Is Baltimore’s con­sent de­cree a ploy?

Baltimore Sun - - COMMENTARY - By Ge­orge Lieb­mann Ge­orge Lieb­mann is the vol­un­teer ex­ec­u­tive di­rec­tor of the Calvert In­sti­tute for Pol­icy Re­search and the ed­i­tor of “Pro­hi­bi­tion in Mary­land: A Col­lec­tion of Doc­u­ments,” avail­able from info@calvertin­sti­

In 1994, the Clin­ton ad­min­is­tra­tion, pos­ing as tough on crime, spon­sored the Vi­o­lent Crime Con­trol and Law En­force­ment Act, in­ten­si­fy­ing in­car­cer­a­tion, cap­i­tal pun­ish­ment and the “drug war,” and au­tho­riz­ing fed­eral in­junc­tions against “pat­terns or prac­tices of mis­con­duct” by lo­cal po­lice. Some so-called civil rights lead­ers urged use of this statute to fed­er­ally con­trol lo­cal po­lice and their train­ing, and the Obama ad­min­is­tra­tion has obliged; wit­ness the re­cent in­ves­ti­ga­tion into the Baltimore Po­lice Depart­ment.

Baltimore Mayor Stephanie Rawl­ingsBlake, ea­ger to shift blame for her han­dling of demon­stra­tions fol­low­ing the 2014 death of Fred­die Gray, who re­ceived a fa­tal in­jury while in po­lice cus­tody, called on the U.S. Depart­ment of Jus­tice to in­ter­vene. The Spe­cial Lit­i­ga­tion Sec­tion of the DOJ’s Civil Rights Di­vi­sion, a pros­e­cu­to­rial group un­versed in po­lice ad­min­is­tra­tion, took on the chal­lenge, and ac­cord­ing to its lengthy re­port, ex­pects a “com­pre­hen­sive court en­force­able con­sent de­cree” to be or­dered soon. The fix, as they say, is in. Such con­sent de­crees are — as New York Law School pro­fes­sors Ross San­dler and David Schoen­brod have shown — con­spir­a­cies be­tween fed­eral and lo­cal bu­reau­cra­cies to se­cure ad­di­tional funds from lo­cal tax­pay­ers and the state. Aware that sub­se­quent ad­min­is­tra­tions can, with good rea­son, seek to re­open such de­crees, both the lame-duck ad­min­is­tra­tions of Mr. Obama and Ms. Rawl­ings-Blake hope to pre­vent this with the scathing and sen­sa­tion­ally re­leased 163-page re­port.

Most of the com­plaints in the doc­u­ment oc­curred in 2014 or ear­lier — a gar­land of old chest­nuts. The re­port’s worst of­fenses are mis­state­ment of the law and a di­vi­sive charge of racial dis­crim­i­na­tion by po­lice of­fi­cers. The re­port as­serts that “dis­parate im­pact” on a race is largely pro­hib­ited, but nowhere in the reg­u­la­tions it cites is this phrase used. Im­pact alone is usu­ally not enough to de­ter­mine wrong­do­ing; the con­text and other ev­i­dence is key.

The re­port com­plains that stops, searches and ar­rests are fo­cused on cer­tain black neigh­bor­hoods and com­pares ar­rest ar­eas with hous­ing maps from 1937. Ab­sent are The Sun’s pe­ri­odic maps of Baltimore City homi­cides, which cor­re­spond closely to ar­eas of in­tense polic­ing.

This is the 13th stroke of the old clock that casts doubt on much else in the re­port. Polic­ing has as its pur­pose the el­e­va­tion of be­hav­ior. Ar­eas with se­ri­ous crime may be fo­cused on with­out cries of “dis­crim­i­na­tion.”

