Garland rolls back Trump-era restrictions on forcing local police reforms
WASHINGTON — Attorney General Merrick Garland on Friday rescinded a Trump-era near-ban on the Justice Department’s use of consent decrees to force the restructuring of local law enforcement agencies, signaling a push from the Biden administration to resume use of the tactic amid a continued outcry from liberal groups about abusive policing.
In a four-page memo to Justice Department staffers, Garland said he would rescind the 2018 order from then-Attorney General Jeff Sessions that aimed to drastically limit the use of the settlement agreements with local police agencies.
Under Garland’s memo, Justice Department lawyers who are leading the litigation, including the assistant attorneys general or U.S. attorneys, will be authorized to approve the consent decrees.
“It is done so because they are the Department officials most familiar with and best able to assess each particular case,” Garland wrote.
The move comes amid the high-profile trial of Derek Chauvin, a former Minneapolis police officer who is facing charges of murder and manslaughter in the May 2020 death of George Floyd, a Black man who died while being arrested. Chauvin put a knee on Floyd’s neck for more than nine minutes while pinning him to the ground.
Mass protests ensued in cities across the country, led by the Black Lives Matter movement, which has pushed to “defund the police.” Garland and several of his potential deputies, who await Senate approval of their nominations, have promised to bring renewed focus to curbing abusive policing, although they have stopped short of supporting the idea of defunding police departments.
The Justice Department can use consent decrees with local jurisdictions to avoid litigation on matters including policing, education, fair housing, sexual harassment and discrimination in the workplace, and voting rights. In some cases, a monitor is appointed to oversee compliance, and the agreements typically allow for federal enforcement if the terms are breached by localities.
During the Obama administration, the Justice Department entered into consent decrees 15 times with local police agencies, including in Ferguson, Mo., Baltimore, Cleveland and New Orleans. The George W. Bush administration used consent decrees three times.
But Sessions sought to severely restrict their use, saying they harm morale in police departments. He issued his order in one of his final acts in office before being fired by President Donald Trump.
The Trump administration did not enter into a single consent decree in its four years, and it moved to undermine existing agreements, including pulling out of a pact the Justice Department had been on the verge of signing with Chicago police in 2017.
“It is not the responsibility of the federal government to manage nonfederal law enforcement agencies,” Sessions wrote.
Jonathan Smith, who oversaw the special litigation section of the Justice Department’s civil rights division in the Obama administration, called Garland’s action a “tremendous step forward” and said consent decrees helped improve troubled police departments.
Yet he acknowledged that the department’s powers to force sweeping cultural reforms are limited.
“In order to fix these departments, you don’t just need a few new policies. You need sustained compliance over a long period of time, and consent decrees are the only thing that can do that,” said Smith, now executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
“But the one thing you have to remember is that a consent decree is designed for a very specific purpose: to make police departments comply with the Constitution and the law,” Smith said. “There are a lot of things the Constitution permits the police to do that the community might not want them to do. Consent decrees do not get to that.”
Critics of consent decrees, including some police union leaders, have cited a rise in crimes in some cities. But studies have shown that such increases are temporary. A review of such agreements by researchers at the University of Texas at Dallas found that the number of civil rights lawsuits decreased in some jurisdictions operating under such agreements.
Community activists have expressed frustration over what they say is the failure of the agreements to do more to rein in abusive officers.
In Seattle, the police department entered into a consent agreement with the Justice Department in 2012 after a federal investigation determined that Seattle officers had frequently used excessive force with few consequences. More than eight years later, the department is still operating under federal oversight, despite initially having been found to be in compliance with the agreement in 2018.
Community activist Kevin Schofield wrote last summer that the Seattle Police Department has made significant progress in reducing its officers’ use of force. But he said that force continues to be used at disproportionately higher levels against racial minorities, particularly African Americans.
“While a lot of good came out of the reforms driven by the consent decree, the underlying problems have not been exorcised; many have simply been papered over with bureaucracy,” he wrote. “The consent decree didn’t do what we had hoped it would do. The structural racism, biased policing practices, and overpolicing continue; we’ve just made them harder to see.”
Garland’s incoming leadership team appears poised to quickly resume the use of the agreements. Vanita Gupta, whom President Joe Biden nominated to oversee the civil division as associate attorney general, sharply criticized the Trump administration as having “completely gutted” police reform efforts. Gupta, who is awaiting Senate confirmation, helped negotiate several consent decrees while serving as acting director of the department’s civil rights division during the Obama administration.