Is Baltimore’s consent decree a ploy?
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.