Un­like the same agency’s Cleve­land re­port, the Baltimore re­port con­tains no sig­na­tures and records no par­tic­i­pa­tion by the lo­cal U.S. at­tor­ney. It ap­pears that no named per­son wants to be as­so­ci­ated with its in­tel­lec­tual dis­hon­esty. The re­port also sig­nif­i­cantly de­clares:

“We do not, at this time, find rea­son­able cause to be­lieve that BPD en­gages in gen­der-bi­ased polic­ing in vi­o­la­tion of fed­eral law.”

“We also ex­am­ined BPD’s trans­porta­tion of de­tainees, but were un­able to make a find­ing due to a lack of avail­able data.”

“We draw no firm con­clu­sions about [the] rel­a­tive im­pact [of the use of force] on African Amer­i­cans be­cause we did not com­pare the rates of force to any ‘bench­mark’ of en­coun­ters in which force is war­ranted.”

The re­port crit­i­cizes racial dis­par­i­ties in drug ar­rests, not­ing that drug us­age among blacks is no higher than among whites, but con­cedes that “gang ac­tiv­ity and a drug econ­omy are also prominent fea­tures of Baltimore’s crime land­scape” and en­demic in cer­tain black neigh­bor­hoods.

There is no ev­i­dence of re­cent in­cite­ment of un­con­sti­tu­tional ac­tiv­ity from po­lit­i­cal or po­lice lead­ers, only “de­fi­cient su­per­vi­sion and over­sight of of­fi­cer ac­tiv­ity.” The BPD’s In­ter­nal Af­fairs Unit needs im­prove­ment, but more re­port-writ­ing and sec­ond-guess­ing while the BPD is un­der siege will not bind neigh­bor­ing po­lice forces and will fur­ther de­press morale and re­cruit­ing.

The BPD has been de­pleted by the re­tire­ment of se­nior of­fi­cers re­sult­ing from the re­volv­ing door of po­lice com­mis­sion­ers dur­ing the O’Mal­ley and Rawl­ings-Blake ad­min­is­tra­tions. Turnover in lower ranks has been ac­cel­er­ated by the re­tire­ment after 20 years al­lowed by the Schmoke ad­min­is­tra­tion to cre­ate va­can­cies for af­fir­ma­tive­ac­tion pur­poses, cre­at­ing enor­mous pen­sion costs. These mat­ters are nowhere men­tioned in the re­port.

New York Po­lice Com­mis­sioner Wil­liam Brat­ton has ad­vo­cated train­ing, not more ex­ter­nal re­straints, as the pri­mary rem­edy for trou­bled po­lice de­part­ments. The Baltimore re­port, in its most alarm­ing find­ing, re­lates that “train­ing staff fell from ap­prox­i­mately 60 in 2013 to 20 cur­rently” with­out of­fer­ing an ex­pla­na­tion. But en­hanced train­ing re­quires no con­sent de­cree.

The sup­pos­edly im­proper searches com­plained of are searches for drug con­tra­band. Baltimore’s homi­cides are the prod­uct of con­flicts be­tween drug deal­ers who have no re­course in the courts.

Fed­eral drug war poli­cies are the ele­phant in the liv­ing room with re­spect to po­lice-com­mu­nity re­la­tions; they are un­men­tioned in this re­port, whose ob­ject is but mo­bi­liza­tion of a po­lit­i­cal base in an elec­tion year — the ob­ject also of for­mer At­tor­ney Gen­eral Eric Holder’s post-Fer­gu­son speak­ing tour of the na­tion’s large ci­ties.

Our Con­sti­tu­tion and Bill of Rights were de­signed to pre­vent cen­tral­ized con­trol of polic­ing. As Jus­tice Robert Jack­son once said: “I think the po­ten­tial­i­ties of a fed­eral, cen­tral­ized po­lice sys­tem for ul­ti­mate sub­ver­sion of our sys­tem of free gov­ern­ment is very great.”

Cir­cum­vent­ing that sys­tem through long-lived con­sent de­crees puts us all in jeop­ardy.

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