Less than two weeks before former US Attorney General William Barr announced his resignation on December 14, the top cop jammed through a regulatory amendment making it more difficult for federal prosecutors to establish court-enforced independent watchdogs—whose purpose is to hold accountable law enforcement agencies with a history of unconstitutional policing.
The rule change requires that the deputy or associate attorney general must greenlight any US Attorney Office looking to pursue a consent decree—a court-enforced civil agreement between federal and regional jurisdictions—that would subject the defendants (like the Baltimore Police Department) to court-based compliance monitoring and “long-term structural or programmatic obligations, or long-term, indeterminate financial obligations.” It was proposed December 4th and became effective December 28th.
The last-minute change will bestow significant authority regarding police reform to President-elect Joe Biden’s unnamed picks for lower-level Department of Justice (DOJ) positions. Whomever they are, his appointees will likely usher through consent decrees. Biden has already made rolling back the current DOJ’s policies on the matter a major part of his criminal justice platform. While a Senator in the 1990s, Biden spearheaded the notorious crime bill that also authorized the DOJ to sue local agencies for unconstitutional policing.
A Last-Minute Change With Long-Lasting Effects
Described as “the dominant police reform effort in the nation” by Politico, consent decrees between the federal government and law enforcement agencies emerged in the years following the 1991 police murder of Rodney King. As the Black Lives Matter movement took off and cities rose up against police terror, former President Barack Obama’s DOJ created consent decrees with numerous local police agencies coming under scrutiny, like the one in Ferguson, Missouri involved in the killing of Michael Brown.
Cleveland’s police department, for instance, agreed to one in 2014 after officers fatally shot two unhoused Black Ohioans, Malissa Williams and Timothy Russell. The city was supposed to make modest reforms—like tweaking staffing, recruitment and policing tactics—that abolitionists see as only reinforcing police power. Five years later, they’re still not implemented.
“They’re not perfect,” Vanita Gupta, a litigator who formerly served in one of the positions now authorized to oversee consent decrees, told PBS amid the 2020 uprisings against systemic police racism. “Under no stretch of the imagination do they accomplish everything that one would hope. There’s backsliding that happens, there’s all kinds of outside factors that come in to take place.”
Undermining consent decrees has been something of a cornerstone of Trump’s attorneys general. Federal prosecutors have taken a back seat in enforcing consent decrees and have not arranged any new ones under Trump, having only conducted a single investigation.
Undermining consent decrees has been something of a cornerstone of Trump’s attorneys general.
Before Barr, then-AG Jeff Sessions issued a November 7, 2018, memorandum to civil federal prosecutors on his last day in office directing them to limit the use of monitors in consent decrees. Advocates denounced his recommendations.
“The principles in former Attorney General Sessions’ directive, purportedly to use Department resources to promote a peaceful and lawful society where the civil rights of all persons are protected,” criminal justice advocates including the American Civil Liberties Union wrote in a June 2019 letter, “actually abdicate DOJ’s obligation to enforce civil rights laws by underscoring that ‘it is not the responsibility of federal government to manage non-federal law enforcement agencies.'”
The manner in which Trump’s attorneys general enacted such policy effectively shut out criminal justice reform advocates and experts from weighing in. While Barr entirely bypassed requesting public comment, Sessions “excluded many [criminal justice reform organizations] that have successfully addressed unconstitutional policing practices in communities across the country,” according to the 2019 letter, which was written in response to a so-called “listening session” held by the DOJ on Sessions’ memoranda on consent decrees and police.
Some abolitionists appreciate police accountability as long as police are around—but their approach differs from the consent decree model.
Like Gupta and reformists, some abolitionists appreciate police accountability for as long as police are still around—but their approach is markedly different than the consent decree model. In a 2014 article responding to Obama’s call for more body cameras, prominent abolitionist activist Mariame Kaba called for, among other things, “[p]roposals and legislation for (elected) independent civilian police accountability boards with power to investigate, discipline, fire police officers and administrators.”
Despite acknowledging the shortcomings of consent decrees, Gupta sees them as an important option. “It is the most robust tool that exists,” she said in the PBS interview, “and there is no equivalent to the Justice Department being able to do it.”
Photo by the Office of Public Affairs via Public Domain