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On his way out, Sessions guts one of the most important tools for ending police abuse
Jeff Sessions went out as he came in, an enemy of civil rights and hostile to his department’s mission to protect them. The Department of Justice announced yesterday that in one of his final moves as attorney general, Sessions signed a memorandum on Wednesday to limit the use of consent decrees, one of the most powerful tools the DOJ’s Civil Rights Division has at its disposal in ending abuse by police departments and improving relationships between law enforcement and the communities they serve. [Katie Benner / New York Times]
Sessions entered the attorney general’s office a fierce critic of consent decrees. As a senator, he wrote that they “constitute an end run around the democratic process.” In March 2017, he ordered a review of all consent decrees with police departments. Days earlier, the Justice Department sought unsuccessfully to block a consent decree with the Baltimore Police Department negotiated in the final days of the Obama administration. While consent decrees were not entirely abandoned, there was “a presumption against their use.” [Jessica Huseman and Annie Waldman / ProPublica]
An article in ProPublica examining consent decrees and their jeopardized status under Sessions noted that they were effective because they “often require agencies or municipalities to take expensive steps toward reform” and allow local leaders and agencies to “point to the binding court authority when requesting budget increases to ensure reforms.” William Yeomans, a former DOJ lawyer, told ProPublica that without consent decrees, many localities or departments simply would not make the comprehensive changes needed. “They are key to civil rights enforcement,” he said. “That’s why Sessions and his ilk don’t like them.” [Jessica Huseman and Annie Waldman / ProPublica]
The use of consent decrees dates back decades, after Congress in 1994, following the Rodney King beating by Los Angeles police, authorized the Justice Department to investigate local police departments and chart a course for reforms. The Justice Department typically begins by undertaking “pattern-or-practice” investigations of troubled police departments, looking for systemic police misconduct, including racial discrimination and the use of force. During the Obama administration and under Attorneys General Eric Holder and Loretta Lynch, the Department of Justice entered into 14 consent decrees with police departments around the country, including in Baltimore, New Orleans, and Ferguson, Missouri. [Mark Berman / Washington Post]
The memorandum that Sessions signed on his way out the door was a final attempt to kill off these agreements. It imposes three new requirements on their use that civil rights attorneys say will give the Civil Rights Division substantially less power to bring about reform in policing. Under the terms of the memorandum, consent decrees going forward will have to be approved by a high-ranking political appointee rather than career lawyers as had previously been the case. It also states that in making the case for a consent decree, DOJ attorneys will have to present evidence of conditions beyond unconstitutional actions. Finally, the memorandum seeks to limit the duration, specifying that in most situations they must last no longer than three years and must include a “sunset provision” that allows termination even if the specific terms of the decree have not been met.
[Memorandum from the Attorney General ]
Civil rights lawyers condemned Sessions’ actions. Vanita Gupta, the head of the Civil Rights Division under Barack Obama and chief executive of the Leadership Conference on Civil and Human Rights, wrote that the memo “is designed to restrict consent decrees and creates a series of increasingly higher roadblocks to render them rare and ineffective.” She defended consent decrees as “a necessary, careful tool to ensure entities such as schools, employers, and law enforcement remedy patterns and practices of unconstitutional conduct” used only “when there is clear, overwhelming, and well documented evidence” and said that “[t]he rationale for such oversight has not disappeared.” [Vanita Gupta / Leadership Conference on Civil and Human Rights]
Sasha Samberg-Champion, a former Justice Department lawyer and Counsel at the civil rights firm Relman, Dane & Colfax pointed out on Twitter that the memorandum would make it significantly more difficult to bring about comprehensive reform. “Traditionally, Division enters into settlement decrees rather than litigating to obtain injunctive relief,” he wrote. “Under this memo, consent decrees can only be reached with proven bad actors rather than as litigation alternative. That’s going to make it much harder to get anything done.” Furthermore, he wrote, “the relief can’t be different from what would be available in successful litigation. That’s going to really limit flexibility to work out creative solutions.” He offered the Civil Rights Division’s consent decree with Ferguson as an example, saying, “It’s doubtful some of this could have been obtained in adversarial litigation. But it’s what was needed to comprehensively change practices.”
Sessions’ hatred of consent decrees was manifest throughout his tenure. In a speech he made to the National Association of Police Organizations in May, he painted law enforcement as the victim of “[s]ome radicals and politicians” who “began to unfairly malign and blame police as a whole for the crimes and unacceptable deeds of a few” and “wanted the ACLU to determine police policies, and that was enforced by a federal court order.” He promised that “we will not malign entire police departments. We will not try to micromanage their daily work all the way from Washington, D.C. We will not enter into agreements or court decrees that outsource policymaking to political activists.” And identifying with the president who just fired him, he assured his audience: “This is the Trump era. We support law enforcement.” [Department of Justice]
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