The troubled Baltimore Police Department may soon see some major reforms — or not. After five months of negotiations, Maryland’s largest metropolis and the U.S. Department of Justice just entered into a consent decree, legally binding Baltimore to implement reforms that were recommended as part of a damning report by the DOJ in August. Investigators identified racial bias at “every stage” of Baltimore PD’s enforcement activities, which included extreme tactics such as helicopter surveillance to monitor dice-playing and other misdemeanor crimes in minority neighborhoods.
But change is also coming to the DOJ, and some law enforcement experts doubt whether Alabama Sen. Jeff Sessions, if confirmed as U.S. attorney general, would continue to rigorously enforce such efforts to reform problematic police departments.
Consent decrees are a court-enforceable agreement between two parties. In the context of law enforcement, consent decrees can arise as a result of “pattern or practice” DOJ investigations, which probe allegations of systemic issues like poor jail conditions or racial profiling.
Pattern and practice investigations in recent years have helped shed light on routine police misconduct in some departments, like in Ferguson, Missouri, and Cleveland, Ohio. In the case of Baltimore, the investigation was prompted by the in-custody death of Freddie Gray, a 25-year-old black man. Gray’s death sparked violent riots across Baltimore and revealed a deep schism between police and the communities they serve.
Such systemic problems can theoretically be resolved through consent decrees with the DOJ, which mandates a department to implement reforms. The decrees are enforced by independent monitors who track reform progress. Some of the reforms mandated by the 227-page consent decree with Baltimore include establishing a community-based task force to ensure adequate civilian oversight of police activities, developing outreach programs to heal broken trust with communities, and recording data on vehicle stops.
The consent decree with Baltimore makes it the 12th law enforcement agency to enter into such an agreement with the DOJ under the Obama administration. By comparison, the Bush administration imposed just three consent decrees on law enforcement.
Sessions, as VICE News reported last month, has made it pretty clear he doesn’t like consent decrees. In the introduction to a 2008 report by the Alabama Policy Institute, a conservative think tank, Sessions described consent decrees as “dangerous” “exercises of raw power” that “constitute an end run around the democratic process.” He also recalled how, in his first days as Alabama’s attorney general in 1994, he had to “immediately deal with a consent decree” established by his predecessor, Jimmy Evans. The decree came about as a result of a lawsuit from a black plaintiff charging that the political process was stacked against African-American voters, and the solution was to add two seats to the state’s supreme court, which could be filled by black justices. The decree was signed off by a federal judge, but Sessions was unsatisfied.
“I thought the consent decree was completely unconstitutional,” Sessions wrote. “When I became attorney general, I objected to this decree and was successful on appeal in having the 11th Circuit Court of Appeals reject it.”
Whether he’d bring the same attitude to existing consent decrees as attorney general of the U.S. was raised during his confirmation hearing earlier this week by Democratic Sen. Mazie Hirono from Hawaii.
“Those decrees remain in force until and if they are changed,” Sessions said, adding that consent decrees are “not necessarily a bad thing” but that “there’s concern that good police officers and good departments” shoulder responsibility for the actions of a few bad apples.
Lawsuits against police departments “undermine the respect for police officers and create an impression that the entire department is not doing their work consistent with fidelity to law and fairness,” Sessions said. “We need to be careful before we do that.”
William Yeomans, who served in senior positions in the DOJ’s Civil Rights Division from 1978 to 2005, told VICE News last month that he thought Sessions would likely enforce consent decrees, at least at first. But now, after listening to Sessions in the hearings this week, his skepticism is confirmed.
“It appears clearer than ever that his [Sessions’] DOJ will be unlikely to pursue consent decrees,” Yeomans told VICE News on Thursday, noting that the Alabama senator’s position doesn’t seem to have changed much from 2008. “He also made it quite clear that he is likely to take the side of law enforcement in disputes over the lawfulness of police conduct,” Yeomans added. “His confirmation will bode ill for reform and for progress toward constitutional policing.”
Stephen Rushin, who teaches law at the University of Alabama, said he expects Sessions to “de-emphasize the enforcement” of consent decrees during his tenure as attorney general, adding that a similar “de-emphasis” on consent decrees was also seen in the last Republican administration, under George W. Bush. “I’d imagine that the DOJ would not go out of their way to disrupt consent decrees that are currently in effect,” Rushin said. “But I would expect Sessions to reduce the frequency of federal interventions into local police departments.”