Dead­line for re­form

Our view: Mem­bers of the Md. con­gres­sional del­e­ga­tion are right to worry about the pace of ne­go­ti­a­tions on city po­lice re­form, which could stall un­der Trump

Baltimore Sun - - FROM PAGE ONE -

Six mem­bers of Bal­ti­more’s con­gres­sional del­e­ga­tion took the un­usual step last week of send­ing Mayor Stephanie Rawl­ings-Blake and the U.S. De­part­ment of Jus­tice a let­ter ex­press­ing con­cern about the pace of ne­go­ti­a­tions over a con­sent de­cree man­dat­ing re­forms in the city’s Po­lice De­part­ment. The mayor wrote back, say­ing that the process, which be­gan af­ter Fred­die Gray’s death led to ri­ots, is pro­ceed­ing apace or faster than sim­i­lar ne­go­ti­a­tions in other cities. She ac­knowl­edged, how­ever, that it won’t be com­plete be­fore she leaves of­fice, as had orig­i­nally been hoped.

But that’s not the change in ad­min­is­tra­tions the rep­re­sen­ta­tives and sen­a­tors were wor­ried about. Mayor-elect Cather­ine Pugh is not the prob­lem. Don­ald Trump is. The can­di­date who in­toned the words “law and or­der” re­peat­edly in his ac­cep­tance speech at the Repub­li­can Na­tional Con­ven­tion last sum­mer has made clear that he fa­vors the kind of ag­gres­sive law en­force­ment tac­tics the DOJ and Bal­ti­more Po­lice De­part­ment are at­tempt­ing to root out. Mr. Trump said dur­ing one of the de­bates this fall that the fail­ure to em­ploy tac­tics like stop-and-frisk was “very un­fair” to mi­nori­ties in Amer­ica’s in­ner cities, but the ex­pe­ri­ence of Bal­ti­more, where sim­i­lar tac­tics led to mass ar­rests on ques­tion­able pre­texts dur­ing the Martin O’Mal­ley era, was pre­cisely the op­po­site.

If there weren’t enough signs al­ready that Mr. Trump’s ad­min­is­tra­tion wouldn’t be as ag­gres­sive about us­ing the tools avail­able to the DOJto en­force re­forms in lo­cal po­lice de­part­ments, his se­lec­tion of Alabama Sen. Jeff Ses­sions as his nom­i­nee for at­tor­ney gen­eral should set off a huge alarm.

Sen­a­tor Ses­sions said dur­ing a Se­nate com­mit­tee hear­ing last year that “the kinds of prob­lems we’re see­ing and the le­gal ac­tions that have been taken and the marches in protest about po­lice do have the ten­dency to cause [po­lice] ... to stay un­der the shade tree, and not walk the streets.”

Specif­i­cally, he has crit­i­cized the use of con­sent de­crees to man­date re­forms. In the fore­word to a 2008 pa­per on con­sent de­crees by the Alabama Pol­icy In­sti­tute, he wrote:

“One of the most dan­ger­ous, and rarely dis­cussed, ex­er­cises of raw power is the is­suance of ex­pan­sive court de­crees. Con­sent de­crees have a pro­found ef­fect on our le­gal sys­tem as they con­sti­tute an end run around the demo­cratic process. Such de­crees are par­tic­u­larly of­fen­sive when cer­tain gov­ern­men­tal agen­cies se­cretly de­light in be­ing sued be­cause they hope a set­tle­ment will be reached re­sult­ing in the agency re­ceiv­ing more money than what the leg­isla­tive branch or other fund­ing source would oth­er­wise have deemed jus­ti­fied. Thus, the tax­pay­ers ul­ti­mately fund the set­tle­ment en­acted through this un­demo­cratic process.

“A con­sent de­cree is the equiv­a­lent of a leg­isla­tive en­act­ment cre­ated at the hands of the courts, and of­ten less sub­ject to mod­i­fi­ca­tion. By en­ter­ing into th­ese de­crees, cur­rent state ex­ec­u­tives, such as gover­nors or at­tor­neys gen­eral, can bind the hands of fu­ture state ex­ec­u­tives and leg­is­la­tures. A pre­de­ces­sor’s con­sent de­cree is dif­fi­cult to al­ter or end; in prac­tice, a de­cree can Sen. Jeff Ses­sions, Don­ald Trump’s nom­i­nee for at­tor­ney gen­eral, is un­likely to pur­sue po­lice re­form in Bal­ti­more and other cities to the ex­tent that the Obama De­part­ment of Jus­tice has. last for many years — longer than the rem­edy that was needed.”

We’re not sure how much more clearly Mr. Ses­sions could have ex­pressed his dis­taste for pre­cisely the kind of set­tle­ment Ms. Rawl­ings-Blake is ne­go­ti­at­ing and which this city needs if it is to re­build the trust be­tween the com­mu­nity and the po­lice. Some of the re­forms that would be nec­es­sary to fully ad­dress the prob­lems cited in the DOJ’s re­port on Bal­ti­more’s Po­lice De­part­ment will be ex­pen­sive. They will likely in­volve new re­cruit­ment and train­ing prac­tices, bet­ter tech­nol­ogy, ef­forts to re­tain ex­pe­ri­enced of­fi­cers and in­creased over­sight. Mayor Rawl­ings-Blake has al­ready asked the state for as­sis­tance in meet­ing some an­tic­i­pated costs, and Ms. Pugh and the in­com­ing City Coun­cil will be on the hook to fig­ure out how to pay for what­ever the gov­er­nor and leg­is­la­ture don’t cover.

That kind of dynamic has caused prob­lems else­where. Early this year, the City Coun­cil in Fer­gu­son, Mo., balked at the pro­jected costs of the con­sent de­cree that city en­tered into af­ter the ri­ots sparked by the death of Michael Brown, and the DOJ promptly sued. The two par­ties set­tled two months later. That wouldn’t have hap­pened if At­tor­ney Gen­eral Loretta Lynch had not been com­mit­ted to us­ing the power of her agency to force the is­sue.

It’s not nec­es­sary for the fed­eral govern­ment and the city to come to an agree­ment be­fore Ms. Rawl­ings-Blake leaves of­fice. In fact, it might be prefer­able for Ms. Pugh to have her fin­ger­prints on the deal — she will be the one who will have to see it through, and she should have some own­er­ship of it. But it is ab­so­lutely im­per­a­tive for it to be fi­nal­ized be­fore Jan. 20, the day Mr. Trump is to be in­au­gu­rated. Once a deal is ac­cepted by the courts, a fed­eral judge will have the power to see that it is en­forced, no mat­ter whois at­tor­ney gen­eral. But if that doesn’t hap­pen be­fore Mr. Trump ar­rives, Bal­ti­more’s po­lice re­form ef­fort will be at risk.


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