leadership accountability.
The first step to recovery is admittance.
Michael Wood Jr. is a police management scholar who after spending a career in the USMC and Baltimore Police Department, took to dismantling the blue wall of silence and creating the pathway to reform; a model called Civilian-Led Policing. His fight for justice has included leading the historic Veterans for Standing Rock action in December of 2016, listening to the front lines of Black Lives Matter, opposing money in politics, and elevating the voices of others. You can find Michael in hundreds of media appearances, from HBO’s Fixing the System documentary with President Obama, to The Joe Rogan Experience, to published opinion pieces in The Guardian and Baltimore Sun, and everything in-between, where he furthers the discussion on criminal justice systems and institutions, and the needs of society.
iMemberTimes is the digital newsprint of iMemberMedia. We are open to submissions and new writers.
[1] Powell, Z., Bisaccia Meitl, M., & Worrall, J. (2017). Police consent decrees and section 1983 civil rights litigation. Criminology & Public Policy, 16(2), 575–604. DOI:10.1111/1745–9133.12295.
[2] Chappell, A. (2017). Consent decrees and police reform. Criminology & Public Policy, 16(2), 571–573. DOI:10.1111/1745–9133.12302.
[3] Civil Rights Division U.S. Department of Justice. (2017). The civil rights division’s pattern and practice police reform work: 1994-present. Washington, D.C. https://www.justice.gov/crt/file/922421/download: U.S. Department of Justice.
[4] Paternoster, R. (1983). Estimating perceptual stability and deterrent effects: The role of perceived legal punishment in the inhibition of criminal involvement. The Journal of Criminal Law and Criminology, 74(1), 270–297. DOI: 0091–4169/83/7401–270.
[5] https://sputniknews.com/voiceofrussia/2013_04_25/Putin-not-in-favor-of-death-penalty/
[6] https://www.rt.com/politics/russian-authorities-oppose-penalty-918/
[7] Baltimore consent decree: https://www.justice.gov/opa/file/925056/download
[8] Chicago Agreement in Principle: https://www.justice.gov/opa/file/925901/download
Civil Rights Act, Pub.L. 42–22, 42 U.S.C. § 1983 (1871). Violent Crime Control and Law Enforcement Act, Pub.L. 103–322, 103 U.S.C. § 14141(1994).
https://www.themarshallproject.org/2017/01/30/why-jeff-sessions-should-police-the-police#.7xazrRX9R
Walker, S. (2003). The new paradigm of police accountability. Saint Louis. http://www.law.columbia.edu/sites/default/files/microsites/contracteconmic-organization/files/THE%20NEW%20PARADIGM%20OF%20POLICE%20ACCOUNTABILITY%20THE%20US%20JUSTICE%20DEPARTMENT%20%E2%80%9CPATTERN%20OR%20.pdf: Saint Louis University Public Law Review.
